A Libby cover-up scenario that appears to fit many of the facts

Overview

First, let’s state that Scooter Libby may be entirely innocent of the charges brought against him by Patrick Fitzgerald. Maybe Fitzgerald just got it wrong. However, that appears difficult to believe since, among many things, Libby knew from multiple government sources by June 12, 2003 about Wilson’s wife, and he testified that “in my mind I still didn’t know it as a fact” a month later (p. 20). Second, maybe Scooter Libby isn’t the highly intelligent and rational man he appears to be, as Tom McGuire says, tongue in cheek, which could explain his “daft” story, and lay the groundwork for an insanity defense. Neither possibility seems likely to us.

Also unlikely is a favorite theory of the conspirazoid Left, that the Bush administration was lying about WMD in Iraq; according to this theory, Libby would have been trying to discredit Joe Wilson’s “whistleblowing” efforts. We wish the Left well if they want to keep pursuing it, but it is a non-starter. From the media’s own extensive reporting of Iraq WMD’s in the 1990’s, to the reports of every intelligence service in the world about their existence post 9-11, to our own troops’ extensive preparations for chemical attacks in March 2003, to Saddam himself being a Weapon of Mass Destruction, the “false pretenses” theme has no legs as a political issue in our opinion. Indeed, the Senate Select Committee on Intelligence review of the credibility of Wilson makes rather the opposite argument. Our view is that members of the Bush administration wanted to discredit Wilson, but for the false things he was saying, not any true things.

Yet we can imagine a scenario in which there was a cover-up done by Scooter Libby, and it fits many of the facts that are now public. We believe it is possible that Scooter Libby (and possibly Karl Rove in the early days) covered up the facts of the Plame affair to push the eventual dénouement out past the November 2004 election.

We note, in advance, that the entirety of this post is incorrect if Tim Russert lied in his testimony to the Grand Jury. Otherwise, it tends to hang together.

Discussion of Wilson

Joe Wilson is a bad guy. He told all kinds of lies about his mission to Niger, and put forward the notion, starting in May 2003, that the US had gone to war in Iraq under false pretenses. The question for the administration was how to deal with this popinjay.

One strategy would have been to ignore Wilson and wait for him to self-destruct. Though he is still a celebrity to a limited audience on the Left, he is such a blowhard that in our view, left to his own devices, he would have had a shelf life only slightly longer than Monica Lewinsky’s attorney. Don’t feed a camera hog; starve him. This would have been, in retrospect, the wise strategy. It was not the strategy apparently chosen by the administration, however.

Scooter Libby (and possibly Karl Rove?) in our view, decided to take a different tack. They apparently thought that making the Niger trip look like some kind of CIA boondoggle — an unimportant, low level affair of which George Tenet was completely unaware — could diminish Wilson’s claims to credibility. As Robert Novak fatefully wrote on July 14, 2003:

The CIA’s decision to send retired diplomat Joseph C. Wilson to Africa in February 2002 to investigate possible Iraqi purchases of uranium was made routinely at a low level without Director George Tenet’s knowledge…..Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction. Two senior administration officials told me Wilson’s wife suggested sending him to Niger to investigate the Italian report. The CIA says its counter-proliferation officials selected Wilson and asked his wife to contact him.

Libby, and maybe Rove as well, perhaps thought it would be useful to muddy the waters around Wilson and his trip by portraying it as an low-level, inside job for a retiree with family at the CIA. Perhaps too they thought that the CIA connection itself would help discredit Wilson, given that agency’s track record of incompetence. The issue then became how get the word out about the Wilson trip being an inside job, and Libby at least settled on the tactic of telling reporters what he claimed to have heard from other reporters. One gets the impression that this tactic of telling one reporter what a White House insider has “heard” from other reporters is very common, and mostly a harmless approach to preserving plausible deniability.

The situation got messy after the DOJ authorized a probe on September 26, 2003 into what was possibly an illegal leaking of Valerie Plame’s name, and Libby reached a critical decision point.

The cover-up begins

The original leaking and counter-leaking between Wilson and the administration in July was all good fun, but after the investigation was launched, the principals had to decide what to tell the FBI. Libby decided to hunker down.

The strategy of a cover-up was determined before October 10, 2003, when the White House Press Secretary assured reporters: “I spoke with those individuals [Karl Rove, Elliot Abrams, Lewis Libby], as I pointed out, and those individuals assured me they were not involved in this. And that’s where it stands……They assured me that they were not involved in this…..The leaking of classified information.”

On October 14 and November 26, 2003, FBI agents interviewed Scooter Libby. This was a critical decision point. He could have told the FBI that he lied to reporters about having “heard” from other reporters about Plame. After all, it is no crime to lie to reporters, but it is a crime to lie to the FBI. But Libby, according to the indictment (p. 9), said just the opposite, that it was Tim Russert who told Libby about Plame. Could Libby have possibly believed that such a story would go unchecked? Such an extravagant lie!

The strategy of the cover-up: delay as long as possible?

Moreover, such a lie is a lie with consequences. When Libby told the FBI that he got his information from Tim Russert, Tim Russert was undoubtedly added to the list of people the FBI needed to question. And there is an even greater consequence to this particular extravagant lie. Because the other end of the conversation with Libby was a reporter, the lie virtually guaranteed a long delay in determining it was a lie, since reporters routinely insist on protecting conversations with sources. If Libby was plotting cover-up strategy, he knew he had bought himself the better part of two years of continued investigation by naming reporters as the people who told him of Plame. If the cover-up was designed to get past November 2004 without the Plame leak being adjudicated a scandal created by administration officials, Libby’s testimony was brilliant.

(It is interesting to think about why Libby named Russert as opposed to saying, as did Judy Miller in the “Flame” episode, that he heard various reporters talking about Plame but could not remember who they were precisely. Such a tactic on Libby’s part would have had the upside of possibly keeping him out of jeopardy, but it also could have resulted in the case being closed quickly in 2003, with fingers pointing mostly back to administration officials instead of unnamed reporters. Perhaps in the fall of 2003, Libby still thought that the FBI might buy his story and the matter would die. That hope surely vanished with the empanelling of the Grand Jury.)

Ashcroft leaves, Fitzgerald enters

Perhaps it was the need to convene a Grand Jury with subpoena powers, in part in order to force reporters to testify, that was behind John Ashcroft’s decision to recuse himself from the Plame affair on December 30, 2003. The reasons for Ashcroft’s recusal and the appointment of Patrick Fitzgerald have not been made clear. However, in discussing the appointment of Fitzgerald, the Washington Post noted that “the FBI has told people who have been interviewed that they may soon be called to testify before a grand jury.”

Yet another critical decision point arrived in early 2004, when Libby was called to testify before the Grand Jury. However, he chose not to reverse course. Libby instead repeated his previous assertions on March 5 and March 24, 2004 to the Grand Jury. Libby testified that on July 10, 2003 he had a conversation with Tim Russert, in which Libby asserted again, incredibly, that Russert told Libby about Plame, and moreover that Libby was in the dark about her. Here’s what Libby said about his conversation with Tim Russert:

Libby is testifying that on July 10, 2003, he heard from Russert that Plame worked at the CIA, and that he was unaware of her and her job. The absolutely incredible part of this testimony by Libby is that he had already turned over to the Grand Jury, as part of the discovery in the case, notes — in his own handwriting — of a conversation with Vice President Cheney that showed he knew about Plame’s employment a full month earlier (June 12, 2003 according to the NYT). Not only did Libby’s own handwritten notes contradict his testimony, but Fitzgerald’s interviews with many other White House and administration official belie the strange story Libby put forward (pp. 12-13):


The question is: why?

Libby’s own notes show that he knew about Plame in early June 2003. His conversations with many government officials show the same thing. Yet Libby continued to stick with the testimony he originally gave in the fall of that year, even though it was abundantly contradicted. Why?

We believe that the answer may be very simple. When Libby gave his allegedly false statements to the FBI, he knew that what the testimony of other officials would likely be in a Grand Jury; he knew what his papers would show when they were turned over in discovery. Yet he went ahead with his absurd story that Russert had told him about Plame and that he had been unaware of her — even though both points were trivially easy to refute.

However, as easy as Libby’s story was to refute, it was also a story that could not be refuted quickly. If Libby, or other high-ranking administration officials, feared that disclosure of CIA employee Valerie Plame’s name by a high-ranking administration official might create a scandal in the 2004 election season, a short-term-brilliant, long-term-foolish approach would be to name reporters as the source, since there would be lengthy court battles before they testified.

A successful cover-up strategy

If delaying a conclusion to the Fitzgerald inquiry beyond November 2004 was Libby’s goal, he succeeded. Tim Russert gave a limited interview to Fitzgerald in August 2004, after NBC exhausted its legal challenges, according to an NBC press release. Matthew Cooper of TIME was held in contempt in August 2004, and finally testified to the Grand Jury in July 2005 which he discussed, oddly enough, with Tim Russert after his testimony. Not only did the New York Times fight the Fitzgerald subpoena and Judy Miller go to jail for 85 days rather than testify, her last appearance before the Grand Jury extended into October 2005. There can be little doubt that if the cover-up strategy was delay beyond November 2004, it has been spectacularly successful.

What now?

We found this statement by President Bush on Libby very interesting (via NYT):

PRESIDENT BUSH: Today I accepted the resignation of Scooter Libby. Scooter has worked tirelessly on behalf of the American people and sacrificed much in the service to this country. He served the vice president and me through extraordinary times in our nation’s history. Special Counsel Fitzgerald’s investigation and ongoing legal proceedings are serious. And now the proceedings — the process moves into a new phase. In our system, each individual is presumed innocent and entitled to due process and a fair trial.

Libby is not being hung out to dry by the administration, despite what looks like a strong case against him. Is it because he is innocent? Is it because Libby’s crime, if he is guilty, was generated by the investigation, not the Plame leak itself, and hence might be considered not terribly serious? Is it because Libby has been a good team player? Is it because Rove is apparently cooperating with Fitzgerald now, and Libby has been designated as the fellow who is going to take one for the team? Or is there some other reason of which we are unaware? This could be a very interesting case if it goes to trial.

UPDATE

It certainly does no harm to our cover-up thesis that Libby’s defense strategy is apparently that he doesn’t recall his many meetings with government officials about Plame, or his own handwritten notes on the subject, or much of anything else — except recalling quite specifically, on numerous occasions, that it was Tim Russert who told him about Plame (via AP):

Libby, who resigned as soon as the indictment was handed up, was operating amid “the hectic rush of issues and events at a busy time for our government,” according to a statement released by his attorney, Joseph Tate. “We are quite distressed the special counsel (Patrick Fitzgerald) has now sought to pursue alleged inconsistencies in Mr. Libby’s recollection and those of others and to charge such inconsistencies as false statements,” Tate continued. “As lawyers, we recognize that a person’s recollection and memory of events will not always match those of other people, particularly when they are asked to testify months after the events occurred.”

9 Responses to “A Libby cover-up scenario that appears to fit many of the facts”

  1. Lesley Says:

    Jack, I support your theory to a point, however, would you ruin your good name, destroy your career, lose your license to practice law, incur hundreds of thousands of dollars in legal expenses, destroy your family life (embarrassment – think of the impact on your wife and kids with the horrid headlines), the threat you might end up in jail for years & a million plus in fines, just to stifle a potentially damaging story to the WH prior to election?

  2. Clarice Says:

    Nahh–Don’t think so. He could have accomplished a halt to this by resigning and when called to the gj take the Fifth. End of story. I think he may have been mistaken about Russert or that Russert misremembered. Cooper’s story isn’t substantially different that his and Miller’s testimonial portions in the indictment vary from her published report which indicated she may have had the name/Libby was vague/and he said Wilson’s wife may have worked in the Bureau..

  3. Joe Solters Says:

    I hope bloggers with legal backgrounds (not me) will focus Fitz’s gratuitous comments about Plame’s “classified’ status and its relationship to the espionage statute. If followed-up to final legal action, Fitz’s ruminations would require a never-ending witch hunt involving every single person who touched any aspect of this case to determine violations of the espionage statute. Courtrooms and jails aren’t nearly big enough to handle these issues. The prospect of going to jail for passing-on classified information would shut down Washington overnight. Why did Fitz dignify this nonsense; and is this issue dead or alive for the trial phase on this case?

  4. Clarice Says:

    Tom Maguire argues very persuasively that Plame was not undercover.(Just One Minute blog) and in it he notes that DeGenova says if Fitz tries to raise the question of classified information he opens the entire case up to the question of just how hard (not at all) the CIA tried to keep that secret and to the testimony under oath of Wilson/Plame/ etc.

  5. Tom Maguire Says:

    That’s a good job.

    A related idea which may explain why there were no indictments on the original leak – suppose Libby lied to the Novak leakers? What if he told, let’s say, Ari Fleischer and Karl Rove that reporters were buzzing about Wilson’s wife. Libby’s knows it’s false, but they don’t; they talk to Novak; history is made.

    Can Fitzgerald prosecute Fleischer and Rove for that leak? Almost surely not. But then Libby feels even more pressure to stick with his story, or the whole thing looks like a scam, and all three of them will get indicted. Now, why couldn’t Libby simply testify that he lied to Rove and Fleischer? Well, who would believe it?

    Ok, this is getting out there, but – as the investigation unfolded, Rove would make it clear to Libby that if he wanted even a glimmer of a hope of a pardon, he would have to see it through. But if Libby, having set Rove up, then took him down – curtains for Libby.

    Well, a bonus puzzle – Libby’s lawyer sat through the FBI interviews – doesn’t he have an obligation to prevent false testimony? And shouldn’t he have seen Libby’s notes?

  6. Barbara Gelman Says:

    Nice theory. I think Libby might sacrifice himself “for the team,” knowing he’d have the best defense money and influence can buy, particuarly, if the crime is not considered serious. (Though lying to the FBI is big stuff, no?) He’ll write his memoirs and make milliions!

    The idea of delaying the outing of the story until after the election is icky and suggests Rove was way more involved, potentially, VERY damaging for Bush. Hence the delay tactic.

    Hhm….

  7. BurkettHead Says:

    Why wouldn’t Libby come clean after the election? Why would he wait until he’s indicted & try to clear himself at trial?

  8. Martin Morgan Says:

    Of course this was about delaying the probe beyond the elections.

    Why should Libby give a damn even if he gets convicted? Iran Contra was far more serious a matter than Plamegate and look how those felons made out: fat. happy, working at Fox News, and hell some are back in government!

    When you’re soft on crime, you get more criminals.

  9. Tom Mustin Says:

    If I’m defending Libby, I’m sure as hell going to pursue the “classified” nature of her employment if Fitzgerald utters one word about it in his opening statement or at any time thereafter. I might even make the issue admissible even if Fitzgerald doesn’t bring it up, on the theory that my client wouldn’t lie about doing something that wasn’t even a crime. And I’m going to raise, as part of my defense, the notion that what my client was doing was telling the truth about a man who was telling lies about very serious matters of national security. I’m going to put that gasbag Wilson on the stand and let him blow hiw own garage doors off. I’m going to make the trial as much about him and his lies as I can. And brother, am I ever going to trot out a bunch of CIA folks to talk about the origins of this trip, and what Wilson actually reported to them on his return. I’m going to have a great deal more fun with this case than Joe and Valerie Wilson are.

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