Special Report

The Verdict Is In

But critical evidence in the Scooter Libby case was kept from the jury.

By 3.6.07

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So, the verdict is in on I. Lewis Scooter Libby: Guilty on one count of obstruction of justice, two counts of perjury before a grand jury, and one count of making false statements to FBI agents. What does it all mean?

Let's back up: In July 2003, Joseph Wilson wrote an op-ed for the New York Times in which he accused the Bush administration of manipulating pre-war intelligence on Iraqi weapons of mass destruction, under the title "What I Didn't Find in Africa." He claimed that he had reported to the Administration that he'd debunked claims about Iraq shopping for uranium when he went to Niger to investigate. His account wasn't accurate, the administration was furious, and reporters and administration officials began gossiping about why Wilson, a retired ambassador, was put on such a mission in the first place. The answer was that his wife Valerie Plame worked for the CIA and recommended him, and Bob Novak reported as much in his column later that month.

Special Prosecutor Patrick Fitzgerald was charged with finding out if a crime was committed when Plame's name was leaked. We now know that then-Deputy Secretary of State Richard Armitage leaked the name to Novak; presumably, since Armitage hasn't been charged with anything, Fitzgerald concluded that the leak wasn't a crime. (The particulars of the Intelligence Identities Protection Act make it difficult to violate by accident.) But in the course of the investigation, Fitzgerald zeroed in on what he believed were lies told by Libby, the Vice President's chief of staff.

Libby was indicted on five charges. One count of perjury before the grand jury and one count of making false statements to investigators related to conflicts between Libby's and Time reporter Matthew Cooper's accounts of a conversation they had; another two counts, again of perjury and false statements, related to conflicts between Libby's and Meet the Press host Tim Russert's accounts a conversation they had. The fifth count was the obstruction charge, which incorporated the allegations in the other four charges along with another allegation relating to a conversation with New York Times reporter Judy Miller and -- the most damaging piece -- documentation that, despite Libby's testimony that he was surprised to have heard from Russert that Wilson's wife worked at the CIA, he'd actually discussed that topic in numerous conversations before he spoke to Russert about it. (Here's a more-detailed account of the charges.)

Libby was convicted on the obstruction count and on both the Russert counts. He was convicted on only one of the Cooper counts -- perjury, but not false statements. It may seem odd that, since what Libby said to investigators and to the grand jury was the same, he'd be convicted of lying in one instance but not the other, but prosecutors say that juries often give defendants more leeway on false statements charges because conversations with the FBI are less thoroughly documented than testimony in court; in the former case, there's just the agents' notes, while in the latter there's often video and always a stenographer.

Given that Fitzgerald found no evidence that the leak of Plame's name was a crime, there wasn't any good reason for Libby to lie, but it's possible that Libby thought he was protecting someone who had leaked illegally. Lefty dreams notwithstanding, since there doesn't actually seem to have been anyone to protect, there's little chance that Libby will be able to stay out of jail by helping investigators bag a bigger administration fish (the Vice President has always been the dream prize among Administration enemies). Fitzgerald's underlined that yesterday when he said, "I do not expect to file any further charges." And because Libby seems to have gotten convicted for falsehoods -- deliberate or not -- made during an investigation that found no underlying crime, he has a good case for a Presidential pardon.

Of course, he also has a chance to appeal, and there are issues with the case that an appeals court might find interesting. Based on jurors' accounts, their conviction turned on their trusting Tim Russert, and the judge prevented the defense from making a potentially crucial attack on Russert's credibility. Russert testified that he didn't know a witness before a grand jury couldn't be accompanied by a lawyer; the defense produced three clips of Russert saying exactly that -- a grand jury witness can't have a lawyer with him -- on television before his testimony. They weren't allowed to show the jury that evidence. What if they had been? If Russert could be confused about that, the jurors might have thought, maybe he's confused about other things -- and maybe Libby is innocent.

I offer a steak dinner at The Palm to whoever asks Russert about that on Sunday's Meet the Press.

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About the Author

John Tabin is a frequent contributor to The American Spectator online.