By Carol D. Leonnig and Jim VandeHei
Washington Post Staff Writers
Sunday, November 13, 2005
In the opening days of the CIA leak investigation in early October 2003, FBI agents working the case already had in their possession a wealth of valuable evidence. There were White House phone and visitor logs, which clearly documented the administration's contacts with reporters.
And they had something that law enforcement officials would later describe as their "guidebook" for the opening phase of the investigation: the daily, diary-like notes compiled by I. Lewis "Scooter" Libby, then Vice President Cheney's chief of staff, that chronicled crucial events inside the White House in the weeks before the identity of CIA operative Valerie Plame was publicly disclosed.
The investigators had much of this information before they sat down with Libby on Oct. 14, 2003, and first heard from him what prosecutors now allege was a demonstrably false version of what happened. Libby said that, when he told other reporters about the CIA operative and her marriage to Iraq war critic Joseph C. Wilson IV, he believed he had first learned the information from Tim Russert of NBC News and was merely passing along journalistic hearsay. This was an explanation made dubious by Libby's own notes, which showed that he previously had learned about Plame from his boss, Cheney.
In the aftermath of Libby's recent five-count indictment, this curious sequence raises a question of motives that hangs over the investigation: Why would an experienced lawyer and government official such as Libby leave himself so exposed to prosecutor Patrick J. Fitzgerald?
Libby, according to Fitzgerald's indictment, gave a false story to agents and, later, to a grand jury, even though he knew investigators had his notes, and presumably knew that several of his White House colleagues had already provided testimony and documentary evidence that would undercut his own story. And his interviews with the FBI in October and two appearances before the grand jury in March 2004 came at a time when there were increasingly clear signs that some of the reporters with whom Libby discussed Plame could soon be freed to testify -- and provide starkly different and damning accounts to the prosecutor.
To critics, the timing suggests an attempt to obscure Cheney's role, and possibly his legal culpability. The vice president is shown by the indictment to be aware of and interested in Plame and her CIA status long before her cover was blown. Even some White House aides privately wonder whether Libby was seeking to protect Cheney from political embarrassment. One of them noted with resignation, "Obviously, the indictment speaks for itself."
In addition, Cheney also advised Libby on a media strategy to counter Plame's husband, former ambassador Wilson, according to a person familiar with the case.
"This story doesn't end with Scooter Libby's indictment," said Senate Minority Leader Harry M. Reid (D-Nev.), giving voice to widespread Democratic hopes about the outcome of Fitzgerald's case. "A lot more questions need to be answered by the White House about the actions of [Cheney] and his staff."
But to Libby's defenders, the timing of Libby's alleged lies supports his claims of innocence. They say it would be supremely illogical for an intelligent and highly experienced lawyer to mislead the FBI or grand jury if he knew the jurors had evidence that would expose his falsehoods. Libby, they say, is guilty of nothing more than a foggy memory and recollections that differ, however dramatically, from those of several witnesses in the nearly two-year-old investigation.
"People have different memories," said lawyer Victoria Toensing, a Justice Department official in the Reagan administration. She said the fact that Fitzgerald did not indict on the crime he set out to investigate -- illegal disclosure of classified evidence -- supports the conclusion that no such crime took place. Fitzgerald has said he could not make such a determination because his inquiry was obstructed by Libby's deceptions.
Even if Fitzgerald shows beyond a reasonable doubt that Libby's version of events is wrong, he also must prove the former Cheney aide lied on purpose. But many lawyers and several White House aides said the case against Libby appears strong -- and has the potential to embarrass other administration officials if it goes to trial.
The case was prompted by Plame's name being publicized by columnist Robert D. Novak on July 14, 2003. Eight days earlier, Wilson had publicly criticized the Bush administration for allegedly twisting intelligence to justify the Iraq war. Wilson and his allies claimed Bush officials publicly identified Plame as payback for his dissent.
Libby is the only White House official charged in the case. Karl Rove, the president's deputy chief of staff and top political adviser, remains under investigation for providing misleading statements about his role in the leaking of Plame's identity, and people close to the case said he could still be charged. A final decision is expected soon on Rove's fate.
William Jeffress Jr., one of Libby's lawyers, declined to comment on the case. So did Fitzgerald's spokesman, Randall Samborn.
But the emerging case against Libby is bringing more about Fitzgerald's investigation into public view. In October 2003, agents interviewed several administration officials, who described conversations they had with Libby about Plame in June and early July of 2003. Cumulatively during Fitzgerald's probe, four officials said they mentioned Plame to Libby, investigators found; three others said Libby mentioned her to them.
This testimony makes the story Libby offered during his first FBI interview look suspicious. He said he believed that he first learned about Plame on July 10 or July 11, 2003, in a conversation with Russert. Libby said he was surprised to learn of Plame's connection to Wilson. To Fitzgerald's team, Libby did not seek to deny that he had learned about the Plame link from Cheney -- as revealed by Libby's own notes -- but simply said it had slipped his mind that the vice president was an earlier source of the information than Russert, lawyers familiar with the case said.
Even early in the investigation, two key people were publicly known at the time to have been interviewed by the FBI: Ari Fleischer, then-White House press secretary, and Catherine Martin, a Cheney press aide. Martin had learned about Plame's employment at the CIA from another senior government official, the indictment says, and told Libby sometime in late June or the first week of July. Fleischer reportedly told investigators that, at a lunch on Monday, July 7, Libby told him that Wilson's wife worked at the CIA and confided that the information was not widely known.
Fitzgerald, in announcing the indictment two weeks ago, called attention to this conversation with Fleischer to show how improbable he regarded Libby's account: "What's important about that is that Mr. Libby . . . was telling Mr. Fleischer something on Monday that he claims to have learned on Thursday."
Libby's defense must also reckon with his own notes. Lawyers familiar with the case said in general his notes do not recount the details of conversations and do not specifically contradict his account to investigators. Usually the notes explain with whom he met each day. One remarkable exception was when he chronicled a meeting with his boss on or about June 12, in which Libby wrote that Cheney told him that he learned from the CIA that Wilson's wife worked at the agency.
But when Libby was called to answer Fitzgerald's questions under oath before the grand jury on March 5 and again on March 24, 2004, he stuck to the story he had given in October. He repeated that he believed he had learned the information from a reporter and had forgotten Cheney had told him about Plame. He explained that he had not thought the material was classified because reporters knew it. But Fitzgerald pressed Libby -- and not so subtly raised the specter of a coverup. "And let me ask you this directly," Fitzgerald said. "Did the fact that you knew that the law could . . . turn on where you learned the information from affect your account for the FBI -- when you told them that you were telling reporters Wilson's wife worked at the CIA but your source was a reporter rather than the vice president?" Libby denied it: "No, it's a fact. It was a fact, that's what I told the reporters."
After lengthy court battles over journalists' duty to testify in the case -- including several contempt citations by a trial court judge, appeals to the Supreme Court and one reporter's jailing -- Fitzgerald got all the reporters' testimony that he had sought. Russert, Time magazine reporter Matthew Cooper and Judith Miller of the New York Times all testified about their conversations with Libby. All contradicted Libby.