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.

Sunday, October 23, 2005

Why I wrote that incriminating letter to Judy, by Lewis Libby

Readers of today’s New York Times article and Washington Post article featuring I. Lewis “Scooter” Libby were told what a brilliant, cunning, careful master strategist, philosopher, thinker, intellectual and patriot Libby is, whose dedication to protecting America’s national security is matched only by his four-dimensional analytical mind, his photographic memory, and his contemplative powers.

Revoltingly mindless propaganda or not, it does seem clear that Libby is neither stupid nor intentionally self-destructive. For this reason, there had to be some line of rationale dancing around in Libby’s head which led him to include several paragraphs of transparent testimony-coaching in his letter to Miller even after he was expressly warned not to do exactly that by the Prosecutor in whose hands Libby’s fate rests.

So why did he do it? What led this masterful, prescient, strategic genius to write a letter which, quite predictably, became public and could, by itself, send him to prison for a nice, long time?

Miller’s lawyer, Bob Bennett, called Libby’s letter both "foolish" and “stupid." But is that really all there is to it? This scheming, supremely cautious genius just suddenly woke up one day and engaged in reckless, self-destructive behavior without any rationale? He just did something "foolish" and "stupid," in a matter this important?

Unlikely. Highly unlikely. Instead, there are several possible explanations -- even justifications -- for Libby’s fateful decision, explanations which render his decision to write this letter far from "stupid," notwithstanding how poorly the decision may have turned out for him:

(1) Sheer Desperation - Libby may have concluded that as risky as it would be to defy Fitzgerald’s warning and send this testimony-coaching letter to Miller, it was even riskier not to signal to Miller what she should say. And it is quite possible that Libby may have been right in this risk-benefit assessment.

If it is the case that Libby told the Grand Jury that he never disclosed Valerie Plame’s CIA employment to any reporter, and if it is the case that he told the Grand Jury only about his July meetings with Miller but omitted the June 23 meeting, then Libby would be understandably petrified once Miller decided to testify that she would contradict those claims. If Libby falsely denied to the Grand Jury that he disclosed Plame’s CIA employment and omitted his June 23 meeting with Miller, he did so because he expected that Miller would never testify.

But once 85 days in prison wore down her resolve (as it was intended to do), and it became clear that she would no longer melt away in jail in order to protect Libby, he had to panic. The thought of Judith Miller sitting in front of the Grand Jury and recounting how Libby told her in June that Plame worked for the CIA - after Libby expressly and repeatedly denied under oath not just the conversation but the existence of the June meeting itself -- would have sent any rational person into panic mode. That testimony, by itself, could easily result not just in his indictment, but in his conviction.

In that situation, it is not hard to imagine that Libby thought his future depended upon Miller’s keeping her mouth shut about the June meeting. He would have concluded that every other goal (including the “Rule #1” goal of not angering Patrick Fitzgerald) was subordinate to ensuring that Miller not “remember” the June meeting.

A rational person takes huge risks when the situation is desperate. You don’t jump out of your third-story window because you’re in a rush to make an appointment, but -- as risky as it is -- that is exactly what you do if your house is on fire and it’s your only chance for escaping.

When Miller finally caved and agreed to testify, Libby’s house began to burn. If she “remembered” that he told her about Plame’s CIA employment at the June meeting, he was finished. And so he opted for the enormously risky path of doing everything possible to prod her not to remember that meeting.

As we know now, Libby’s desperate bid to mold Miller’s testimony, at least in this regard, failed. By the time she was sprung from her cell, Miller’s first goal was to avoid a return to prison, and so she spilled her guts about the June meeting and about Libby’s disclosure of Plame’s CIA employment, directly contradicting the suggestions she believed Libby was making in his “aspens” letter.

So the gamble worked out horribly for Libby on all fronts. Not only did Miller go in and contradict his testimony on critical points, but the testimony-coaching letter became public (and, worse, known to Fitzgerald), thereby exacerbating his problems greatly.

But the fact that the scheme failed does not mean that the choice to pursue it was irrational. Libby was screwed in the absence of a letter to Miller, because Miller certainly would have testified about the June meeting (or, at the very least, Libby's disclosures about Plame's CIA employment) had she not been coached to avoid testifying about it. Thus, sending the letter in the hopes of avoiding that testimony, while risky, may have been advisable (legalities aside) under the circumstances.

(2) Tricked again by Fitzgerald - One of the odd features of the Plame investigation is the almost universal praise, even reverence, for all aspects of the entity known as “Patrick Fitzgerald.” Friend and foe alike obsequiously praise “Fitz’s” intellect, shrewdness, integrity, and tenacity. In the blogosphere, he has reached demigod status, the “Kaiser Souzy” of the prosecutorial world: silent and invisible, yet feared and all-powerful. Every development, no matter how small or coincidental, is interpreted as the ingenious by-product of Fitzgerald’s omnipotence and masterful planning.

Much of this is overblown, and is plainly motivated by an aching desire on the Left to believe that the Great Savior has finally arrived, in the person of a U.S. Attorney from Chicago, to slay the evil-doers in the Bush Administration and rescue the captive nation from its 5-year nightmare. Nonetheless, it is difficult to avoid the conclusion that Fitzgerald has impressively remained many steps ahead of those in the crosshairs of his investigation and their lawyers.

Did Fitzgerald lure Libby into his blatant testimony-coaching by: (a) encouraging Libby to communicate with Miller while (b) purposely leading Libby to believe that Fitzgerald would never know what Libby said?

In his September 12 letter to Libby’s counsel encouraging Libby to communicate with Miller, this is what Fitzgerald said:

“In closing, let me be clear that I cannot, and am not, seeking to compel a commun- ication either from Ms. Miller or Mr. Libby or their counsel, nor do I wish to be copied on such correspondence or to participate in any such conversation. I am simply making plain that any communication reaffirming Mr. Libby’s waiver would not be viewed as obstructive conduct. Rather, it would be viewed as cooperation with the investigation.”

So here, Fitzgerald is telling Libby: “Go write to your friend Judy in prison. I won’t mind. I’d even appreciate it if you do it. And oh, don’t worry - speak freely to her and don’t worry about anything. I don’t want to know what you say and I won’t know.”

Or, to put it another way: “Go ahead and write to Judy, please. But don’t tell her what to say in her testimony. But don’t worry about the warning I just gave you, because I won't ever know what you write.”

What an odd thing for a prosecutor to say. What prosecutor purposely avoids being privy to information related to his investigation -- even going so far as to request that he not be told what two crucial witnesses are saying to each other when talking about the investigation? It’s one thing for Fitzgerald not to demand that he be privy to the communications, but to purposely request that he not be made aware of the Miller-Libby communications (which he is simultaneously encouraging) is very unusual indeed.

At the very least, Fitzgerald’s “desire” not to be informed of Libby’s communications with Miller must have put the notion into Libby’s head that he was free to say anything he wanted to Miller without anyone ever knowing. That belief almost certainly influenced his risk-benefit analysis (see (1)) in favor of trying to coach Miller’s testimony even once Fitzgerald warned him not to.

After all, if Fitzgerald himself asked not to see Libby’s letter to Miller, what risk was there in Libby’s signaling to Miller what her testimony should be in the letter? If a witness tampering letter is sent and nobody hears it, has the witness been tampered with? Based on Fitzgerald’s assurances that he did not want to see the letter, Libby probably concluded that he was free to do what he wanted in his letter to Miller.

As we now know, and as was painfully predictable, not only Fitzgerald, but the whole world, got to read Libby’s letter soon after he sent it. And Fitzgerald -- after assuring Libby’s counsel that he had no desire to see the letter -- has obviously taken quite a keen interest in it now. He clearly spent some quality time with Miller in the Grand Jury room asking her about the letter and whether she believed it was an attempt to shape her testimony.

That looks like a pretty clear and clever trap, doesn’t it? Given Libby’s desperate need to ensure that Miller forgot about the June meeting, and given Fitzgerald’s affirmatively purported desire not to see Libby's letter to Miller, is it really that hard to understand why Libby decided to try to use the letter (which Fitzgerald encouraged him to send) as an opportunity to save himself by trying to steer Miller’s testimony?

And as for Fitzgerald’s quite unusual and oh-so-earnest assurance that he had no desire to see Libby’s letter to Miller -- nope, no desire at all -- was that: (a) simply an unintended opening for Libby to commit one more crime in his letter to Miller, or (b) did Fitzgerald know that it was likely that Libby would be a naughty boy in his letter to Miller if Fitzgerald assured him that he would not see the letter (even while knowing that someone would inevitably leak it) and, for that reason, gave this assurance to Libby’s counsel?

Either way, there seems to be little doubt that Fitzgerald’s express desire not to see Libby’s letter had the effect (intended or not) of leading Libby to conclude that it worth it to take the risk of sending testimonial signals to Miller in his letter to her.

(3) Libby is just misunderstood - It is possible -- not likely, but possible -- that Libby’s letter has simply been misunderstood and really was not an attempt to coach Miller’s testimony at all. Instead, this line of thinking would go, he simply had the misfortune of expressing himself ambiguously at exactly the wrong time with regard to exactly the wrong topic, and as a consequence, caused everyone (read: Fitzgerald) to think that he meant to say something that he really did not mean to say.

The most commonly cited passage in Libby’s letter in support of the claim that he tried to coach Miller’s testimony is this one:

“The public report of every other reporter’s testimony makes clear that they did not discuss Ms. Plame’s name or identity with me.”

Is it really that clear that this was an attempt to coach Miller’s testimony? After all, Libby is referring to public reports about what these reporters testified to. As a result, it’s certain that Miller, in preparing for her Grand Jury testimony, would have already been aware of these reports and did not need Libby to tell her about them (particularly since she had ample free time to peruse the news, having spent 85 days in prison).

Why, then, would Libby bother to include this passage at all? It could be that each time he talks about the Plame matter, he stresses his innocence. Criminal defendants and Grand Jury targets do that naturally. Being a defendant or a Grand Jury target is no fun, and it is difficult for such individuals to avoid screaming “I DID NOTHING WRONG!” whenever they talk about the matter. Seen in that light, the inclusion of this passage by Libby could be seen as nothing more than a protestation of his innocence: "It is clear I am innocent because everyone who testified said I did not disclose Plame’s identity!"

It may even be the case (contrary to the argument in point (2)) that Libby thought nobody would ever see his letter) that Libby, a veteran of Washington, knew that his letter, at some point, would find its way into the public domain. If a smart person in Washington (or anywhere) really wants to say something and keep it a secret, they don’t put it in writing. That’s just obvious. And if they put it in writing, they have to know that, even if it seems unlikely, there is a good chance that it will be publicly disclosed.

With the knowledge that his letter to Miller may very well be read by the world at some point, isn’t it natural that Libby would want to defend himself in this letter by summarizing the evidence that he believes exonerates him? Hence: “The public report of every other reporter’s testimony makes clear that they did not discuss Ms. Plame’s name or identity with me.”

Libby, after all, is a litigator, and litigators argue their case and marshal evidence supporting that case as second nature. Isn’t Libby just defending himself here by arguing on his own behalf that he did nothing wrong? And isn’t this desire to do so in a letter that would likely be public all the more understandable given the way in which he has already been essentially convicted of Plamegate crimes in the media?

It could very well be that what Libby did in his letter to Miller was “foolish” and “stupid,” but not criminal. A decent argument can be made that Libby did not tell Miller anything she did not already know, and that his summary of the known evidence in his favor was simply a litigator’s advocacy of his own innocence, rather than a Grand Jury target's attempt to dissuade a witness from telling the truth.

At the end of the day, though, Rule # 1 ought to have governed Libby’s conduct at all times. When you are the center of a serious federal Grand Jury investigation, and the federal Prosecutor overseeing that investigation expressly tells you not to coach a witness' testimony, it is best to be very certain that anything you say in a letter you subsequent write to that witness be free of all ambiguities and even remotely potential witness coaching. Whether through venality or just garden-variety stupidity, this Libby clearly failed to do.

Libby’s letter to Miller may be the final nail in Libby’s coffin. But that does not mean that Libby’s decision to send the letter was stupid, foolish or without rationale. More likely than not, the letter was a calculated gamble by Libby, a last-ditch effort to save his skin. The fact that it failed does not mean that it wasn’t worth trying.

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