Sometimes, a witness says he just can’t remember. It may well be a convenient memory lapse, but it is hard to prove such forgetfulness is a crime.
I. Lewis “Scooter” Libby, however, is accused of something far more elaborate. Special Prosecutor Patrick J. Fitzgerald alleges that Libby made up a false story to deceive investigators and then told the lie under oath to the grand jury.
Telling a false story to a federal prosecutor who knows the facts is a sure ticket to an indictment, legal experts said Friday. And, they said, Fitzgerald appears to have built a strong case.
“That’s unacceptable. You can’t lie, make up conversations that didn’t happen and expect you are not going to be charged with a crime,” said George Washington University law professor Stephen A. Saltzburg.
Fitzgerald has been investigating whether anyone in the administration violated federal law by leaking the identity of CIA agent Valerie Plame. Many have suggested that her identity was disclosed in retribution against her husband, former U.S. envoy Joseph C. Wilson IV, a critic of the Bush administration’s Iraq invasion.
Libby was indicted on one count of obstruction of justice, two counts of making false statements to FBI agents and two counts of perjury in connection with his grand jury testimony.
According to the indictment, Libby told investigators that he first learned from reporters in July 2003 that Plame worked for the CIA. In fact, Libby had talked that June with officials at the CIA and the State Department and with Vice President Dick Cheney about Plame and her employment at the CIA, according to the indictment.
On July 6, Wilson wrote an op-ed piece in the New York Times that cast doubt on President Bush’s statement that Iraq may have purchased yellowcake uranium from Niger.
In the next few days, Libby spoke with NBC’s Tim Russert, Time magazine’s Matt Cooper and New York Times reporter Judith Miller. The indictment says all three contradicted Libby’s version of their separate conversations with him.
Russert told the grand jury that he and Libby did not discuss Wilson’s wife when they spoke on July 10 or July 11 and that he did not learn Plame’s name until it was published in a column by Robert Novak on July 14.
But according to the indictment, Libby testified that Russert “said to me, did you know that Ambassador Wilson’s wife ... works at the CIA? And I said no, I don’t know that. And then he said yeah, all the reporters know it. And I said again, I don’t know that.... I was struck by what he was saying in that he thought it was an important fact, but I didn’t ask him any more about it.”
Later that week, Novak disclosed that he had learned from “senior administration officials” that Wilson’s wife was a CIA operative.
Nonetheless, when federal investigators began looking into who leaked Plame’s name to the media, Libby told them that he had learned of her from the news reporters. He repeated the same story when called before the grand jury in 2004.
“When citizens testify before grand juries, they are required to tell the truth,” Fitzgerald said.
Like many in Washington before him, Libby was indicted for an alleged cover-up, rather than the crime that the prosecutor set out to investigate.
It is also similar to the insider-trading case that snared Martha Stewart. She was not charged with insider trading, but with telling a false story to investigators.
“The one ironclad rule of white-collar crime is you get indicted not for what you originally did but for what you did after the investigation started,” said Columbia University law professor John C. Coffee Jr. “It is much easier to prove that you lied to investigators than to prove you were the original source” of the leak.
The indictment also makes clear how critical the journalists’ testimony is to Fitzgerald’s case. Cooper refused to testify for nearly a year, and Miller spent 85 days in jail until Libby granted her a waiver from her pledge of confidentiality.
Fitzgerald would have no case “without the journalist witnesses. We are in an interesting new world,” said Rory Little, a former federal prosecutor who teaches criminal law at the University of California’s Hastings College of the Law in San Francisco. “Why would a guy as smart and as experienced as Libby go in and lie? One reason is he was still living in the world where journalists were not compelled to testify.”
Little cautioned it was possible that Russert gave an inaccurate account and that Libby would be vindicated. However, if the allegations are true and Libby made up his story “out of whole cloth,” he added, “it is the hubris of a high-ranking government official who doesn’t believe it will come out, and if it does, there is deniability. If you want to spread this around, you talk to one reporter and then call another reporter and say this is what I heard. The allegation reads as a vicious, cynical use of the media.”
Fitzgerald did not explain why he did not indict Libby for violating the 1982 law that makes it a crime to disclose the identity of an undercover CIA agent. One possibility is that he could not prove that Libby knew that Wilson’s wife was an undercover agent.
Nonetheless, criminal law experts who read the indictment said it made a strong case against Cheney’s chief of staff.
The indictment “is very well wrought,” said Stanford University criminal law professor Robert Weisberg. “Fitzgerald made sure that he could establish such a consistent discrepancy between what is now known to be true and what Libby repeatedly said.”
Prosecutors must prove Libby intended to deceive the grand jurors, but “it’s going to be very hard to find a reasonable doubt on intent to deceive,” Weisberg said. “This is very strong evidence [and] as clear a case as I can imagine.”
Brian O’Neill, a former federal prosecutor and now a defense lawyer in Los Angeles, called the indictment a “blockbuster.” “I would not want to defend this case,” he said. “There is such a compelling narrative story.”
(BEGIN TEXT OF INFOBOX)
Feb. 12: Vice President Dick Cheney asks the CIA to look into reports that Iraqi President Saddam Hussein attempted to buy uranium yellowcake from Niger.
Feb. 19: The CIA dispatches former Ambassador Joseph C. Wilson IV to Niger to investigate.
March 9: Wilson reports his findings to the CIA: It was “highly doubtful any such transaction had ever taken place.”
Sept. 24: British Prime Minister Tony Blair tells Parliament: “We know Saddam has been trying to buy significant quantities of uranium from Africa though we do not know if he has been successful.”
Oct. 5 and 6: Skeptical of the Niger claim, CIA Director George J. Tenet persuades the White House to remove it from a speech President Bush gives in Ohio.
Jan. 28: Bush says in the State of the Union: “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.”
Feb. 5: Secretary of State Colin L. Powell does not include uranium claim in his speech to the U.N. making the case for war.
March 20: U.S. invades Iraq.
May 6: New York Times columnist Nicholas D. Kristof, without mentioning Wilson by name, says the envoy to Niger told the administration that the uranium story was “unequivocally wrong.”
June 23: New York Times reporter Judith Miller meets with Cheney Chief of Staff I. Lewis “Scooter” Libby and is told Wilson’s wife had a role in sending him to Niger.
July 6: Wilson writes “What I Didn’t Find in Africa,” an op-ed piece published in the New York Times that says the administration “twisted” intelligence “to exaggerate the Iraqi threat.”
July 7 to 9: Columnist Robert Novak talks to Karl Rove, Bush’s top political advisor, and one other administration source about Wilson’s wife, CIA operative Valerie Plame, and her husband’s trip.
July 8: The administration acknowledges that the 16 words on Iraq seeking African uranium should not have been in the State of the Union address.
July 11: Rove tells Time magazine reporter Matthew Cooper that Wilson’s wife was responsible for the trip.
July 14: In a column, Novak identifies Plame as Wilson’s wife and the CIA operative who sent him to Niger.
July 21: Wilson says MSNBC’s Chris Matthews tells him, “I just got off the phone with Karl Rove, who said your wife was ‘fair game.’ ”
July 30: The CIA sends a letter to the Justice Department noting “a possible violation of criminal law” in the leak of Plame’s name.
Sept. 16: White House Press Secretary Scott McClellan says it’s “totally ridiculous” to say Rove was a source of the leak.
Sept. 26: The Justice Department begins a criminal inquiry into the leak of Plame’s name.
Oct. 1: McClellan says he has spoken with Rove and Libby and is assured they are not the leakers.
Dec. 30: Patrick J. Fitzgerald is named special prosecutor.
Jan. 23: David Kay, chief U.S. weapons inspector in Iraq, concludes there are no weapons of mass destruction.
July 10: A Senate committee faults prewar intelligence, calls Wilson’s report on Niger “inconclusive” and cites inaccuracies in some of his statements.
Feb. 15: A federal appeals court in Washington orders reporters Miller and Cooper to cooperate with the grand jury.
July 1: Time Inc. turns over subpoenaed material to the prosecutor including e-mails showing that Cooper talked with Rove about Wilson before Novak’s column was published.
July 6: Miller refuses to testify and is jailed. Cooper says he receives waiver from his confidential source, Rove, to testify.
July 15: Rove testifies that he learned the identity of the CIA operative from journalists, then discussed the information, without using Plame’s name, with Cooper.
Sept. 29: Miller agrees to testify and is freed from jail. She says her source, Libby, “voluntarily and personally” released her to do so.
Oct. 6: Rove’s lawyer is told by the special prosecutor that he has “made no decision on whether to charge Karl.”
Oct. 12: Miller testifies again, turns over notes of a previously undisclosed conversation with Libby.
Oct. 14: Rove testifies before the grand jury for a fourth time.
Oct. 16: Miller writes that she can’t recall who told her Plame’s name.
Sources: Senate Committee on Intelligence; Los Angeles Times interviews;
Annenberg Public Policy Center, University of Pennsylvania; wire reports