Wednesday, November 16, 2005

Special Counsel Patrick Fitzgerald should drop his prosecution of I. Lewis “Scooter” Libby, Vice President Dick Cheney’s former chief of staff. In light of Bob Woodward’s recent revelations, suggesting that he could have told Mr. Libby of Valerie Plame’s CIA employment, Mr. Libby’s conviction seems unlikely.

Although Mr. Fitzgerald was exempted from the normal Department of Justice regulations governing the conduct of a special counsel, he should nevertheless follow the requirements of the U.S. Attorneys Manual, which provides that “both as a matter of fundamental fairness and in the interest of the efficient administration of justice, no prosecution should be initiated against any person unless the government believes that the person probably will be found guilty by an unbiased trier of fact.” Mr. Fitzgerald may well have believed this standard met when he sought the indictment; he should now reconsider.

Mr. Fitzgerald was originally tasked to investigate whether the revelation, reported by Robert Novak in July 2003, that Bush critic Joseph Wilson’s wife worked for the CIA violated the law. The Intelligence Identities Protection Act (IIPA) was enacted in 1982, and criminalizes the exposure of “covert” American agents. However, to fall within this protected category, an individual in Mrs. Plame’s situation must: (1) be employed in a classified status; (2) either be serving overseas or have served overseas within five years; and (3) the government must be taking affirmative measures to conceal its relationship to the individual. Although Mrs. Plame’s employment was allegedly “classified,” her husband’s own published memoirs suggest that she returned to Washington more than five years before her status was revealed. Moreover, the government was not taking “affirmative measures” to conceal her employment within the IIPA’s meaning. In fact, she was living openly under her own name and working at CIA headquarters in Langley, Va. Significantly, nowhere does the indictment claim that any government official informed Mr. Libby even that Mrs. Plame’s employment was “classified.”

Not surprisingly, Mr. Fitzgerald has not charged anyone with an IIPA violation. Instead, he sought an indictment against Scooter Libby for perjury and obstruction of justice. The core of this case is the claim that Mr. Libby misled investigators, and the grand jury, about having been told of Mrs. Plame’s CIA employment by journalists. In particular, the indictment alleges that Mr. Libby claimed to have been informed of Mr. Plame’s status by NBC’s Tim Russert in July 2003, and that he later told both Time Magazine’s Matthew Cooper and The New York Times’ Judith Miller he had heard this fact from other reporters. Evidently, each of these journalists remembers things differently, and that is the foundation of Mr. Fitzgerald’s case against Mr. Libby.

Enter Bob Woodward, the Pulitzer Prize-winning (for reporting the Watergate scandal with Carl Bernstein) assistant managing editor of The Washington Post. Mr. Woodward has told prosecutor Fitzgerald that he was informed of Mrs. Plame’s CIA connection by another government official in mid-June 2003 (“the reference seemed to me to be casual and offhand, and it did not appear to me to be either classified or sensitive”). Moreover, Mr. Woodward has also stated that he met with Mr. Libby on June 27, taking with him a list of questions which included references to “yellowcake” and to “Joe Wilson’s wife.” Mr. Wilson, of course, was sent to Niger by the CIA (evidently at his wife’s recommendation) to investigate whether Saddam Hussein tried to buy nuclear weapons (yellowcake) material there. Responding to Mr. Fitzgerald’s questions, Mr. Woodward also stated that it was possible (although he does not recall) that he discussed Mr. Wilson or Mrs. Plame with Mr. Libby.

Truth, as they say, is the daughter of time. It is entirely plausible that, whatever the recollections of Mr. Russert, Mr. Cooper and Ms. Miller, a journalist did raise Valerie Plame’s CIA connections with Mr. Libby — who simply confused Bob Woodward with Tim Russert, both of whom are prominent Washington media figures. A reasonable jury could certainly reach this conclusion and, at a minimum, the possibility should raise a reasonable doubt in their minds regarding whether Mr. Libby has perjured himself or obstructed justice. Conviction beyond a reasonable doubt has been variously defined, but generally requires an abiding conviction, to a moral certainty, of the truth of the charge. Is it morally certain that Mr. Libby lied, or did he simply not remember correctly?

Moreover, perjury is not just lying under oath; it is lying under oath about something material. The other counts against Mr. Libby similarly depend upon a material misrepresentation of fact. In this case, the critical fact was that Mr. Libby heard of Mrs. Plame’s CIA employment from media, as well as from government, sources. The precise media source is irrelevant.

Mr. Fitzgerald could, of course, insist on proceeding with a criminal trial. However, in the interests of justice, and especially since the identity of a covert agent was not revealed in this case, he should simply drop the prosecution now. To paraphrase Gertrude Stein, it is increasingly evident that there is just no there there.

David B. Rivkin and Lee A. Casey are partners in the Washington office of Baker & Hostetler LLP, and served in the Justice Department under Presidents Reagan and George H.W. Bush.

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