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.

Saturday, October 22, 2005

How to ensure you get indicted, by Lewis Libby

Does Lewis Libby want to be indicted? His now infamous and widely mocked "aspens" letter to an imprisoned Judith Miller renders that otherwise absurd question a reasonable one.

When you are at the center of a lengthy investigation conducted by a ravenous Grand Jury and an ambitious, aggressive federal Prosecutor, what is the one thing you want to be sure to do?

Co-op-er-ate -- or, more accurately and importantly, make sure the Federal Prosecutor believes you are cooperating.

Rove’s lawyer, Robert Luskin, understands this basic principle very clearly. Listen to him explain it to National Review’s Byron York:

During a conversation with Robert Luskin, Karl Rove's lawyer, last July, Luskin said, "Rule number one is cooperate with Fitzgerald, and there is no rule number two." It was a standard defense attorney line; the last thing one would want to do is to alienate Patrick Fitzgerald, the prosecutor who controls every aspect of the CIA leak investigation.

Got that? Let’s review Rule #1 one more time. As a target of this investigation, “the last thing one would want to do is to alienate Patrick Fitzgerald.”

With his “come-back-to-life-Judy” letter, Libby seems quite deliberately to have spit squarely in the face of that Rule -- and, as a consequence, squarely in the face of Fitzgerald.

Recall that Libby wrote his letter to Miller at Fitzgerald’s prodding. While imprisoned, Miller was using the excuse that she could not testify because Libby had failed to give her the waiver of confidentiality which she needed, while Libby insisted he had given it. Fitzgerald wanted Libby to give Miller whatever she needed so that she could no longer refuse to testify.

As a result, Fitzgerald wrote a September 12, 2005 letter to Libby’s counsel, Joseph Tate, pushing Libby to communicate with Miller in prison and encourage her to testify. In the letter, Fitzgerald expressly warned Libby, when doing so, not to suggest to Miller what her testimony should be. Here is Fitzgerald's polite but crystal clear warning:

Given the statement by counsel for Mr. Rove that he felt inhibited from communication between counsel, I wish to make certain that you understand that if Mr. Libby maintains that his waiver is valid and he wishes to communicate that fact either through you or directly to Ms. Miller or her counsel (without discussing the substance of what her testimony might be), I would not view such communication as obstruction.

Both Miller and, far more importantly, Fitzgerald, seem to believe that Libby, in his prison letter to Miller, did exactly what Fitzgerald warned him not to do -- i.e., he suggested to Miller what her testimony should be.

Listen to Miller recount a part of Fitzgerald's questioning in her My Four Hours Testifying in the Grand Jury Room” story in the Times:

[Fitzgerald] also asked whether I thought Mr. Libby had tried to shape my testimony through a letter he sent to me in jail last month. . . .

Mr. Fitzgerald asked me to read the final three paragraphs aloud to the grand jury. "The public report of every other reporter's testimony makes clear that they did not discuss Ms. Plame's name or identity with me," Mr. Libby wrote. The prosecutor asked my reaction to those words. I replied that this portion of the letter had surprised me because it might be perceived as an effort by Mr. Libby to suggest that I, too, would say we had not discussed Ms. Plame's identity. Yet my notes suggested that we had discussed her job.

The day on which Miller’s article appeared, her lawyer, Bob Bennett, went on television and made the same point even more strongly. He called Libby’s letter “stupid” because of how strongly someone -- such as, oh, say, Patrick Fitzgerald -- could view the letter as intended to coach Miller’s testimony.

Prosecutors are lawyers, and lawyers are human beings. Nobody likes being lied to or manipulated, and especially, nobody likes being flagrantly disrespected. Fitzgerald warned Libby not to suggest to Miller what her testimony should be, and Libby then went and did exactly that. Do you think that favorably inclined Fitzgerald towards him?

Worse (for Libby), when a prosecutor already thinks that someone may be dishonest or corrupt -- and surely, at the very least, Fitzgerald is entertaining that idea about Libby -- causing the prosecutor to conclude that you are trying to coerce and coach the testimony of other witnesses is pretty much the worst thing you can do (assuming you would like not to be indicted). After all, if you did nothing wrong, you would not need to coach the testimony of other witnesses, especially to give false testimony -- and you certainly would not risk doing so after the Prosecutor warned you not to.

If it was not already the case before this episode, it is hard now to see how the probability of a Libby indictment is anything less than 95%. If Fitzgerald was on the fence with regard to indicting Libby on any counts, Libby likely shoved Fitzgerald off that fence and onto the side of indictment with his little defiant, coaching note to Miller.

In the next post, I discuss the possible reasons -- other than feeding a penal death-wish -- as to why Libby may have included this testimonial coaching in his letter to Miller.


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