Wednesday, November 16, 2005

Bob Woodward’s just-released statement, suggesting that on June 27, 2003, he may have been the reporter who told Scooter Libby about Joseph Wilson’s wife, blew a gigantic hole in Patrick Fitzgerald’s recently unveiled indictment of the vice president’s former chief of staff.

While that indictment did not charge Mr. Libby with outing a CIA covert operative, it alleged that he lied to investigators and the grand jury. As we have stated earlier on this page — and unlike many conservative voices then — we believe perjury is always a serious offense (even in a political setting). And if sufficient evidence exists to support a conviction, then Mr. Fitzgerald’s indictment of Mr. Libby was fully warranted.

However, the heart of his perjury theory was predicated upon the proposition that Mr. Libby learned of Valerie Plame’s identity from other government officials and not from NBC’s Tim Russert, as claimed by Mr. Libby. Indeed, Mr. Fitzgerald seemed to have a reasonable case because Mr. Russert, a respected and admired journalist, with no vested interest of his own, denied that he discussed the Mr. Wilson’s matter with Mr. Libby.

However, given Mr. Woodward’s account, which came to light after the Libby indictment was announced, that he met with Mr. Libby in his office — armed with the list of questions, which explicitly referenced “yellowcake” and “Joe Wilson’s wife” and may have shared this information during the interview — it is entirely possible that Mr. Libby may have indeed heard about Mrs. Plame’s employment from a reporter. Given the fact that the conversations in issue — the one with Tim Russert and the one with Bob Woodward — were separated by less than two weeks, and that officials like Mr. Libby juggle literally hundreds of matters on a daily basis, it is entirely plausible that he confused the two reporters. There certainly was no possible reason for him to mislead Mr. Fitzgerald on this issue, since the point he was trying to make, originally to the FBI investigators in October 2003, and later on to the grand jury, that Valerie Plame’s identity was known to a reporter who imparted it to him was equally compelling, no matter what the identity of that reporter.

In light of these facts, it is at least doubtful whether a reasonable jury would find Mr. Libby guilty. Moreover, as argued by Washington lawyers David Rivkin and Lee Casey in an article appearing on today’s op-ed page, under the U.S. Attorney’s Manual provisions, no prosecution should be commenced unless the attorney representing the government believes that he has evidence that will probably be sufficient to obtain a conviction. Accordingly, Mr. Fitzgerald should do the right thing and promptly dismiss the indictment of Scooter Libby.

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