February 10, 2007
Could the Jury Find Libby Not Guilty?
The government rested its case against I. Lewis Libby, winding up the testimony with Meet the Press host Tim Russert, who Libby identified in the grand jury as the source of his knowledge about Valerie Plame's status as a CIA operative -- or at least the second source after Vice-President Cheney. Russert flatly contradicted Libby's statements to the FBI and grand jury, stating that he had never heard of Plame until he read Robert Novak's column a few days later, the item that touched off the long-running investigation of the leak. Special Counsel Patrick Fitzgerald offered six witnesses from the Bush Administration who testified about conversations with Libby in which they informed him about Plame, and three journalists testified they received information from Libby about Plame. Is that too much evidence for Libby to overcome with his "honest but overworked public servant" defense that claims he simply forgot about these conversations?
While the defense may be viewed as a bit far-fetched, the government's case is not as airtight as it seems. The problem Fitzgerald faces -- not one of his own making -- is that just about everyone seems to be a liar. In an approach that looks to be all-too-typical of Washington today, the various witnesses appear to have viewed their initial interviews with the FBI (or grand jury) as an opportunity to spin the investigation in a way that made themselves and others look good, apparently on the belief that if the statements were later contradicted they would just move on to a different story. Pretty much standard procedure in a campaign, so why not try it with the investigators?
The first two government witnesses were former State Department official Marc Grossman, a close ally of Richard Armitrage, another leaker about Plame who has not been prosecuted, and former CIA heavyweight Robert Grenier. Each man recounted telling Libby about Plame, yet when each initially spoke with the FBI they made no mention of that fact. Now, it could be that they simply didn't recall who they spoke with about what, and only focused on Libby later, but isn't it odd that each neglected to mention Libby and then later had almost complete recall of multiple conversations? Former White House spokesman Ari Fleisher took the stand with a "pig in a poke" deal from Fitzgerald (see earlier post here) in which he refused to make any statement before receiving immunity -- not the type of witness who makes you comfortable with his recall when he demanded the prosecutor trust him blindly.
The media witnesses where hardly much better. Former New York Times reporter Judith Miller, a key component in the case, spent 85 days in jail for refusing to testify before the grand jury about her conversations with Libby because she had promised him confidentiality. In her first appearance before the grand jury, Miller testified as to her July conversation with Libby, but not about a June discussion that included Plame's CIA role. Only after Fitzgerald showed her notes of the conversation did she now recall that earlier conversation, offering the excuse that if she didn't write a story about it she didn't remember the details. A juror asked a question (through the judge) about whether that was her standard procedure. Sitting in a jail in Alexandria for civil contempt because of your conversations with a senior administration official would seem to be a good time to try to remember everything about the case, because there isn't that much else you can do there. How did an important detail of a relationship that could have landed Miller in jail for upwards of eighteen months slip her mind?
Tim Russert had his own problems, this time almost the opposite of the "forgetful first FBI interview" scenario. When first approached by an FBI agent, Russert willingly recounted his conversation with Libby. Later on in the investigation, he refused to cooperate with the grand jury and insisted that his source was confidential. Russert also went on the Don Imus radio program and, according to reports of his interview, sounded almost exultant at the prospect of Libby being indicted. Hardly the neutral journalist whose only interest is the truth. But then, the testimony from Vice-President Cheney's media adviser, Cathie Martin, was about how the Administration sought to manipulate the media, so truth takes a back seat to access, sources, and spin.
I'm not so naive as to think most (or even many) people tell the truth in Washington. But the government's case is built on people who made statements that strain credulity, and worked to manipulate the truth. In that maelstrom of misinformation, can a jury find Libby guilty? The burden of proof is on the government, and the issue is not whether Libby is innocent. In an earlier post, I questioned whether Libby could avoid taking the witness stand -- Is Libby Backpedaling? -- but now I wonder whether he should testify. Ted Wells, one of Libby's defense lawyers, has made a name for himself by successfully representing high-profile political defendants like former cabinet members Ray Donovan and Mike Espy in cases in which they did not testify. The problem for Libby may be his grand jury testimony in which he says he first learned about Plame's identity from Vice-President Cheney, forgot the information, and then had it replanted by Russert. Again, hardly the stuff of a credible witness. But perhaps a defense tactic of "a pox on all the liars" would work. The argument could be that Libby may have bent the truth, but so did everyone else it seems who found himself or herself in the same room as an FBI agent or grand juror, so how can we say he committed perjury, made false statements, and obstructed justice? That might result in a not guilty verdict. (ph)
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