The Indictment Instapundit Calls A Rabbit

I just skimmed it and checked out a few lawblogs for first impressions. I heard parts of the Fitzgerald press conference. My impression is that it is a well-crafted indictment that depends entirely on the credibility of three people to convict. Without the testimony of Judy Miller, Tim Russert and Matt Cooper holding up on cross examination as to three separate conversations, this case cannot be won.

With all due respect to Mr. Fitzgerald, this case does not hang together.

This is a classic credibility question with the only evidence against him on the critical issues in the case being the eye witness testimony of three individuals about three ten- to fifteen-minute conversations. Libby testified before the Grand Jury as to his recollection of each of those conversations. Apparently the testimony of Miller, Russert and Cooper either did not corroborate Libby's versions of those conversations or contradicted them. Each of the three conversations was one on one.

The indictment alleges pretty convincingly that before the reporter conversations, Libby was told by a number of people that Wilson's wife worked at the CIA. At least one of those conversations was recorded in notes Libby provided to the grand jury. There is therefore plenty of testimony that Libby was at the very least dissembling to the reporters.

But the indictment does not allege that Libby testified before the grand jury that he did not know that Wilson's wife worked for the CIA before he spoke with these reporters. Rather, the indictment alleges that Libby lied to the FBI agents by telling those agents:

(a) Russert asked Libby on July 10 if Libby knew that Wilson's wife worked for the CIA and told Libby that all reporters knew it;

(b) That Libby was surprised to hear from Russert that Wilson's wife worked for the CIA;

(c) That Libby told Matt Cooper on July 12 that he had heard that other reporters were saying that Wilson's wife worked for the CIA, and that Libby did not know whether that was true;

(d) That Libby "advised" Judy Miller that he heard that other reporters worked for the CIA, and that Libby did not know whether that was true.

According to the indictment, Russert made no such assertions and Libby did not tell either Miller or Cooper what he said he told them. The indictment says in fact Libby "confirmed" to Cooper that Wilson's wife worked for the CIA.

The first perjury count alleges that Libby lied when he gave the underlined testimony under oath before the grand jury, which the indictment claims is false:

And then he said, you know, did you know that this – excuse me, did you knowthat Ambassador Wilson's wife works at the CIA? And I was a little taken aback by
that. I remember being taken aback by it. And I said – he may have said a little more
but that was – he said that. And I said, no, I don't know that. And I said, no, I don't
know that intentionally because I didn't want him to take anything I was saying as in
any way confirming what he said, because at that point in time I did not recall that
I had ever known, and I thought this is something that he was telling me that I was
first learning. And so I said, no, I don't know that because I want to be very careful
not to confirm it for him, so that he didn't take my statement as confirmation for him.

Now, I had said earlier in the conversation, which I omitted to tell you, that
this – you know, as always, Tim, our discussion is off-the-record if that's okay with
you, and he said, that's fine.

So then he said – I said – he said, sorry – he, Mr. Russert said to me, did you
know that Ambassador Wilson's wife, or his wife, works at the CIA? And I said, no,
I don't know that. And then he said, yeah – yes, all the reporters know it. And I said,
again, I don't know that. I just wanted to be clear that I wasn't confirming anything
for him on this. And you know, I was struck by what he was saying in that he
thought it was an important fact, but I didn't ask him anymore about it because I
didn't want to be digging in on him, and he then moved on and finished the
conversation, something like that.

The second perjury count relates to Libby's testimony about his conversation with Matt Cooper and is too long to include here verbatim, but essentially tracks what Libby told the FBI he told Cooper.

As noted above, the entire case is about three short conversations that happened on two days in July.

I think a trial will be very hard for the prosecuter to win unless Russert, Cooper and Miller are much better witnesses than Libby under cross examination. I am doubtful that they will be. Reporters are not used to being challenged by skillful counsel. Lawyers are.