A Tough Case? No Lie

That's not to say that the government should never bring a perjury case or that the Libby indictment is right or wrong. My point is that the burden of proving good faith doesn't rest with Libby. The government must prove beyond a reasonable doubt that his false statements were made knowingly and willfully. Without a "smoking gun" e-mail, or a witness who can testify that Libby confided an intent to mislead investigators, that burden will weigh heavily on the prosecution.

The indictment is devoid of any suggestion that Fitzgerald possesses direct evidence, such as a cooperating co-conspirator, of Libby's willful intent to lie. Rather, the indictment focuses on circumstantial evidence, including references to numerous occasions when Libby asked for, received, and discussed with administration officials and reporters information about Wilson's wife.

Fitzgerald's challenge will be to weave together all his pieces of circumstantial evidence into what I call an "Oh, come on!" argument. He must be able to look directly at the jury and, with a delicate mixture of disgust and bemusement, declare: "Oh, come on! Mr. Libby was all over this thing for weeks. Common sense tells you he didn't forget; he lied."

It may work, but it certainly isn't easy. And Fitzgerald's task is made more difficult by the question of motive. In the absence of direct evidence, motive becomes the glue that binds the circumstantial evidence together. In this case, the common perception is that Libby lied to protect his boss, the vice president.

But the indictment itself undercuts that argument. The story would make sense if Libby had lied to the FBI and the grand jury about the source of his information concerning Wilson's wife to cover up the fact that he heard that information earlier from the vice president. The indictment alleges, however, that at the same time Libby was supposedly lying to the FBI about his conversations with Russert and Cooper, he told the agents "that he had previously learned about Wilson's wife's employment from the Vice President."

Without more, the "Oh, come on!" argument is hardly a slam dunk for the prosecution. Indeed, that is why prosecutors bring so few of these cases, even when the alleged lies are outrageous and high profile. For example, in April 1994, executives from America's major tobacco companies testified under oath before Congress that nicotine was not addictive and that no one had proven that smoking caused cancer.

No one in America believed them. A Justice Department task force labored for years to see if it could prove that the tobacco executives had lied. An abundance of documents demonstrated the addictive and carcinogenic nature of tobacco. But because the executives expressed what they insisted was their personal belief, the Justice Department never brought a perjury indictment. If "Oh, come on!" wouldn't work for a case like that, in which the underlying facts seem so simple, then it's easy to see why in this case -- with all its convoluted machinations -- it will be so hard for that argument to succeed.

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.

Author's e-mail:

MLevy@McKeeNelson.com

Michael Levy heads the white-collar defense practice at the law firm of McKee Nelson in Washington. He served as a federal prosecutor in the District of Columbia from 1995 to 1999.