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.
Is this surprising? I'm sure this will be all over Fox News within an hour. Did Ledeen even read the indictment before he said that?
ReplyDeleteI was watching Fox today, though, and have to admit that coverage was pretty straight. They all agreed that what it is alleged Libby did is serious stuff. I was impressed, surprised.
I always laugh when people say they are "surprised" when FoxNews plays a story straight.
ReplyDeleteWhen people watch for themselves instead of inhaling Michael Moore's inanities whole, they figure it out.
Came over here from the Corner. I'm your classic rightwing chickenhawk. But, I agree with your analysis; Ledeen is wrong on this point. It was not a crime to lie to reporters, it was a crime to lie to the investigators. Had he told them "I learned it from this or that government official, but I told the reporters otherwise," these particular indictments would not have come down. (Others might have, but that's a different matter.)
ReplyDeleteIf we taking the indictment literally, that Libby testified he was "surprised" or "taken aback" to hear something from Russert doesn't necessarily imply a factual denial to the grand jury that he hadn't heard it someplace else before, like from VP Cheney, does it?
ReplyDeleteHence, without more, it does come down to Libby's credibility against Russert's characterization of their conversation, not the fact of when, in relation to that discussion, Libby first had been made "well aware Wilson's wife worked at the CIA"?
Re: the last comment by Anonymous - if you look at Paragraph 32(a)(ii) of the Indictment, it makes clear that Libby told the GJ that during his conversation with Russert, Libby was "surprised to hear that Wilson's wife worked for the CIA."
ReplyDeleteAlthough I agree that the Indictment could have been a little clearer on this point, the ONLY MEANING of Libby's testimony was that the conversation with Russert was the FIRST TIME Libby had heard that Plame worked for the CIA. If he had been truthful and told the GJ of the (at least) 4 occasions previously when Libby learned this, there would be no way he would be "surprised" to hear of it during his conversation with Russert.
This has nothing to do with what Russert said about the conversation or what Russert recalls. What Russert recalls is irrelevant (to this part of the Indictment anyway).
What mcg said is exactly right - Libby got indicted because he lied to the GJ when he said he learned of Plame's CIA employment for the first time from Russert. Tons of facts - none being reporters' recollection - show that Libby learned of it repeatedly and well before that.
Could 32.a.ii be interpreted as (he was) 'surprised to hear it from Russert'?
ReplyDeleteLibby did not tell the Grand Jury he heard of Plame from Russert. That is a totally false reading of the indictment. Libby told the GJ his recollection of his conversations with Russert, Cooper and Miller. They had different recollections.
ReplyDeleteThe fact that Libby knew Plame's identity but perhaps lied to the reporters or feigned surprise to them, is itself not a crime. I think!
The specified charges all relate to those conversations. The facts that show he knew Plame's ID before those dates, only prove he lied to the reporters about that.
Glen, You still haven't shown me where Libby made an unambiguous factual assertion to investigators that he first learned of Plame's CIA status from Russert.
ReplyDeleteTestifying he was "surprised" or "taken aback" to hear classified info from a reporter is not the same as making the provably false factual assertion that it was the first time he ever heard it.
It's not the "ONLY MEANING."
Look at Libby's underlined testimony on page 18 of the indictment. At worst, Libby says "I didn't want him [Russert] to take anything I was saying as in any way confirming what he said, because at that point in time I didn't recall that I had ever known."
Rather than perjury, this testimony could be interpreted as how Libby was being coy with Russert, not the GJ, so as not to confirm the substance of the reporter's question.
Remember, Libby had no defense lawyer in the GJ, but he will at trial. Sure, Libby could be lying about what Russert asked him, but that's his word against Russert's, not the provable fact of when he first knew of Plame.
If the prosecuter wants to hang a charge on Libby making a false assertion on the fact of when he first knew of Plame's CIA role, he's going to need more than what he's shown so far. Why didn't they just ask Libby the question directly when they had the chance? Maybe both sides were being too cute? But it sounds like a blown prosecution to me!
(original annonymous)
Could 32.a.ii be interpreted as (he was) 'surprised to hear it from Russert'?
ReplyDeleteYes, it could be - and that's why I was saying I thought the Indictment could have been more artfully drafted in this regard.
But the Indictment plainly means to convey that Libby told the GJ that his July 10 conversation with Russert was the first time he heard about Plame's employment with the CIA.
In that regard, Paragraph 2 of COUNT FIVE (Perjury) makes it even clearer. It quotes Libby as saying this 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, he didn't know for a fact that Plame worked for the CIA because he only heard this as a rumor from reporters.
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.
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.
Glen, sorry, I think our comments crossed at the same time.
ReplyDeleteLook at the Libby quote you use: "I was very clear to say [to reporters] [that] 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."
Again, the "in my mind" while talking to reporters statement can be interpreted also to mean that while Libby was talking to reporters he adopted an artificial mindset in the effort to be careful NOT to disclose the classified information about Plame he already knew.
Again, I don't see a testimonial smoking gun on the charge of lying about "when he knew it."
I disagree with your analysis. What you offer as a defense of the indictment only applies to one of the five counts. You are failing to address the problems with the other four. The other four would seemingly have to rely on a reporter's word vs. Libby's - not a strong case.
ReplyDeleteAnyone who thinks an unbiased jury is likely to convict on the facts outlined in the indictment has never prosecuted (or defended) a perjury case. A competent defense attorney will shred Fitzgerald's case. Let's assume away any ambiguities in Libby's testimony. The most Fitzgerald can prove is that Libby, some considerable time after the fact, didn't correctly recall the order of events that were not particularly significant to him at the time. Even now there is no great significance in the order of those events. There is far too much room for testimonial error to make the indictment convincing. The only reason Fitzgerald thought he could get away with bringing a charge like this is that he assumes a D.C. jury will be inclined to convict a Republican. Unfortunately for our system of justice this cynical calculation is probably correct.
ReplyDeleteI have no problem with anyone being indicted for lying to a Grand Jury. But I have to agree with a previous Anoyn, this is about the ordering of events and a person's recollection of conversations over a period of a few days.
ReplyDeleteAdd in the context of this happening during a time of war and the multitude of events that must have been going on behind the scenes - it seems easy to suggest he may have gotten recollections mixed up... especially if some of his own papers that he handed over support the indictment - suggesting he wasn't hiding anything.
Lastly, if he was intentionally lying to the grand jury - what, exactly was he trying to cover up? At the very least he would have to know that he was blowing someone's cover. Yet no law was broken - no cover was intentionally blown - as Fitz has now confirmed.
To what purpose was he lying? Without answering that question it seems to this non-lawyer the perjury charge will be harder to prove than you suggest.
It seems to me that most everyone is missing the key element in this case, including Fitzgerald, with his grandstanding about national security at the press conference. That point is, was there a crime to be investigated in the first place? Was Valerie Wilson a covert operative? I do not believe that her status has been determined. Fitzgerald will not answer that question, because he knows that by all the evidence we know and by the definition of covert operative, according to the 1982 covert indentities protection act, Valerie Plame was not covert. So there was no intent to cause harm by outing her identity. Therefore there was no need to intentionally lie to and mislead the grand jury, because there was not a crime committed. I think the question we need to be asking Fitzgerald is, was there actually a crime committed in the first place, and if not, why did he waste 22 months worth of taxpayer dollars to pursue baseless charges.
ReplyDeleteI don't understand your claim that "[s]ince a critical issue in Fitzgerald's investigation was how Libby learned of Plame's CIA employment. . ." It clearly didn't matter if Libby learned from official sources and improperly disclosed that classified information, because Fitzgerald claims Libby did learn of Plame's employment from official sources, and did disclose that information, but did not indict on those grounds.
ReplyDeleteConversely, if Libby learned from unofficial sources (Novak through Rove or Fleischer), he is not committing any crime either.
I agree with Ed Holston, who said Fitzgerald should have directly asked Libby how he learned of Plame's employment.
Instead, Fitzgerald seems to have undertaken a congressional investigation into bad executive branch employees, rather than a criminal investigation.
I don’t know whether Libby was intentionally false and misleading in his testimony, but it seems clear to me (based on the quotes in the indictment) that the counts against him do in fact depend on the discrepancies between Libby and the various reporters, told well after the fact, and not any discrepancies between Libby’s testimony and the well-established timeline of when Libby learned about Wilson’s wife.
ReplyDeleteAnyone who wants to argue about what Paragraph 32(a)(ii) means should instead be looking at later (page 18) in the indictment, at (a selection of) Libby’s actual “perjurious” testimony, not at Fitzgerald’s characterization of it. It’s rambling and unfocused, like most oral testimony, and the punctuation is also, of course, Fitzgerald’s. I present the key portion with some quotes and commas added and some doubly stated phrases removed.
Concerning Tim Russert (~July 10, 2003)
And then he said… “did you know that Ambassador Wilson's wife works at the CIA?” And I was a little taken aback by that... And I said, “no, I don't know that.” And I said, “no, I don't know that” intentionally because I didn't want him to take anything I was saying as in any way confirming what he said, 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. And so I said, “no, I don't know that,” because I want to be very careful not to confirm it for him, so that he didn't take my statement as confirmation for him.
To Fitzgerald, Libby is here claiming that Libby did not know about Wilson’s wife when Russert told him about it. But to me, Libby’s use of the word “intentionally” and Libby’s being “careful not to confirm it for him” show that Libby is talking about the role he was playing “at that point in time” and later (with Cooper) “in my mind.”
My interpretation requires Libby’s use of language to “frame” his lies to the press to be unclear. Specifically, I believe that when Libby says “at that point in time” or “in my mind” he is speaking of a role he was then playing with a reporter. Fitzgerald’s interpretation requires us to instead ignore that Libby added phrases about intent (underlined) which make no sense at all under Fitzgerald’s interpretation.
Libby had “to be very careful not to confirm it for [Russert]” precisely because Libby says he was lying to Russert then, which would not be true if Libby’s claim were that he actually didn’t know about Wilson’s wife, and was actually telling the truth to Russert. This is so clear it tempts me to consider conspiracy theories wherein Fitzgerald really wanted an indictment that would fall flat on its face, benefiting the Bush Administration. But it seems more likely that Fitzgerald was too rushed and overworked at the end to think logically.
Thanks for all of the substantive, challenging responses. For the sake of clarity, I responded to all of the pro-Libby (or anti-indictment) comments in a new post. Please respond there.
ReplyDelete