De La Vega on Libby’s "Some Other Dude Did It" Defense

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Two presiding deities — and lively ghosts they are — continue to hover over the present administration: Vietnam and Watergate. Though the competition between them is fierce, this week Watergate suddenly surged to the fore as the Washington Post’s Bob Woodward, famed investigative reporter turned imperial “stenographer” for the Bush administration, crashed and burst into distinctly Judy-Miller-esque flames. Even Woodward’s blurry account of his testimony for Special Counsel Patrick Fitzgerald had a taste of Millerdom to it. It’s interesting, by the way, that he thought to offer an “apology” to his Washington Post colleagues and boss, but not to the Post’s readers who might wonder why the supposed greatest reporter of our times swallowed the first Plame leak the way a cat might a canary and later went out on the hustings claiming there was little significance to the case. On Larry King Live (“When the story comes out, I’m quite confident we’re going to find out that it started kind of as gossip, as chatter…”) and National Public Radio (“When I think all of the facts come out in this case, it’s going to be laughable because the consequences are not that great”), he dissed the case, while referring to Fitzgerald as “a junkyard-dog prosecutor.” It’s quite a sordid little tale. So prepare yourself for another perfect storm of newspaper and blogging criticism over the sad fate of the mainstream media and our — until recently — less than investigative press.

But I suspect the real story is elsewhere. The great lesson of the Watergate era was: However bad you think things are, however nefarious you believe the administration’s plans and actions might be, however deep you believe their roots might reach, it’s only going to prove worse as the facts emerge — and it looks like one small, new fact has indeed emerged from what Rory O’Connor at the Alternet website is already calling Woodward-gate. The source who informed Woodward of CIA agent Valerie Plame’s name and occupation weeks before it was (as far as we know) slipped to any other reporter was not indicted former Vice Presidential Chief of Staff I. Lewis Libby or, according to the New York Times (which gave the Woodward story the sort of instant front-page attention it so long denied the actions of its own “embedded” reporter Judy Miller), President Bush, or White House Chief of Staff Andrew Card, or Card’s counselor Dan Bartlett, or former Secretary of State Colin Powell, or the former director of the CIA George Tenet, or his deputy John E. McLaughlin, or, for that matter, Karl Rove. It’s someone other.

That someone other — according to Jason Leopold (one of the rare on-line reporters to do regular investigative work) and Larisa Alexandrovna at the Raw Story website — may be former Deputy National Security Adviser, now National Security Adviser Stephen Hadley, a hardliner and part of “a loosely constituted group of foreign policy advisers known as the Vulcans who advised candidate Bush in 2000 and were at the core of the presidential transition team following Bush’s election.” He is well known for his closeness to Vice President Cheney from whose office so much of the Plame affair seems to have been planned. Though not the only suspect, that he might be Woodward’s leaker would hardly be surprising. He was deeply enmeshed in the planning for the Iraqi invasion, seems to have been involved in the touting of the forged Niger “yellowcake” documents, and was even the official “fall-guy” (along with CIA Director Tenet) for those infamous sixteen words on Niger uranium that made it into the President’s 2003 State of the Union Address. As he put it then, “I should have recalled… that there was controversy associated with the uranium issue” (only to repeat in a subsequent Chicago Tribune op-ed the claim that Saddam’s “regime has tried to acquire natural uranium from abroad”). If Hadley is indeed the ur-Plame-leaker, it merely indicates what everyone should by now have suspected — that the discussion of how to discredit ex-ambassador Joseph Wilson’s trip to Niger went wider and deeper than previously known; that, to use a word Patrick Fitzgerald has yet to mention, the “conspiracy” had deep roots indeed.

Looking back on Fitzgerald’s October 28th press conference, two things stand out for me: First, he capitalized brilliantly on an administration mistake. Days before his appearance, the Republicans started leaking “talking points” dismissive of the significance of a Libby indictment. The Special Counsel clearly took the opportunity to study them and much of his press conference was implicitly devoted to dismantling them, something he did so effectively that they have hardly surfaced since. Second, Fitzgerald’s message seemed essentially to be this: He had been pursuing the Plame investigation when one or more people got in his way, obstructing his view; he was now indicting one person (and leaving open the possibility of indicting another on the similar grounds). He was, that is, simply and quite logically clearing his sightlines, leaving the case itself still to be dealt with. In due course, we should expect more of it to come into view.

In the meantime, former federal prosecutor Elizabeth de la Vega who, in The White House Criminal Conspiracy, a cover story for the Nation magazine and for Tomdispatch, recently made a case for the way the Bush administration defrauded the American people into war, considers below what the fate of I. Lewis Libby is actually likely to be. She offers answers that might surprise those who believe Woodward’s revelation will work to Libby’s advantage. De la Vega will continue to cover the Plame case and its ramifications for Tomdispatch. Tom

The “Some Other Dude Did It” Defense of I. Lewis Libby
Is Woodward’s Revelation a Bombshell or a Smokescreen?
By Elizabeth de la Vega

Shortly after Vice President Cheney’s former Chief of Staff, I. Lewis (“Scooter”) Libby, was indicted for obstructing justice and making false statements to a government agent and a grand jury, Libby’s attorneys suggested that they would use the standard he’s-a-busy-man-who-can’t-remember-everything defense. But now, with Washington Post reporter Bob Woodward’s revelation that a senior administration official other than Libby told him, in mid-June 2003, that Joseph Wilson’s trip to Niger had been arranged by Wilson’s CIA operative wife Valerie Wilson, it appears the Libby team has added another favorite, the SODDI Defense — as in, “Some Other Dude Did It.” Unfortunately for Libby, that turkey won’t fly. Here’s why.

Shortly after Vice President Cheney’s former Chief of Staff, I. Lewis (“Scooter”) Libby, was indicted for obstructing justice and making false statements to a government agent and a grand jury, Libby’s attorneys suggested that they would use the standard he’s-a-busy-man-who-can’t-remember-everything defense. But now, with Washington Post reporter Bob Woodward’s revelation that a senior administration official other than Libby told him, in mid-June 2003, that Joseph Wilson’s trip to Niger had been arranged by Wilson’s CIA operative wife Valerie Wilson, it appears the Libby team has added another favorite, the SODDI Defense — as in, “Some Other Dude Did It.” Unfortunately for Libby, that turkey won’t fly. Here’s why.

According to Libby’s attorney, Theodore Wells, Woodward’s disclosure is a “bombshell” that “undermines the prosecution” because it disproves Special Prosecutor Patrick Fitzgerald’s alleged contention that Libby was the first senior administration official to reveal to a reporter that Valerie Wilson worked as a CIA analyst. Not true. For starters, a prosecutor’s press conference statements are irrelevant to, and not admissible in, the trial of the case. And Fitzgerald never said Libby was the first official to have disclosed information about Valerie Wilson; he said Libby was the first official known to have disclosed such information.

More important though, it is of no help to Libby that another administration official, “some other dude,” disclosed classified information about Valerie Wilson’s employment in order to discredit her husband before Libby himself did so. (By the way, Woodward’s impression that the disclosure by his source was “casual” proves nothing about whether the smearing official knew that the information being leaked was classified.) Despite the impression newspaper readers may carry away from the flap over Woodward, Libby is not charged with being the first to disclose Valerie Wilson’s employment; he’s not charged with disclosing anything at all. And in a criminal trial, it is the charges that define the issues. What, exactly, are those charges?

There are five counts. Count One charges Libby with obstructing justice by deceiving the grand jury about when and how he “acquired and subsequently disclosed to the media information concerning the employment of Valerie Wilson by the CIA.” Count Two charges Libby with making false statements to the government about his conversation with NBC News reporter Tim Russert on July 10, 2003. Count Three charges him with making false statements to a government agent about a July 12 discussion with Time magazine reporter Matt Cooper. Four and Five charge him with making false statements to a grand jury about those conversations.

So, the essential questions on which a jury would have to pass judgment at a trial would be:

1. Did Libby make the statements that the indictment alleges he made?

2. Did the statements relate to an issue that was material — that is, important to the investigation?

3. Were those statements true when Libby made them?

4. If the statements were not true, did Libby make them deliberately, knowing they were false? In other words, did he lie on purpose or did he simply make a mistake?

These, and only these, are the questions the jury would consider. As to Count Two, for example, the indictment says that Libby offered the following account to FBI agents in the fall of 2003:

“During a conversation with Tim Russert of NBC News on July 10 or 11, 2003, Russert asked Libby if Libby was aware that Wilson’s wife worked for the CIA. Libby responded to Russert that he did not know that, and Russert replied that all the reporters knew it. Libby was surprised by this statement because, while speaking with Russert, Libby did not recall that he previously had learned about Wilson’s wife’s employment from the Vice President.”

Will there be any question about whether Libby actually made that statement to FBI agents or that it related to an important matter? Probably not.

The contested issues at trial will surely be questions 3 and 4: Whether this statement was a true account of his discussion with Russert and, if not, whether Libby deliberately lied. To determine whether the statement was true, it’s necessary to consider its multiple assertions, which are: (1) In a conversation on July 10 or 11, Russert asked Libby if he was aware that Wilson’s wife worked for the CIA; (2) Libby said he didn’t know that; (3) Russert told him that all the reporters knew it; and (4) Libby was surprised because he did not recall previously learning about Wilson’s wife’s employment from the Vice President.

Russert says he did not ask Libby whether Wilson’s wife worked for the CIA as Libby claimed, nor did he tell him that “all the reporters knew it.” The government’s proof that Libby’s statement was a knowing falsehood does not depend on whether the jury believes Russert over Libby, but it is worth mentioning that Russert has no easily imaginable reason for lying about this. He was a reluctant witness, not criminally at risk, and had no motive to try to incriminate Libby.

More important, however, even without factoring in additional information, Russert’s account is inherently credible and Libby’s is not. Even if Russert did ask whether Libby knew about Wilson’s wife’s employment, it is nearly impossible to believe that Libby could have been “surprised” by the information. After all, he is, by all accounts, an extremely intelligent and meticulous man who, as he admits himself in the statement, had learned about this fact from the Vice President, his boss and our second highest official. Moreover, his statement to the FBI agents can have been no passing slip or mistake, since he elaborated on it six months later. He then told the grand jury that he was “taken aback” by Russert’s question about Wilson’s wife because “at that point in time I did not recall that I had ever known, and I thought this is something that he was telling me that I was first learning.”

Libby’s eternal-sunshine-of-the-spotless-mind defense is harder yet to believe given what the prosecutor is apparently prepared to prove: that Libby had been preoccupied since May 2003 with Wilson’s allegations that the administration knowingly used a false claim about Iraqi attempts to purchase uranium from Niger to make its case for war; and that, by July 10, when Libby talked with Russert, he had discussed Wilson’s wife’s employment not only with the Vice President, but also with at least six other officials including a senior CIA officer, an Undersecretary of State, Libby’s CIA briefer, the White House Press Secretary, the Assistant to the Vice President for Public Affairs, and the Counsel to the Office of the Vice President. In addition, Libby had already talked about it twice with reporter Judith Miller.

As it stands now, Libby is on record as saying that he first learned Joseph Wilson’s wife worked for the CIA from the Vice President. (That he had to admit, since he had notes reflecting the conversation.) What he now claims is that whatever the Vice President told him fled his brain and he only learned about Valerie Plame, as if anew, when Tim Russert spoke with him in July 2003. Even that encounter, Libby says, failed to jar his memory about previous conversations with the Vice President and seven other people, so that when he talked to Time’s Matt Cooper about it on July 12, he was merely relaying what “other reporters,” not the Vice President, had told him. Indeed, Libby specifically described his defense to the grand jury on March 24, 2004 in this improbable way: “I told a couple reporters what other reporters had told us, and I don’t see that as a crime.” (This statement was in itself odd, considering that he specifically told the grand jury he had learned about Wilson’s wife only from Tim Russert.)

Interestingly, Libby’s formulation of his defense — that the information about Valerie Wilson’s employment was the subject of reporter “chatter” and “gossip” — is precisely the spin that Bob Woodward had been offering in appearances on Larry King Live and other talk shows (before he was revealed as the first reporter to have Plame’s information leaked to him). In turn, the Woodward revelation was preceded on November 15 by a leak from “lawyers close to the defense” to the New York Times indicating that the Libby defense team planned to seek testimony from numerous journalists, not just those named in the indictment, in order to determine what the “media really knew.” As Libby’s lawyer put it on November 16, “Hopefully, as more information is obtained from reporters, like Bob Woodward, the real facts will come out.”

Libby’s defense team should be careful what it hopes for, because the real facts don’t help Libby at all. Woodward’s recent disclosure merely adds another senior administration official to the already large group who were obviously working with Libby to distract the public from a truth the administration had already fessed up to — that the President had made an entirely unsubstantiated claim about an Iraqi search for uranium from Niger in his State of the Union Address. It’s not that “some other dude did it” or that “some other dude did it first.” The more the real facts about smearing and deception by senior administration officials come out, the more obvious it is that lots of them did it — and Patrick Fitzgerald shows no signs of folding up his tent and departing. In the meantime, the SODDI defense is likely to prove not only unhelpful to Libby but a potential disaster for the Bush administration, sweeping yet more people into the case.

Elizabeth de la Vega is a former federal prosecutor with more than twenty years’ experience. During her tenure she was a member of the Organized Crime Strike Force and chief of the San José branch of the U.S. Attorney’s Office for the Northern District of California. Her pieces have appeared in the Nation magazine, the Los Angeles Times, and regularly at Tomdispatch.

Copyright 2005 Elizabeth de la Vega