Two presiding deities – and lively ghosts
they are – continue to hover over the present administration: Vietnam and
Watergate. Though the competition between them is fierce, this week Watergate
suddenly surged to the fore as the Washington Post's Bob Woodward, famed
investigative reporter turned imperial
"stenographer" for the Bush administration, crashed and burst into distinctly
Judy-Miller-esque flames. Even Woodward's blurry
account of his testimony for Special Counsel Patrick Fitzgerald had a taste
of Millerdom to it. It's interesting, by the way, that he thought to offer an
to his Washington Post colleagues and boss, but not to the Post's
readers who might wonder why the supposed greatest reporter of our times swallowed
the first Plame leak the way a cat might a canary and later went out on the
hustings claiming there was little
significance to the case. On Larry King Live ("When the story comes
out, I'm quite confident we're going to find out that it started kind of as
gossip, as chatter
") and National Public Radio ("When I think all of the
facts come out in this case, it's going to be laughable because the consequences
are not that great…"), he dissed the case, while referring to Fitzgerald as
"a junkyard-dog prosecutor." It's quite a sordid little tale. So prepare yourself
for another perfect storm of newspaper and blogging criticism over the sad fate
of the mainstream media and our – until recently – less than investigative
But I suspect the real story is elsewhere. The great lesson of the Watergate
era was: However bad you think things are, however nefarious you believe the
administration's plans and actions might be, however deep you believe their
roots might reach, it's only going to prove worse as the facts emerge –
and it looks like one small, new fact has indeed emerged from what Rory O'Connor
at the Alternet Web site is already calling Woodward-gate.
The source who informed Woodward of CIA agent Valerie Plame's name and occupation
weeks before it was (as far as we know) slipped to any other reporter was not
indicted former Vice Presidential Chief of Staff I. Lewis Libby or, according
New York Times (which gave the Woodward story the sort of instant
front-page attention it so long denied the actions of its own "embedded" reporter
Judy Miller), President Bush, or White House Chief of Staff Andrew Card, or
Card's counselor Dan Bartlett, or former Secretary of State Colin Powell, or
the former director of the CIA George Tenet, or his deputy John E. McLaughlin,
or, for that matter, Karl Rove. It's someone other.
That someone other – according to Jason Leopold (one of the rare online reporters
to do regular investigative work) and Larisa Alexandrovna at the
Raw Story Web site – may be former deputy national security adviser, now
National Security Adviser Stephen Hadley, a hardliner
and part of "a loosely constituted group of foreign policy advisers known as
the Vulcans who advised candidate Bush in 2000 and were at the core of the presidential
transition team following Bush's election." He is well known for his closeness
to Vice President Cheney from whose office so much of the Plame affair seems
to have been planned. Though
not the only suspect, that he might be Woodward's leaker would hardly be
surprising. He was deeply enmeshed in the planning for the Iraqi invasion, seems
to have been involved in the touting of the forged Niger "yellowcake" documents,
and was even the official "fall guy" (along with CIA Director Tenet) for those
infamous sixteen words on Niger uranium that made it into the president's 2003
State of the Union Address. As he put it then, "I
should have recalled
that there was controversy associated with the
uranium issue" (only to repeat in a subsequent Chicago Tribune op-ed
the claim that Saddam's "regime has tried to acquire natural uranium from abroad").
If Hadley is indeed the ur-Plame-leaker, it merely indicates what everyone should
by now have suspected – that the discussion of how to discredit ex-ambassador
Joseph Wilson's trip to Niger went wider and deeper than previously known; that,
to use a word Patrick Fitzgerald has yet to mention, the "conspiracy" had deep
Looking back on Fitzgerald's Oct. 28 press
conference, two things stand out for me: First, he capitalized brilliantly
on an administration mistake. Days before his appearance, the Republicans started
leaking "talking points" dismissive of the significance of a Libby indictment.
The special counsel clearly took the opportunity to study them and much of his
press conference was implicitly devoted to dismantling them, something he did
so effectively that they have hardly surfaced since. Second, Fitzgerald's message
seemed essentially to be this: He had been pursuing the Plame investigation
when one or more people got in his way, obstructing his view; he was now indicting
one person (and leaving open the possibility of indicting another on the similar
grounds). He was, that is, simply and quite logically clearing his sight lines,
leaving the case itself still to be dealt with. In due course, we should expect
more of it to come into view.
In the meantime, former federal prosecutor Elizabeth de la Vega who, in "The
White House Criminal Conspiracy," a cover story for the Nation
magazine and for TomDispatch, recently made a case for the way the Bush administration
defrauded the American people into war, considers below what the fate of I.
Lewis Libby is actually likely to be. She offers answers that might surprise
those who believe Woodward's
revelation will work to Libby's advantage. De la Vega will continue to cover
the Plame case and its ramifications for TomDispatch. Tom
The "Some Other Dude Did It" Defense of I. Lewis Libby
by Elizabeth de la Vega
Shortly after Vice President Cheney's former
chief of staff, I. Lewis ("Scooter") Libby, was indicted for obstructing justice
and making false statements to a government agent and a grand jury, Libby's
attorneys suggested that they would use the standard he's-a-busy-man-who-can't-remember-everything
defense. But now, with Washington Post reporter Bob Woodward's revelation
that a senior administration official other than Libby told him, in mid-June
2003, that Joseph Wilson's trip to Niger had been arranged by Wilson's CIA operative
wife Valerie Wilson, it appears the Libby team has added another favorite, the
SODDI Defense – as in, "Some Other Dude Did It." Unfortunately for Libby, that
turkey won't fly. Here's why.
According to Libby's attorney, Theodore Wells, Woodward's disclosure is a
"bombshell" that "undermines the prosecution" because it disproves Special Prosecutor
Patrick Fitzgerald's alleged contention that Libby was the first senior administration
official to reveal to a reporter that Valerie Wilson worked as a CIA analyst.
Not true. For starters, a prosecutor's press conference statements are irrelevant
to, and not admissible in, the trial of the case. And Fitzgerald never said
Libby was the first official to have disclosed information about Valerie Wilson;
he said Libby was the first official known to have disclosed such information.
More important though, it is of no help to Libby that another administration
official, "some other dude," disclosed classified information about Valerie
Wilson's employment in order to discredit her husband before Libby himself did
so. (By the way, Woodward's impression that the disclosure by his source was
"casual" proves nothing about whether the smearing official knew that the information
being leaked was classified.) Despite the impression newspaper readers may carry
away from the flap over Woodward, Libby is not charged with being the first
to disclose Valerie Wilson's employment; he's not charged with disclosing anything
at all. And in a criminal trial, it is the charges that define the issues. What,
exactly, are those charges?
There are five counts. Count One charges Libby with obstructing justice by
deceiving the grand jury about when and how he "acquired and subsequently disclosed
to the media information concerning the employment of Valerie Wilson by the
CIA." Count Two charges Libby with making false statements to the government
about his conversation with NBC News reporter Tim Russert on July 10, 2003.
Count Three charges him with making false statements to a government agent about
a July 12 discussion with Time magazine reporter Matt Cooper. Four and
Five charge him with making false statements to a grand jury about those conversations.
So, the essential questions on which a jury would have to pass judgment at
a trial would be:
- Did Libby make the statements that the indictment alleges he made?
- Did the statements relate to an issue that was material – that is, important
to the investigation?
- Were those statements true when Libby made them?
- If the statements were not true, did Libby make them deliberately, knowing
they were false? In other words, did he lie on purpose or did he simply make
These, and only these, are the questions the jury would consider. As to Count
Two, for example, the indictment says that Libby offered the following account
to FBI agents in the fall of 2003:
"During a conversation with Tim Russert of NBC News on July 10 or 11, 2003,
Russert asked Libby if Libby was aware that Wilson's wife worked for the CIA.
Libby responded to Russert that he did not know that, and Russert replied that
all the reporters knew it. Libby was surprised by this statement because, while
speaking with Russert, Libby did not recall that he previously had learned about
Wilson's wife's employment from the vice president."
Will there be any question about whether Libby actually made that statement
to FBI agents or that it related to an important matter? Probably not.
The contested issues at trial will surely be questions 3 and 4: Whether this
statement was a true account of his discussion with Russert and, if not, whether
Libby deliberately lied. To determine whether the statement was true, it's necessary
to consider its multiple assertions, which are: (1) In a conversation on July
10 or 11, Russert asked Libby if he was aware that Wilson's wife worked for
the CIA; (2) Libby said he didn't know that; (3) Russert told him that all the
reporters knew it; and (4) Libby was surprised because he did not recall previously
learning about Wilson's wife's employment from the vice president.
Russert says he did not ask Libby whether Wilson's wife worked for the CIA
as Libby claimed, nor did he tell him that "all the reporters knew it." The
government's proof that Libby's statement was a knowing falsehood does not depend
on whether the jury believes Russert over Libby, but it is worth mentioning
that Russert has no easily imaginable reason for lying about this. He was a
reluctant witness, not criminally at risk, and had no motive to try to incriminate
More important, however, even without factoring in additional information,
Russert's account is inherently credible and Libby's is not. Even if Russert
did ask whether Libby knew about Wilson's wife's employment, it is nearly impossible
to believe that Libby could have been "surprised" by the information. After
all, he is, by all accounts, an extremely intelligent and meticulous man who,
as he admits himself in the statement, had learned about this fact from the
vice president, his boss and our second highest official. Moreover, his statement
to the FBI agents can have been no passing slip or mistake, since he elaborated
on it six months later. He then told the grand jury that he was "taken aback"
by Russert's question about Wilson's wife 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."
Libby's eternal-sunshine-of-the-spotless-mind defense is harder yet to believe
given what the prosecutor is apparently prepared to prove: that Libby had been
preoccupied since May 2003 with Wilson's allegations that the administration
knowingly used a false claim about Iraqi attempts to purchase uranium from Niger
to make its case for war; and that, by July 10, when Libby talked with Russert,
he had discussed Wilson's wife's employment not only with the vice president,
but also with at least six other officials including a senior CIA officer, an
undersecretary of state, Libby's CIA briefer, the White House press secretary,
the assistant to the vice president for public affairs, and the counsel to the
office of the vice president. In addition, Libby had already talked about it
twice with reporter Judith Miller.
As it stands now, Libby is on record as saying that he first learned Joseph
Wilson's wife worked for the CIA from the vice president. (That he had to admit,
since he had notes reflecting the conversation.) What he now claims is that
whatever the vice president told him fled his brain and he only learned about
Valerie Plame, as if anew, when Tim Russert spoke with him in July 2003. Even
that encounter, Libby says, failed to jar his memory about previous conversations
with the vice president and seven other people, so that when he talked to Time's
Matt Cooper about it on July 12, he was merely relaying what "other reporters,"
not the vice president, had told him. Indeed, Libby specifically described his
defense to the grand jury on March 24, 2004, in this improbable way: "I told
a couple reporters what other reporters had told us, and I don't see that as
a crime." (This statement was in itself odd, considering that he specifically
told the grand jury he had learned about Wilson's wife only from Tim Russert.)
Interestingly, Libby's formulation of his defense – that the information about
Valerie Wilson's employment was the subject of reporter "chatter" and "gossip"
– is precisely the spin that Bob Woodward had been offering in appearances on
Larry King Live and other talk shows (before he was revealed as the first
reporter to have Plame's information leaked to him). In turn, the Woodward revelation
was preceded on Nov. 15 by a leak from "lawyers close to the defense" to the
New York Times indicating that the Libby defense team planned to seek
testimony from numerous journalists, not just those named in the indictment,
in order to determine what the "media really knew." As Libby's lawyer put it
on Nov. 16, "Hopefully, as more information is obtained from reporters, like
Bob Woodward, the real facts will come out."
Libby's defense team should be careful what it hopes for, because the real
facts don't help Libby at all. Woodward's recent disclosure merely adds another
senior administration official to the already large group who were obviously
working with Libby to distract the public from a truth the administration had
already fessed up to – that the president had made an entirely unsubstantiated
claim about an Iraqi search for uranium from Niger in his State of the Union
Address. It's not that "some other dude did it" or that "some other dude did
it first." The more the real facts about smearing and deception by senior administration
officials come out, the more obvious it is that lots of them did it – and Patrick
Fitzgerald shows no signs of folding up his tent and departing. In the meantime,
the SODDI defense is likely to prove not only unhelpful to Libby but a potential
disaster for the Bush administration, sweeping yet more people into the case.
Elizabeth de la Vega is a former federal prosecutor with more than 20 years'
experience. During her tenure she was a member of the Organized Crime Strike
Force and chief of the San José branch of the U.S. Attorney's Office
for the Northern District of California. Her pieces have appeared in the Nation
magazine, the Los Angeles Times, and regularly at TomDispatch.
Copyright 2005 Elizabeth de la Vega