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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, October 28, 2005

Libby's Indictment does not depend upon the recollection of reporters

Foreshadowing what is sure to be a popular line of attack on Lewis Libby's indictment, right-wing bellweather Michael Ledeen, in National Review's Corner, announces that the Indictment "stinks," because, he claims, the Indictment rests on nothing more than mere discrepancies in recollections between Libby and the reporters with whom he spoke:

I finally concluded that (the Indictment) says that Libby lied to the grand jury (and elsewhere the FBI) when he testified that he told (Cooper, Miller or Russert) things that in fact he did not tell (Cooper, Miller or Russert).

If that is right, it means that this poor man may well have been indicted because his memory of those conversations differs from the journalists'. And Fitzgerald chose/wanted? to believe the journalists' memories. Pfui.

To this non-lawyer, that's not good enough to shake up the staff of the vice president of the United States. Isn't perjury a knowing lie?

Why should Fitzgerald assume, even if he thinks he KNOWS that the journalists' memories are all reliable, that Libby didn't misremember the conversations?

This entire claim is simply untrue. A central prong of the Indictment is that Libby lied to the Grand Jury and to the FBI not only about what he said to reporters, but also about when and how he first learned that Wilson's wife worked for the CIA.

According to the Indictment, Libby told the Grand Jury that he first heard of Plame's CIA employment during a July 10 telephone conversation with Tim Russert, and that he was "surprised" to learn of this during that conversation (see Paragraph 32(a)(ii)) (cited Indictment paragraphs are excerpted below).

That testimony is false, alleges the Indictment, because Libby had known about Plame CIA's employment well before he ever spoke with Russert. Indeed, the Indictment lists four (4) separate occasions prior to his conversation with Russert when Libby was informed that Plame worked for the CIA ((see Paragraph 33(a)(ii)), including his early June conversation with Vice President Cheney, his June 11 conversation with a "senior CIA officer," and his June 12 conversation with an Under Secretary of State.

In each of these conversations between Libby and senior government officials prior to his June 10 conversation with Russert, he was told that Plame worked for the CIA. Thus, the Indictment alleges, Libby lied to the Grand Jury and the FBI when he claimed that he heard about Plame's CIA employment for the first time when he heard it from Russert.

Moreover, the Indictment identifies conversations which Libby had prior to his June 10 conversation with Russert in which Libby told others that Wilson's wife worked for the CIA, including his July 7 conversation with Ari Fleisher. Clearly, as Patrick Fitzgerald pointed out in his Press Conference, Libby could not have learned of Plame's CIA employment during his July 10 conversation with Tim Russert if he was telling Ari Fleisher about it 4 days earlier.

These allegations have nothing whatsoever to do with Libby's recollections of his conversations with reporters, nor does this allegation that he lied under oath depend in any way upon the reporters' recollections about their conversations with Libby.

Rather, the Indictment relies upon what is, presumably, the testimony of other Bush officials which prove that Libby knew of Plame's CIA employment long before he spoke with Tim Russert on July 10. And we know now that Libby's own notes reveal that he learned of Plame's CIA employment in early June when Cheney told him - more than a month before the July 10 date he gave to the Grand Jury.

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UPDATE: Several comments have advanced the argument that Paragraphs 32 and 33 of the Indictment are vague and could be read to simply mean that Libby told the Grand Jury he was "surprised" to hear from Russert that Plame worked for the CIA (because Russert shouldn't know about it) -- rather than that he was "surprised" to hear the fact itself that she worked for the CIA.

While the paragraph is not perfectly drafted, this is not a credible argument, because Paragraph 32(a)(ii) makes clear that Libby told the GJ that he "was surprised to hear that Wilson's wife worked for the CIA" - not that he was surprised to hear it from Russert. Clearly, Libby was telling the GJ that, before his conversation with Russert, he didn't know about Plame's employment.

But regardless of that ambiguity, Paragraph 2 of COUNT FIVE (Perjury) makes it even clearer. It quotes Libby as saying this to the GJ about his July 12 conversation with Time's Matt Cooper:

"I was very clear to say reporters are telling us [about Plame's CIA employment] because in my mind I still didn't know it as a fact. I thought it was - all I had was this information that was coming in from the reporters."

That's about as clear as it gets - Libby told the GJ that as of July 12 when he talked to Matt Cooper, he didn't know for a fact that Plame worked for the CIA because he only heard this as a rumor from reporters. That testimony is false and does not require any reliance on reporters to prove it to be false.

If you show that testimony to the jury at Libby's trial - and then follow it up with all the government officials (including Cheney, the senior CIA official, etc.) who will testify that they TOLD Libby before July 12 FOR A FACT that she worked at the CIA - he will be convicted.

When you add to that the testimony of other officials (such as Ari Fleisher) to whom Libby disclosed this information about Plame before talking to reporters, the trial would be a bloodbath. You do not even need any testimony at all from reporters to prove this perjury.

That's why this Indictment is so powerful - assuming its allegations are accurate, Libby clearly lied about when and how he learned about Plame/CIA in a way that is demonstrable and proven by multiple credible sources.

Thus, this excuse from Libby apologists that the Indictment is simply the by-product of some he-said/she-said dispute with reporters regarding who said what during Libby's discussions with reporters is absurd and false.

The Indictment is based upon what appears to be fact after fact demonstrating that Libby knew of Plame's identity long before the event he cited to the Grand Jury as the time he first learned of it. The Indictment also rests on numerous facts showing that Libby learned of this from many officials in the Bush Administration, and not from Tim Russert.

Since a critical issue in Fitzgerald's investigation was how Libby learned of Plame's CIA employment, it is hardly a surprise that he decided to indict Libby for lying so repeatedly and transparently about this central issue.

Say what you want about the Indictment, but one thing that cannot be said truthfully about it is that it depends upon the recollections of reporters and differences between their recollections and Libby's. On the face of the Indictment, it rests on far more substantial ground than that.

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Relevant indictment paragraphs:

32. "Defendant LIBBY made the following materially false and intentionally misleading statements and representations, in substance, under oath . . .

(a)(ii) - "At the time of this conversation [with Russert], LIBBY was surprised to hear that Wilson's wife worked for the CIA"

33. "It was further part of the corrupt endeavor that at the time defendant LIBBY made each of the above-described materially false and intentionally misleading statements and representations to the grand jury, LIBBY was aware that they were false in that: . . .

(a)(ii) At the time of this conversation, LIBBY was well aware that Wilson's wife worked at the CIA; in fact, LIBBY had participated in multiple prior conversations concerning this topic, including on the following occasions:

The Indictment then lists nine (9) separate occasions prior to the Libby conversation with Russert when Libby was either told that Plame worked for the CIA or when he told others that she did -- thus proving that he lied to the Grand Jury when he said he first learned of it during his conversation with Russert.

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