The Trial of Lewis "Scooter" Libby

By EDWARD LAZARUS

Thursday, Jan. 18, 2007

This week, jury selection started in the perjury and obstruction of justice trial of Scooter Libby, a former top aide to Vice President Dick Cheney.

This case arises out of Special Prosecutor Patrick Fitzgerald's investigation into the identity of the person or persons who leaked the identity of CIA agent Valerie Plame to syndicated columnist Robert Novak, who then outed Plame in print.

Background: The Identity of Novak's Source, and the Context of the Plame Scandal

Libby, it turns out, was not Novak's source. Richard Armitage, at the time a top aide to then-Secretary of State Colin Powell, has that honor.

However, according to the prosecution's theory, Libby was separately leaking Plame's identity, as part of a concerted White House effort to discredit Plame's husband, Joe Wilson.

Wilson, a former Ambassador, had been dispatched by the CIA to Africa to investigate claims that Saddam Hussein had attempted to procure uranium yellowcake in Niger, in order to develop nuclear weapons. In his 2003 State of the Union Address, President Bush had specifically cited the purported overture to buy yellowcake as a key component of his claim that Hussein was seeking (and possessed) weapons of mass destruction (WMD). Based upon his own investigation, however, Wilson had concluded that the whole yellowcake story was a fabrication.

Wilson told the Administration as much, but when it ignored his findings, Wilson started publicly contradicting the Administration's key rationale for invading Iraq - for instance, in a New York Times Op Ed. Given Wilson's diplomatic experience and firsthand knowledge, his charges garnered significant attention.

In response, the Administration started a whispering campaign to undermine Wilson's credibility, including disclosing that Wilson's wife, Valerie Plame, worked for the CIA and had arranged for his Niger assignment.

The Charges Against Lewis "Scooter" Libby and the Cover-Up Without a Crime Conundrum

Libby is now charged with repeatedly lying to a federal grand jury about his role in the smearing of Wilson. In particular, Special Prosecutor Fitzgerald will argue that Libby lied to the grand jury about what he said to various journalists -- in order to portray himself as the innocent recipient of news about Plame's identity that came from news reporters. In fact, Fitzgerald alleges, Libby was actively disseminating that information, coming out of the Administration itself, to new reporters, as part of a propaganda campaign to prop up Administration policy.

Critics of the prosecution claim that Fitzgerald is criminalizing hardball politics, and that it is outrageous to prosecute Libby, given that he was not actually responsible for Plame's CIA status becoming public. Armitage was, and it turns out that his disclosure of Plame's identity was inadvertent. Thus, the whole episode Fitzgerald was originally charged with investigating was ultimately non-criminal in nature.

There is an old adage, "it's not the crime, it's the cover-up" - and lots of folks have gone to jail thanks to prosecutors who took the adage to heart. The Libby case presents a bit of a twist: How far should we go to prosecute the cover-up of a non-crime?

Why Despite the Lack of an Underlying Crime, A Cover-Up Prosecution Makes Sense Here

In answering this question, I don't presume to know whether Libby deliberately lied under oath, as Fitzgerald charges, or whether, as Libby claims, his preoccupation with other pressing matters led him to misremember the events to which he testified. As I've written in an earlier column, I know Libby and like him; I certainly am not calling him a liar here.

But on the question of whether this kind of prosecution makes sense, I think the answer has to be a resounding yes. The truth matters - now more than ever, as even a cursory review of current events makes clear.

We live at a time when trust in government needs to be at a premium. You don't have to be a devotee of "24" - the Fox television show on which, in this week's episode, terrorists exploded a nuclear device in Los Angeles - to appreciate that for the foreseeable future this country is going to face a constant threat of biological, chemical, or nuclear attack by stateless enemies who despise everything this nation symbolizes.

Moreover, you don't have to harbor anti-democratic, authoritarian impulses to believe that an essential part of safeguarding the nation against such an attack will be a discomfiting level of government surveillance and investigation of some portion of the citizenry.

In the last few weeks, the public got a further taste of just what I'm talking about. Previously, we've learned at least something about the government's warrantless wiretapping program. Now we know that the Administration also has programs for opening our mail, and mining data from our private financial records.

There is much to criticize in the way the Administration has handled these programs. With respect to both warrantless wiretapping and mail opening (how much of this goes on, we don't know), the Executive Branch has been proceeding in apparent violation of express Congressional directives.

This is a constitutional no-no that the courts have begun to police and the new Democratic Congress is sure to resist. (Indeed, as I write this, the Attorney General, no doubt responding to the prospect of congressional inquiry, has just announced that the Administration will permit the FISA court to oversee its wiretapping program - just as Congress previously required).

Let's leave aside, for the moment, the very important question of which branch of government has the power to authorize more intrusive anti-terrorism measures, over the long run. The reality is that these measures are likely here to stay - and may well become even more aggressive if terrorists again succeed in launching a significant attack on American soil.

How we feel about this - whether we think the tradeoffs of security or liberty make sense or whether we think we're seriously jeopardizing our status as a free and democratic people - will in some measure rest on how much trust we are willing to place in our government: Do we trust the government when it assures us that these largely secret programs are narrowly tailored, and free of reflexive racism or nativism? Do we trust assurances that this power is being genuinely used to combat terrorism, as opposed to spying on the political enemies of whatever Administration happens to be in power?

Why Government Truth-Telling Matters Now, More Than Ever

This is where government truth-telling plays such a paramount role. We are awash in lies - lies about links between Saddam and al-Qaeda, lies about the progress of the war, lies about whether we torture, lies about who we have detained at Guantanamo and why.

Indeed, even when President Bush purports to embrace some modest degree of fault for the terrible, blood-soaked disaster that is Iraq, we get yet more prevarications - like the myth that the Iraqi government sought the newly proposed "surge" in troops.

Meanwhile, we are awash in strategies to protect the lies. One good example is the litigation shell game that the Administration is playing with Jose Padilla, to avoid judicial repudiation of their detention policies and the exposure of his mistreatment. Another is the intimidation of whistleblowers and journalists. Yet another is the campaign to injure law firms that have the audacity to represent those whom the government labels "terrorists" based on secret evidence of unknown origin.

The Libby trial cannot be divorced from this context. If Fitzgerald is right (and, again, I take no position on this), an enormously influential Administration official took an oath to tell the truth and instead, on several occasions, told some giant whoppers - in order to avoid revealing the lengths to which the White House was willing to go to discredit its critics.

There is an enormous public interest in punishing government officials for this kind of lie. Congress (when it engages in oversight), the courts (when they evaluate or are asked to bless executive action), and even us poor schlubs in the electorate (when we vote) need to able to trust what government officials attest to. Otherwise, checks and balances and democratic accountability become a dangerous joke.

Truth is the oil that makes the engine of democracy go. And we have smoke billowing from the under our hood.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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