Category: Old Dish

A TPM reader picks up on some very interesting tidbits in a NYT 10/1/05 story, a story that casts new light on the point raised by Greg Djerejian below. Money NYT quote:

A lawyer who knows Mr. Libby’s account said the administration efforts to limit the damage from Mr. Wilson’s criticism extended as high as Mr. Cheney. This lawyer and others who spoke about the case asked that they not be identified because of grand jury secrecy rules.

On July 12, 2003, four days after his initial conversation with Ms. Miller, Mr. Libby consulted with Mr. Cheney about how to handle inquiries from journalists about the vice president’s role in sending Mr. Wilson to Africa in early 2002 to investigate reports that Iraq was trying acquire nuclear material there for its weapons program, the person said.

In that account, Mr. Cheney told Mr. Libby to direct reporters to a statement released the previous day by George J. Tenet, director of central intelligence. His statement said Mr. Wilson had been sent on the mission by C.I.A. counter-proliferation officers “on their own initiative.”

Was this on the plane? Yes, it was:

Mr. Libby has said he spoke with Mr. Cheney on July 12, six days after Mr. Wilson’s article.

Mr. Libby said he told Mr. Cheney that reporters had been pressing the vice president’s office for more details about who sent Mr. Wilson to Africa. The two men spoke when Mr. Cheney was on a trip to Norfolk, Va., for the commissioning of the carrier Ronald Reagan.

Libby doesn’t testify that Cheney told him to leak the name. But Libby’s testimony has been charged with perjury already. What we know from this is that Cheney and Libby conferred about how to respond to reporters’ questions on the matter. Libby subsequently leaked the name.

FITZ AND BUSH: This also strikes me as interesting:

Mr. Fitzgerald was spotted Friday morning outside the office of James Sharp, Mr. Bush’s personal lawyer. Mr. Bush was interviewed about the case by Mr. Fitzgerald last year. It is not known what discussions, if any, were taking place between the prosecutor and Mr. Sharp. Mr. Sharp did not return a phone call, and Mr. Fitzgerald’s spokesman, Randall Samborn, declined to comment.

Hmmm.

And the press is already on the case.

“So then he said – I said – he said, sorry – he said, Mr. Russert said, did you know that Ambassador Wilson’s wife, or his wife, works at the CIA?” – Lewis Libby testifying before the grand jury (page 18 of the indictment).

Some context is important here. I have yet to be even nearly convinced that Plamegate reveals some massive conspiracy to deceive the public in advance about the rationale for the Iraq war. It looks far more likely to me that in 2002, Cheney and Libby were intent on insuring that the CIA was not complacent, and that they weren’t blindsided by Saddam’s WMD program this time the way they were in 1990. I’m grateful for their aggressive attempt to make sure they didn’t ignore threats to this country in the aftermath of 9/11. And they’d now be crucified if a Saddam-made bio weapon had gone off in the U.S. on their watch. What seems more likely to me is that in the aftermath of the war, when their claims largely evaporated, they found it hard to deal with the humiliation. So they over-reached in trying to smear their critics, in the Wilson case, almost certainly violating the law. That’s serious, and it may be a sub-conspiracy. (I have to say I find it entirely credible – though we have no evidence as yet – that Cheney was fully aware of the illegal leak and encouraged it.) But criminality and conspiracy in reaction to post-invasion humiliation is not the same thing as criminality and conspiracy before the war. The anti-war left’s attempt to conflate the two has, as yet, little substance. That’s worth keeping in mind.

THE CASE AGAINST SADDAM: Stephen Hayes makes an interesting point that one consequence of the Fitzgerald investigation is that it has spooked the White House into a failure to make important arguments about why they still had very good reason to depose Saddam. Of course, that’s partly the administration’s fault. If they hadn’t entangled themselves in this mess, they might be freer to make their full case to the public. Like Clinton, Libby did this to himself. And, in a rare moment in the Bush administration, someone is actually being held to account.

THE POPE AND GAY-BASHING: Matthew Parris in the Times of London eviscerates this Pope’s acquiescence to the forces of bigotry. (Bad link now fixed. Apologies.)

VERY, VERY INSIDE BASEBALL: My friend Pete Williams must have felt a little disoriented yesterday:

At one point, Mr. Cheney’s onetime press secretary, Pete Williams of NBC News, asked Mr. Fitzgerald how the prosecutor could take the word of “three reporters” (including his current bureau chief and boss, Tim Russert) “versus the vice president’s chief of staff,” with whom Mr. Williams served in the Pentagon when Mr. Cheney was secretary of defense in the first Bush administration.

Got sand in your eyes yet?

SULU: I find myself wondering what Michelle Malkin’s response was to the news. On the minus side, George Takei’s gay. On the plus, at least they jailed him for a few years in an internment camp in World War II. You can’t win them all, Michelle.

Greg Djerejian wonders what happened on this plane ride:

On or about July 12, 2003, LIBBY flew with the Vice President and others to and from Norfolk, Virginia, on Air Force Two. On his return trip, LIBBY discussed with other officials aboard the plane what LIBBY should say in response to certain pending media inquiries, including questions from Time reporter Matthew Cooper.

(Greg’s italics.) Libby couldn’t have been chatting about this with Cheney, could he?

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Just got through reading a transcript of the Fitz press conference, and a few things stood out.

As bizarre as that baseball analogy was, I think it said a lot about what might happen in the next few days or weeks. Seems to me that when discussing the possibility of a leak-related crime, e.g. violation of either the Intelligence Identities Act or Espionage Act, Fitz focused on how such prosecutions were very difficult because they require proof of a mental state. (Hence the silly analogy about a pitcher throwing at guy’s head.) Under both statutes, the disclosure of classified info must be intentional or purposeful, i.e., the perp must have “known” that the information was classified (for the Espionage Act) or that the agent was “covert,” among other things (under the Intelligence Act). As Fitz asked, “was this something where he intended to cause whatever damage was caused? Or did they intend to do something else and where are the shades of gray?”

I don’t know what Fitz knows. But I think he is one inch from prosecuting the leak itself – at least his public comments leave the impression that he’s pissed about it – and the only thing holding him back is that he’s afraid he can’t prove state of mind. Proving state of mind is really hard in any case — and it’s especially hard when the defendant is an intelligent career political operative with an expensive white collar defense lawyer. I think Fitz can do it, and I think Fitz thinks he can do it, but he seems to be playing it cautious. Why?

Let’s just take the Espionage Act. Fitz clearly said that Plame’s position was classified, he implied strongly that it related to national security, and as Josh Marshall pointed out in a recent post, the indictment itself states that both Cheney and Libby knew the precise division of the CIA where she worked, which by definition made her covert. So right there – as soon as he tells that to Miller – you have a prima facie violation of the Espionage Act.

Fitz also said, “I don’t buy that theory [that one should never use the Espionage statute], but I do know you should be very careful in applying that law because there are a lot of interests that could be implicated in making sure that you picked the right case to charge that statute … You want to know what their motive is, you want to know their state of knowledge, you want to know their intent, you want to know the facts.” He went on to lament the fact that Libby had lied, thus throwing the proverbial sand in his eyes.

What’s all this mean? Well, seems like Fitz has a pretty strong case for the Espionage Act, and if Plame met the objective standards in the Intelligence Act, for that one too. And it seems like the fact that Libby lied repeatedly is very strong evidence of a culpable state of mind, belying any claim that he didn’t “know” the info was classified or that divulging it was wrong. Add that to the very specific allegation in the indictment that he knew exactly where she worked, and there it is.

So why not charge it? Because Fitz has Libby nailed on the 5 counts from today’s indictment. Just nailed. So he’s bringing Libby in on those charges, they’re going to talk some turkey, and Fitz is going to see if Libby will talk, maybe about VP, maybe about Official A (who’s clearly Rove), or maybe about the VP’s moles at State and in the CIA. Offer some carrots – maybe no jail – but if Libby refuses, then Fitz brings down the espionage or intelligence act charges. Libby has nowhere to go, and Fitz knows it. In my view, he’s going to try to exploit that opening before wrapping this thing up.

That’s entirely my view as well, after mulling this over some more for a few hours. From the evidence we now have, it seems crystal clear to me that Libby knew he was out of line when he leaked the Plame name, and perjured himself to protect himself and the real source of the leak, Cheney. He gambled that the reporters wouldn’t squeal; and that he could cleverly spin his phone conversations so that the information seemed to come from reporters, not him. The question now is whether he will now turn against his colleagues and master to save his own skin. This story is just beginning. Ultimately, it’s about Cheney.

Josh Marshall finds something quite revealing in the indictment.

“One comment on the Libby indictment and your comments where you say ‘Fitzgerald did not believe he had enough evidence to prove that Libby knowingly outed a covert agent’s identity.’ I think you are correct, but I think that speaks to the heart of the cover up.

According to the indictment itself, Libby repeatedly told FBI investigators and the Grand Jury that he passed on the information that Wilson’s wife worked for the CIA, but, every time he did so, he made sure to note that this was just what he had heard from other reporters, and did not know if it was true. According to the indictment, this was a lie, because he had learned this information on numerous prior occasions, once from Cheney himself.

The key part of the indictment is on page 21, with this question:

Q And let me ask you this directly. Did the fact that you knew that the law could turn…on where you learned the information from, affect your account to the FBI…?

A: No, it’s a fact, that’s what I told the reporters.

Libby was clearly lying because he thought if he told them that he learned it from Cheney and disclosed it to reporters, he might have been convicted for the underlying crime. And he might have been.

As Fitzgerald said, the reason that obstruction and perjury is so serious is because it prevents you from having the information necessary to charge for the underlying crime. So, although I agree with you that there is not enough evidence to prove the underlying crime, maybe that is only because Libby is covering it up.”

I echo these sentiments from a reader:

Fitzerald was indeed very impressive. In my mind, the most impressive part of the press conference was his willingness to repeat, over and over, that Libby is innocent until proven guilty. This is a man who has spent two years away from his home, working tirelessly, to investigate what may or may not have been a crime. Rather than come out with both guns blaring, his chest puffed, disparaging one of the targets of this investigation, he reminds us all that there are processes to be followed and guarantees made to us by the Constitution that aren’t redifined by politics. This tells me that this man isn’t driven in the least by his ego, but that his true dedication is to the law. He is an absolute breath of fresh air at a time when it’s desperately needed.

Bush’s extremely brief non-response to the news was politically smart but a place-holder. Soon, I think, both he and Cheney will have to answer some very basic questions aout what they knew about all this and when.

WHY DID LIBBY LIE? I ask the question. You offer answers:

You are assuming that conspiracy is the cause, and not incompetence. It might be that when Libby testified he did not know a) that outing Plame might not have been a crime since she might not have been covert anymore, or her cover had been blown and b) assumed that reporters would not testify if asked – and thus no one could refute his account. It’s also possible that he told reporters about her because he did not realize that she was covert in the first place, and then panicked when he found out that she was, and that explains it.

Libby’s indictment as a consequence of his trust that reporters would never answer subpoenas? Oh, the ironies. But why, then, did he encourage Miller to testify? And why did Libby also lie to the FBI? As for “Official A”, Fitzgerald has a record of keeping identities secret until he has shaken enough witnesses to name them. Libby’s indictment may be a way for Fitzgerald to leverage harder facts about who else he believes was involved. Fitzgerald clearly thinks there were other leakers, and perhaps other liars. We don’t know if we will ever find out who those people are, but their existence seems to me a premise of Fitzgerald’s argument. Will this therefore go further? Is this indictment the very beginning? Another emailer suggests:

I don’t think this whole mess will go beyond Libby. If he can hold out and delay until after the midterm elections, he can be pardoned without Bush paying a price. I fully expect pardons in 13 months or the day before Libby has to do any jail time. Libby has no incentive to cooperate with Fitzgerald. He may be many things but he is not stupid. Protecting Cheney with the assurance of a pardon would be logical in his situation.

There are two tracks here: legal and political. Leave the legal side to Fitzgerald and the Libby trial. But the press now has a lot of questions to ask. I suspect more answers are in the pipeline. This story has legs.

What seems clear is that Fitzgerald did not believe he had enough evidence to prove that Libby knowingly outed a covert agent’s identity. Once again: It’s the cover-up, not the crime. They never learn. But of course, unraveling cover-ups can reveal crimes that might otherwise have remained unknown. And this particular cover-up begs many other, major questions. Why did Libby put himself in so much unnecessary jeopardy? If Libby had nothing to hide, why lie in the first place? What did Cheney know? Who is “Official A”? These questions may be addressed in the remaining work that Fitzgerald says he has to do – or be ferreted out by the press. Some might think that it’s good for Bush to avoid a Rove indictment now. I’m not so sure. Having this drag on – having Libby in a position to name others in a trial or plea agreement, having Rove still under a legal threat – is a terrible burden for the White House to bear indefinitely. I’d say this looks like the very beginning of something, rather than the end. And that, in itself, is crippling.