The Corner

For Mark — Count Five

I know Mark has also looked closely at the indictment, so I wonder what he will think of this.

I regard Count Five as a confusing count. (The same confusion arises elsewhere in the indictment, but it crystallizes, for me at any rate, in Count Five.)

Throughout the grand jury testimony excerpted in Count Five, the powerful impression one is left with is that Libby intentionally misled the grand jury about the state of his knowledge regarding Plame’s employment by the CIA – i.e., what he knew and when he knew it. It’s alleged Libby explained that he told the reporters he had gotten his information about Plame from other reporters. More importantly, Libby testified that this was not because he was misremembering how he learned the information, and not because he was trying to avoid discussing what he knew from government sources. Rather, Libby flatly asserted that he said this to reporters because “it was a fact” that his source was a reporter (assertedly, Tim Russert).

So you’d figure the government’s theory of perjury in Count Five must be that Scooter was misleading the grand jury about the state of his information (i.e., that the prosecution is saying his real sources were the numerous government officials with whom Libby had spoken about Plame long before he spoke with Russert).

Yet, that’s not what Count Five alleges. When it finally gets to explaining the perrjury charge, it contends (in paragraph 3 on page 22) that Libby’s statements are perjurious only in that they falsely report the substance of Libby’s single conversation with one particular reporter, namely Matt Cooper. The count does not allege that Libby was tyring to mislead the grand jury about his general state of information.

I find that odd. It seems to me that this reduces Count Five to the old “he said / she said”: i.e., whose story do you believe – Cooper’s or Libby’s? It seems to cancel out the whole point that Count Five seemed to be building to: namely, that Libby was not being straight with the grand jury about what he knew and when, wholly apart from whatever he reported about his conversation with Cooper.

As I said, this is something of a recurrent theme. There are times — not all the time, but sometimes — when the indictment makes the case appear to be much more about who is relating conversations more accurately – Cooper and Russert, or Libby – than it is about a general scheme by Libby to obstruct justice. That sure places a lot of the government’s chips on the credibility of the reporters’ recollection of a few key conversations. I would have thought the crucial thing would be whether Libby was generally honest with the investigation about his knowledge of Plame’s classified status.

If I were defense counsel, I’d be very curious to read the rest of Libby’s grand jury testimony and interview notes (beyond the snippets set forth in the indictment). I’d want to find out what exactly he said about whether he knew Plame’s status was classified, and if there are statements that suggest he was more equivocal about whether his sources were reporters rather than government officials.

I’m not suggesting the government’s case looks weak to me. It doesn’t. BUT, if there is stuff in Libby’s other statements for the defense to work with, and the case really does get down to the whether Libby or Russert/Cooper/Miller are more accurately remembering a few isolated conversations, then this may be a closer case than it seems on first blush.

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