October 13, 2005
Is Libby Wearing the Bullseye?
New York Times report Judith Miller completed her second round of testimony before the grand jury investigating the leak of Valerie Plame's identity as a CIA operative, and now the focus has shifted to I. Lewis Libby, the Vice-President's chief of staff (see CNN.Com story here). Miller reportedly testified about a previously undisclosed meeting she had with Libby on June 23, 2003 [for those into high-level corruption trivia, on that date in 1972, Nixon and his chief of staff, Bob Haldeman, met to discuss covering-up the White House's involvement in the Watergate break-in]. Much has been made of the fact that Libby did not discuss this meeting during his interviews with FBI agents and testimony with the grand jury.
For those salivating about (or dreading) a possible indictment of Libby for perjury or false statement, the first question is whether he was ever asked about the meeting with Miller. The focus of the investigation seemingly has been on contacts between senior administration officials and reporters after Joseph Wilson's op-ed piece appeared on July 6, 2003, and not as much about what occurred before that date. The lesson from perjury cases like Bronston v. U.S. is that the question is just as important, and perhaps more so, than the answer. If no one asked Libby about the meeting, then his failure to volunteer the information may be disingenuous, but it would not necessarily be a lie, which is necessary for a perjury or false statement charge.
There has also been some discussion in the media (see National Journal story here) that Libby may have obstructed justice by telling Miller that his waiver of confidentiality was coerced, thereby ensuring that she would not testify before the grand jury. Can a factual statement ("the waiver was not voluntary") that will likely cause a reporter to refuse to testify before a grand jury constitute obstruction? That seems to be a bit of a stretch, in light of the Supreme Court's recent statement in the Arthur Andersen case about lawful conduct that can have the effect of thwarting an investigation. Chief Justice Rehnquist's opinion notes: "Such restraint is particularly appropriate here, where the act underlying the conviction--'persua[sion]'--is by itself innocuous. Indeed, 'persuad[ing]' a person 'with intent to ... cause' that person to 'withhold' testimony or documents from a Government proceeding or Government official is not inherently malign. Consider, for instance, a mother who suggests to her son that he invoke his right against compelled self-incrimination, see U.S. Const., Amdt. 5, or a wife who persuades her husband not to disclose marital confidences . . . ." 125 S.Ct. 2125, 2134-2135.
Libby's failure to disclose his meeting with Miller is certainly cause for further inquiry by special prosecutor Patrick Fitzgerald, and I would not be surprised if he were "invited" to return to testify before the grand jury, just as Presidential aide Karl Rove will be doing (for the fourth time). Whether the non-disclosure is enough for a criminal prosecution depends on what he was asked as much as what he said. (ph)
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