Fitzgerald's Defense

Sunday, November 06, 2005
The Washington Post today has an interesting article on the difficulties facing Pat Fitzgerald in prosecuting Scooter Libby.

Two massive hurdles stand in Fitzgerald's way. First, the indictment's 22 pages fundamentally boil down to allegations that Libby lied, both to FBI agents and to the grand jury, about what happened during conversations with two different reporters: one with NBC's Tim Russert on July 10 or 11, 2003, and one with Time's Matthew Cooper on July 12, 2003. In the absence of a tape recording of these private, off-the-record conversations, the prosecutor's hurdle will be to prove beyond a reasonable doubt that the reporters' recollections of these conversations represent what actually happened; in other words, that Libby's testimony was false. This could easily amount to little more than a "he said/she said" swearing contest, and juries justifiably often demand far more from prosecutors before deciding to send someone to prison.

Second, even if Fitzgerald is able to persuade the jurors to accept Russert's and Cooper's recollections of events, the fact that Libby testified falsely does not, by itself, make him guilty of anything. Under the law, Libby cannot be convicted of perjury, making false statements or obstruction of justice unless the prosecutor can persuade the jury beyond a reasonable doubt that Libby knew he was lying at the moment those words left his mouth and that he uttered those words with the intention of deceiving the FBI and the grand jury. It's not nearly enough to prove that Libby got it wrong. Fitzgerald's team must prove that he did it on purpose.


The long and short of it is that, no matter how at odds with circumstantial evidence it may seem, an individual's good-faith belief that his statements are true is an effective defense. It could work for Scooter Libby, too.

Continuing with the notions that have been on my mind since the indictment, I find myself wondering: if Fitzgerald felt, for reasons of pride or ego or simply because he didn't want, as a career Justice Department prosecutor, to be labeled as a Republican stooge if by chance the Democrats won the next election, that it wasn't feasible to "no bill" the whole thing, wouldn't the next best thing be to indict someone for something known to be hard to prove, in a very narrow indictment; talk a lot about how "serious" it was without indicting for the things he considered serious; and then lose? Then you can give one of those "we swung and we missed" speeches, or talk about how the powerful can get away with things that mere mortals can't --- and there's always the chance that, with a DC jury and the legacy press coverage, you might just get a conviction.

Oh, it'd cost Libby a couple million dollars for defense, and the Federal government millions to try, but isn't that better than risking your career?


David Thomson said...

Gee whiz, did the Washington Post plagiarize me and others who saw this clearly over a week ago? Why are its journalists so far behind the curve? Patrick Fitzgerald’s only realistic hope is that the jury will likely be comprised of Democrats who despise Republicans. Other than that, I can’t imagine twelve jurors unanimously convicting Scooter Libby. In most areas of the country, Fitzgerald would not even dare take this case to trial.

ex-democrat said...

hah - you're exactly right david - i went back to quote something from the thread but it's now so long ago that it's fallen off.
still, perhaps we should view WaPo plagiarizing the contributors here as a positive development.

Peter UK said...

There has been a great deal of talk concerning the Republicans Smearing Joe Wilson and outing Valery Plame,but nothing about liberal journalists,, liberal with the actualite to smear the administration.

BTW it is t o be hoped that none of the journalists were drinking at the time

terrye said...

It is very difficult to prove intent.

I know I have had the experience of remembering the same conversation differently than someone else. The reporters might keep notes of all these conversations but Libby is a busy man and he spends a great deal of his life on the phone and I would imagine he was trying to not say certain things, so his recollection might well be different.

A bad memory is not a criminal offence.

Time will tell, but I will be suprised if he is convicted and I will be surprised if Rove gets in any deeper.

But of course the press will milk it.

Syl said...

It's not just memory. I don't think Libby could have really forgotten he didn't know about mrs. wilson being CIA since he'd already been told a few times, the latest within a couple of days of his conversation with russert.

These lawyers, unless they're not saying it, don't seem to see what's obvious. That Libby was surprised at hearing about mrs. wilson's cia connection from Russert.

However Russert says they didn't discuss it..though we have no quotes.

And from some transcripts Tom Maguire has found, Russert seems a bit confused and it looks to me like he was just guessing what he might have said/not said to Libby when he was asked the question by investigators. I think Russert simply does not remember what he said to Libby.

Which is fine, but it's really important for Libby's case that Russert told him that mrs wilson is CIA.

Andrea mitchel (the transcript has been found) admitted she knew it...had gotten it on her own.

But we do have to give WaPo credit for printing that. I doubt the New York Times would.

Syl said...

To clarify. Libby was surprised at hearing about mrs wilson from Russert and was careful to pretend he didn't already know it.

Which explains his 'forgetting' which was really only pretending to forget.

I wonder if these lawyers have any experience dealing with classified information and what your mental state would be if you knew something you weren't supposed to say and boom someone who isn't supposed to know it tells you.

Peter UK said...

What is worrying is that the indictment has been brought because the word of journalists contradict Libby.Shouldn't the journalists also have gone befor the grand jury,to ascertain there was a case to answer.

vnjagvet said...

Here is what I said in response to one of Terrye's probing questions on October 28:

"Here's what the indictment says happened:

In Libby's interviews with the FBI he gave them a version of his conversations with Russert on July 9 and with Miller and Cooper on July 12.

This version was consistent in all of his interviews with the FBI.

Then he gave his grand jury testimony. Libby's version of those conversations stayed the same. I quoted his version of the Russert conversation from the indictment.

The allegations in all counts is essentially that his version of the conversations with Russert, Cooper and Miller (as related to the FBI and grand jury) was false in material respects.

The only way this could be so is if the other parties to the conversations, Russert, Cooper and Miller gave testimony differing from Libby in those material respects."

I got alot of arguments on JOM and other places at the time that I was parroting Republican talking points. Of course, that was BS. The quote sounds about like what the WAPO reporter says today, but shorter.

As this goes on, it will be interesting to see how our other presdictions play out. Where on the record, exposed to the elements. Bring it on (I think I heard that somewhere before)!

terrye said...


You can imagine Libby's reaction when talking to someone like Russert:

What does this guy know?

How did he find out?

Is he fishing?

I can't let him know that I know he knows etc.

Like I said before that bum Wilson should be the one in jail for starting this whole thing.

Anonymous said...

Technically, I think Fitz' indictment is that Libby repeated these converations in response to an inquiry as to where HE first learned of the CIA connection.That is, that he was trying to conceal that he had independent, perfectly legal information about this earlier from government sources.

Absent an entire transcript I can't say if there is any evidence for this.
My hunch is that it is less clear cut than Fitz would have us believe. Else why no simple question in the indictment's transcript snippets--when, from any source, did you learn...?
In any event, the way Fitz framed it, I expect the trial will muddle on to become a he said/she said type hearing and Levy has a good point.

If Libby had heard it in a manner that was unlawful ,one might argue intent to hide, but he didn't, did he?And in the end that comes down to-- so what?How do you get to intention to misstate a material fact?And materiality is essential to a perjury conviction.If he heard it first from Tenet or Cheney or Russert, isn't the question who he told it to? Was that person cleared to hear it?

I suppose if he were looking for a conspiracy to "out" Plame it might be relevant, but quite obviously there is no evidence of that and one person (Libby) can't conspire with himself.

I also am troubled about the materiality of these conversations themselves. If the question were did he violate the IIPA or espionage acts in them, I could see it. That was the thrust of the investigation which adds to my belief that he'll argue the questions were ambiguous and he truthfully answered them to the best of his ability.But that isn't the charge. And we get back to what difference does it make what he said to Russert as long as he didn't break the law in what he said? In other words, it's not material.

I'm sorry if this sounds incoherent, but I'm proud--I choose to think it's the indictment which is confusing and incoherent and not me.


Rick Ballard said...


The indictment is one of the damnedest documents I have ever read. If it were possible, I would swear in and depose each grand juror individually and separately and demand that they explain precisely what they think it says while letting them hold it in their hands.

I bet I could come up with 20 perjury indictments solely on the basis of those depositions. Impressive in it's clarity, it ain't.


I continue to concur - only more fervently.

Anonymous said...

An excellent WSJ Online analysis of the defense plans re reporters--HEH