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An Unnecessary Investigation
Scooter Libby is on trial because others were unwilling to say that the investigation was unnecessary.


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I. Lewis “Scooter” Libby’s trial opened Tuesday in Washington, D.C., with sensational and dramatically differing accounts by prosecution and defense lawyers. At issue is what actually happened in the White House as the Bush administration wrestled with bitterly contested intelligence about Saddam Hussein’s intentions and capabilities, and ultimately whether Vice President Cheney’s former chief-of-staff lied about his role to federal investigators. The whole sorry business is rooted in the so-called Valerie Plame affair, and the case represents a prosecution that should never have been brought.

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To review the bidding: In July, 2003, retired State Department official Joseph C. Wilson IV, made a series of allegations in a New York Times op-ed about his role in investigating Saddam Hussein’s efforts to obtain nuclear materials in Africa. Specifically, Wilson implied that he was sent, at Vice President Cheney’s request, on a mission to Niger in 2002 to check out claims that Iraqi officials had once tried to buy uranium ore (“yellow cake”) in that country. Wilson also opined that information gathered during his trip had effectively rebutted these allegations, that this intelligence was duly reported to the vice president’s office, and that, despite all of this, the “yellow cake” information was included in the Bush 2003 State of the Union speech as an important component of the administration’s case for the regime change in Baghdad.

Since that time a number of Wilson’s claims have been discredited, and his assertions appear to have been driven by a combination of political partisanship and a fairly insatiable appetite for publicity. Rather than being tapped by Cheney’s office for this assignment, Wilson’s name was put forward by his wife Valerie, a CIA analyst working at the agency’s headquarters in Langley, Virginia. Wilson carried out a cursory inquiry into the “yellow cake” purchase matter during his Niger trip — his own New York Times op-ed described little more than a series of café conversations with various unnamed current and former Niger officials as well as “people associated with the country’s uranium business” — and a bipartisan Senate Intelligence Committee Report later concluded that his findings, far from rebutting the allegation that Saddam Hussein’s agents had sought nuclear materials in Africa, actually provided some modest support for the claim. Things could have — and should have — rested there. Unfortunately, this was not meant to be.

The story got a new lease on life a week or so after Wilson’s op-ed in a Washington Post column by Robert Novak. Novak wrote that Wilson’s wife worked for the CIA and that — according to “two senior administration officials” — she had actually been the one to promote her husband for the Niger trip. At this point, Bush-administration critics pounced, claiming that Novak’s piece revealed a White House effort to punish Wilson by “outing” his supposedly secret-agent wife, and even implying that she was guilty of cronyism by choosing her own husband for an intelligence mission for which he was ill-qualified. Within short order, the mainstream media, which normally relishes leaks of government information, began to clamor for an investigation, piously lamenting both the damage to national security and the destruction of Plame’s promising career. Story upon story appeared claiming that the leak violated the Intelligence Identities Protection Act (“IIPA”) — a narrow federal statute designed to criminalize the public identification of covert U.S. agents operating overseas.

Calls also came immediately for the appointment of a special prosecutor to investigate this alleged leak by senior White House officials. Faced with this barrage of negative publicity, the Administration gave in and appointed Chicago-based U.S. Attorney Patrick Fitzgerald as the “special counsel.” The media continued to cover the investigation aggressively, particularly when it became known that two senior White House officials — the President’s key political adviser, Karl Rove, and the vice president’s chief-of-staff, “Scooter” Libby — were the primary targets.

Ironically, just as the claims featured in the first round of this story — Joe Wilson’s allegations about the vice president and his trip to Niger — were crumbling — so did most of the media’s assertions about Fitzgerald’s initial investigation. First and foremost, based on information in Wilson’s book, among other places, it became abundantly clear that Valerie Plame was not a covert agent, but an official based in Langley whose identity was well-known around town. She was living openly under her own name, and was identified as Wilson’s wife in a Who’s Who entry. In other words, Plame was not a covert agent, and she had not served overseas for at least five years. As a result, the IIPA was never even an issue.

This critical point must also have been known to both Fitzgerald and senior Justice Department officials since, only four weeks after his appointment, Fitzgerald returned to the Department for a broader grant of authority, making clear that his investigation was not limited to the IIPA and that he could pursue any violation of federal law, including perjury and obstruction of justice. At that point, it was off to the races. Needless to say, nobody has ever been charged with an IIPA violation in connection with the Robert Novak story. Indeed, it has since been revealed that Libby was not one of Novak’s sources. Novak had, in fact, been told of Plame’s status by Secretary of State Colin Powell’s deputy, Richard Armitage — who has been described as a notorious Washington gossip. Moreover, since both Armitage and Powell are well-known Iraq-war skeptics, to argue that his disclosure to Novak could have been a part of any campaign to punish Joe Wilson or defend the administration’s justification is inherently implausible. Significantly, all of these facts were known to the Justice Department long before Fitzgerald got either of his mandates.

Presented with these facts, the right thing for the Department of Justice to do would have been not to appoint any special counsel and close down the investigation into this matter by publicly announcing that no laws were broken. Since this apparently would have required more political fortitude than then available in the attorney general’s office, the buck was passed to Fitzgerald — who refused to quit until he found a crime to prosecute. That, unfortunately, is the way of special prosecutors. With a misguided zeal reminiscent of an Inspector Javier, he relentlessly investigated and reinvestigated the matter, until he ended up with an indictment of Libby, allegedly for engaging in perjury and obstruction of justice, all of which transpired after the investigation into the Valerie Plame leak had commenced.

The key factual basis of these charges appears to be that Libby told government agents, and the Grand Jury, that he had learned of Valerie Plame’s status from NBC’s Tim Russert, a fact strenuously denied by Russert. A related allegation is that Libby falsely told investigators that he had informed Time’s Matthew Cooper and the New York Times’ Judith Miller that he had heard of Valerie Plame’s status from other journalists. In a story already rich with irony, here is another ironic twist — we now know, from none other than Bob Woodward of Watergate fame, that Woodward learned of Valerie Plame’s identity in June of 2003 from a government official other than Libby, and that he (Woodward) may have mentioned her identity to Libby. In other words, Libby — who talked with numerous reporters daily about Iraq — may well have misremembered who first told him about Plame, confusing a prominent middle-aged television journalist for a prominent middle-aged newspaperman.

This is thin gruel for a major federal prosecution, and Fitzgerald surely knows it. Even more fundamentally, as Libby’s lawyers have repeatedly pointed out, with no possibility of an IIPA violation readily apparent to Libby (not to mention the rest of the world) from the very beginning of the investigation, he had no incentives to dissemble. Unlike Watergate, there was simply no crime to cover-up. And still, Fitzgerald did not call it quits. Now justice will be up to the jury.

However, there are a number of important implications beyond the tattered factual canvas of this story and none of them are good. First, the First Amendment took a beating as the Fitzgerald investigation progressed. A number of the key protagonists — Tim Russert, Matthew Cooper, and Judith Miller — supported by their respective newspapers and broadcasting entities, fought Fitzgerald’s demands that they reveal their sources, and they lost. As a result, prosecutors, both federal and state, have been emboldened to press reporters for all sorts of information and confidential sources are now on notice that a journalist’s ability to protect their identities has been greatly weakened.

Second, we have a spectacle of senior government officials behaving badly and getting lionized for it, setting in the process additional incentives for similar bad behavior in the future. Neither then Attorney General John Ashcroft, nor his top deputies, had the political and personal courage to bring the Plame investigation to a close. Hence, the ugly system of special counsels and investigations run amok lives on. Meanwhile, one of the great unanswered questions is why CIA officials referred the matter to Justice in the first instance, since they clearly knew that Plame was not a covert agent protected by the IIPA. One does not have to be a liberal critic of intelligence agencies to at least wonder whether — in light of a series of CIA leaks during the 2004 presidential election cycle — agency officials were trying to use the Justice Department in a bit of bureaucratic warfare against the White House.

Third, the prosecutor and defense lawyers are now reframing the whole debate in a way that helps their legal interests. Regardless of which narrative the jury ultimately accepts, there will be further damage to the government’s overall credibility at a time that the United States is still very much at war in Iraq and elsewhere. This situation underscores how costly the criminalization of what are, at the bottom, bureaucratic and policy disputes can be and how these problems are magnified if handled by a special prosecutor, who, by definition, is ill-equipped to look at the political and bureaucratic equities involved.

And, finally, there is the palpable tragedy of a man forced from his post in the Vice President’s office, and being dragged through years and years of personal and professional hell, because he could not recall who first told him that Joe Wilson’s wife worked for the CIA. The injustice to Libby is particularly noteworthy when compared with the lenient treatment accorded to President Clinton’s former national-security adviser, Sandy Berger. Berger stole highly classified documents from the National Archives, evidently in an effort to mislead the 9/11 Commission investigation regarding the Clinton Administration’s failure to confront al Qaeda. He was not the subject of a special-counsel extravaganza, and ultimately plead to a slap on the wrist — a $50,000 fine and community service. He may well return in the next Clinton Administration, if there is one. For anyone who does not see injustice here, we offer a quote from Dr. Johnson: “if he does really think that there is no distinction between virtue and vice, why, sire, when he leaves our houses let us count our spoons” — and documents.

David B. Rivkin Jr & Lee A. Casey are partners in the Washington, D.C., office of Baker & Hostetler LLP. They served in the Justice Department during the Reagan and Bush Sr. administrations.



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