In the I. Lewis “Scooter” Libby case I shall assume that the matter is as the indictment charges. As Prosecutor Patrick Fitzgerald said, of course, perhaps Libby will be found innocent of the charges [obstruction of justice, making false statements, perjury] at a trial. Or, perhaps more likely, there could be the de facto equivalent of the Scotch verdict of “not proven,” i.e., a jury might return a “not guilty” verdict because, while it thinks Libby is guilty, it doesn’t think this beyond a reasonable doubt. Be all this as it may, it shall be assumed here that the charges are true. The grand jury testimony by Libby that Fitzgerald quoted near the end of the indictment is a dramatic illustration that this assumption is not crazy. To the contrary.
Assuming the truth of the indictment, the question immediately arises of why did Libby, vice president Cheney’s chief of staff, do it? Why did he invent an easily pierced cock and bull story, and why did he think he could get away with it?
His reason for thinking he could get away with it could well be the supposed existence of a reporter’s privilege not to reveal confidential sources, and reporters’ felt duty to protect their sources. One would guess that Libby felt that the big shot reporters whom he told about Valerie Plame–Tim Russert of NBC, Judith Miller of the Times, and Matthew Cooper of Time — would never talk to the prosecutor because of the presumed reporters’ privilege. He may also have felt — it would have been logical to feel — that the prosecutor would never take on these reporters about their invocation of privilege, especially because they were part of large organizations which had the deep pockets necessary to fight the prosecutor in court and totally thwart or at least lengthily delay him — a scenario that eventually occurred.
But this does not answer all the questions. It tells us only why Libby felt he could get away with his cock and bull story, either completely or, at minimum, for a considerable period of time. But why did he do it in the first place? What motivated him?
The answers here would seem to be fairly obvious. Libby is a sophisticated lawyer, it is said. If I remember correctly, he even headed the Washington office of a significant national law firm for a while. For a guy like him to make up a cock and bull story that could land one in jail for decades, the stakes had to be pretty high, high enough so that he would risk falling on his sword. Sure, if the reporters never talked, he would be home scot free. But if they did ultimately talk, he was in big trouble. Yet he took the risk, because the stakes were high.
The stakes must at least have involved the continuing viability of Dick Cheney. Cheney’s office was trying to smear and discredit Joseph C. Wilson IV, whose report had itself discredited the story about Niger uranium. Lots of people in Cheney’s office were told of and were discussing Valerie Plame Wilson. Cheney himself knew about her early-on in the game. There was also the mysterious airplane conversation about her among Cheney and his staff on the way back from Norfolk — a discussion whose contents are still publicly undisclosed. Cheney discussed her with Libby. And Cheney supposedly did not know what was going on, did not know that his people were trying to discredit Joseph Wilson by getting at his wife? Gimme a break. It’s not as if Dick Cheney is a nice guy rather than a savage partisan, you know.
So, at minimum, Libby, a guy who has thus far shown the uncompromising if totally misguided loyalty of a Gordon Liddy, was protecting Dick Cheney. He may also have been protecting George Bush. Bush’s name has not yet figured much in the story. Conceivably it never will, unless much more becomes known than is currently public. The man is very good at having others take the fall for what he must have known about and must have approved because he thought it useful — as the torture debacle proves in spades. Also, Bush and Cheney talk a lot (and Libby too was part of Bush’s close inner circle, was someone to whom Bush often talked). The idea that Bush knew from nothing about all of this stuff that bore on his false justifications for war, and on the effort of Cheney’s people to prevent one of his false justifications from successfully being ripped apart, sounds just a little precious to me. (It may sound that way to some others too, since one lengthy news report took the trouble to interject that, on Friday, October 28, the day he announced the indictments, Fitzgerald had been seen outside the office of the apparently secretive Washington lawyer whom Bush has hired to represent him in this matter, the mysterious James Sharp.)
And then there is also the matter of the 2004 election, a point made by the columnist Tom Oliphant (an unabashed Democratic partisan who nonetheless seems to have hit upon something here). Fitzgerald said — one did not take him literally, but the point probably is broadly true — that were it not for Libby’s lies, he would have brought a case not in October 2005, but in October 2004. But a prosecution in September or October 2004 would have been based on the substantive criminal act of outing Valerie Plame Wilson. Remember, we are assuming that Libby — and nobody else either, I would add — did not lie, so the prosecution would not have been one for perjury and false statements, but one for the substantive crime of outing a CIA officer. This does not exactly comport with Fitzgerald’s failure to charge a substantive crime against Libby , but it was what Libby would have had to fear had he not lied (and it could still happen, a point to which we return below).
A prosecution against members of this administration for outing Plame Wilson — a prosecution that possibly could have been against Cheney too, not just against Libby, and possibly against Rove also, and maybe even against Bush as well — would have been disastrous for Bush’s reelection campaign. It likely would have spelled defeat for Bush and victory for Kerry. This result, Libby would have figured, had to be avoided at all costs. So he stonewalled by lying to the FBI and to the grand jury. By stonewalling through lying, he would defeat even the possibility of a prosecutorial action, or at least would delay any such possible action until long after the election, as occurred. The election, and the return to office of Bush, Cheney and company, was indeed a stake worth falling on one’s sword for. Moreover, even if Libby were convicted long after the election, if Bush won there was always a possibility of a subsequent corrupt pardon (ala Bill Clinton and ala Reagan’s pardon of Casper Weinberger, who covered up for that Administration, including the first George Bush). The possibility of such a pardon was hardly diminished when Bush spoke glowingly of Libby after the indictment.
So, when one asks why Libby lied, what motivated him to make up his cock and bull story, the likely answers do not seem so hard to fathom. Libby was covering up for Cheney, may well have been covering up for Bush too (whose small inner circle he was a part of), and very likely was saving the election for Bush, Cheney and company. These were stakes worth the candle. One should note, moreover, that if Libby lied in order to ward off a Kerry victory, this would mean that Bush was elected the first time by the Supreme Court and the second time because of lies and perjury. This would not speak well for our system, would it?
Which leads, of course, to the question of what does Fitzgerald know about the underlying motivations behind what happened.
Fitzgerald repeatedly said at his press conference that he was saying nothing and charging nothing about the underlying crime (or not) of outing Valerie Plame Wilson. Yet, both at his press conference and in his press release he kept stressing that, before charging a crime here (or anywhere, I take it), the prosecutor needs to know why something was done, what was the purpose of it. Of course, one might say — Fitzgerald would and in effect did say — that purpose is irrelevant to the charges of false statements and perjury; those acts are in and of themselves culpable because, as Fitzgerald said, they prevent the prosecutor from learning the underlying purpose behind the substantive acts.
Yet surely Fitzgerald knows something, must indeed know quite a bit, about such underlying purpose — the whole damn country understands the purpose of discrediting Joe Wilson by letting it be known that his wife was a CIA officer and was behind his trip (a point I shall return to later) — and as a citizen Fitzgerald knows that much. Does he also know a lot more in his role as a prosecutor (though he refused to say)? His people have conducted god know how many interviews (including interviews even with the vice president and president), and have gotten documents. Did every administration interviewee stonewall? Did every one of them lie? Did nobody concede that they had discussed how to discredit Joseph Wilson’s report, and Joseph Wilson himself, and that one way this was attempted was by trying to discredit Joe Wilson by outing his wife? Did no one concede they were mad as hell at the CIA because of its refusal to give unqualified support to the Administration’s phony reasons for war, and were trying to discredit the CIA? A universal cover-up of this nature is an idea a little hard to swallow.
So, unless there were some such universal cover-up, Fitzgerald must know a good deal, in his role as a prosecutor, about what the underlying purpose of the outing was, what its basic motivation was. And now that Libby has been indicted, the pressure will be on him to cut a deal to shorten his sentence, and possibly to avoid a second indictment on the underlying substantive charge, by revealing more. There will also be pressure on other Administration figures who are involved to cut a deal in order to avoid the possibility that they may be indicted (or listed as unindicted co-conspirators). (One thinks of people like Rove, conceivably David Addington, who is known to be ferociously savage to those who oppose his view, or conceivably John Hannah.) All of this remains in the bosom of the future, of course. But if Fitzgerald was telling the truth about the need to learn underlying purposes during an investigation — and so far he has given the impression of being one of the few involved in high level Washington matters who does not prevaricate or lie — then there is bound to be more to come. As the reporters say, stay tuned.
Lawrence R. Velvel is the Dean of Massachusetts School of Law. He can be reached at velvel@mslaw.edu.
