By R. Jeffrey Smith
Washington Post Staff Writer
Wednesday, March 7, 2007
In a small room on the third floor of the D.C. federal courthouse in late March 2004, Special Counsel Patrick J. Fitzgerald stood before I. Lewis "Scooter" Libby and asked him three separate times whether his boss, Vice President Cheney, had discussed telling reporters that Valerie Plame worked for the CIA.
The question was not insignificant for Fitzgerald, who saw his mission as revealing the full chain of events behind the security breach involving Plame's work as an undercover CIA officer. Fitzgerald was unconvinced by Libby's response that even though he "may have" had such a conversation with Cheney, it probably occurred after Plame's identity had been revealed in a newspaper column.
Fitzgerald would respond with great frustration in his summation at Libby's trial almost three years later, saying that Libby's lies had effectively prevented him from learning about all of Cheney's actions in the administration's campaign to undermine Plame's husband, Joseph C. Wilson IV, a critic of the U.S. invasion of Iraq.
More than he had previously, Fitzgerald made clear in those remarks that his search for the truth about Cheney was a key ambition in his probe and that his inability to get it was a key provocation for Libby's indictment. Although Cheney was the target, Fitzgerald's investigation could not reach him because of Libby's duplicity.
Fitzgerald's summation explained, in part, why he brought charges based on imperfect evidence against Libby, even though Libby was not a source for Robert D. Novak, the author of the July 14, 2003, newspaper column that outed Plame as a CIA employee.
The jury's verdict addresses Fitzgerald's first conclusion -- that Libby lied deliberately and did not misspeak from faulty memory. But the trial showed that the prosecutor finished his investigation with his mind made up that Libby's account was meant to hide his own involvement as well as to conceal the potential involvement of the vice president.
At the trial's close, Fitzgerald expressed his concern in unusually blunt terms. After Libby's lawyers complained that he was trying to put a "cloud" over Cheney without evidence to back it up, Fitzgerald told the jury on Feb. 20, "We'll talk straight."
There was, he said, "a cloud over what the vice president did" during the period before Novak's column was published, and it was created by testimony about Cheney directing Libby and others at the White House to disseminate information on Wilson and Wilson's criticisms.
"We didn't put that cloud there. That cloud remains because the defendant obstructed justice and lied about what happened," Fitzgerald added.
The notion that Libby was merely a courtroom stand-in for Cheney infuriated Libby's lawyers, who sought in their courtroom statement to defend both men. "Nobody in the office of the vice president is concerned about" Plame, Libby attorney William Jeffress Jr. said in his closing argument. "She never was part of the story they were trying to put out."
Fitzgerald disagreed. He twice used a baseball metaphor to describe what he believes went on in the vice president's office -- at his announcement of Libby's indictment on Oct. 28, 2005, and again during his trial summation. Suppose, Fitzgerald said, you were looking into whether a pitcher had purposely beaned a batter, and if so, why.
"As you sit back, you want to learn why was this information going out. Why were people taking this information about Valerie Wilson and giving it to reporters?" Fitzgerald asked at the 2005 news conference. "What we have when someone charges obstruction of justice is the umpire gets sand thrown in his eyes. He's trying to figure out what happened, and somebody blocked their view."
Randall D. Eliason, a former chief prosecutor of public corruption and fraud in the U.S. attorney's office in Washington, said Fitzgerald "would not have been doing his job" if he had not brought the charges. If "witnesses believe they can lie to the FBI and lie in the grand jury and there will be no consequences, then it becomes impossible to investigate any criminal activity, from terrorism to shoplifting."
Witnesses in the case never presented evidence of illegal actions by Cheney, nor did they ever pin direct responsibility for the leak on him. They presented what some lawyers considered an imperfect picture of Libby's duplicity in pretrial and trial testimony marked by bouts of forgetfulness and hazy recollections of events.
Former New York Times reporter Judith Miller, former CIA official Robert Grenier, NBC News Washington bureau chief Tim Russert and former White House press secretary Ari Fleischer each gave accounts of their interactions with Libby or other journalists that conflicted with their earlier statements or with the recollections of others besides Libby.
"Almost every witness would misspeak on direct [questioning] or left something out of grand jury testimony or got a date wrong," said Ty Cobb, a former assistant U.S. attorney who heads the white-collar criminal defense group at Hogan & Hartson. He expressed skepticism that the case against Libby should have been presented to a jury.
But Fitzgerald's decision to do so may have stemmed from his pique at his inability to get to the truth about Cheney, who appeared in testimony and in White House documents disclosed to the jury as the man behind the screen, pulling the switches and levers in what one of Fitzgerald's aides described as an orchestrated "political public relations" campaign to undermine Wilson.
Cheney, Fitzgerald suggested, had both motive and opportunity to run the show: He was deeply angered, even preoccupied, by Wilson's claim that Cheney deliberately exaggerated the threat posed by Iraq's nuclear research. He was the first to tell Libby about Plame's job, and he scrawled a disparaging note about Plame's alleged responsibility for a CIA-sponsored "junket" to Niger that her husband took.
And finally, Cheney was convinced that if "everything" about the Wilson trip was disclosed to reporters, Wilson's credibility would be in tatters.
Libby's grand jury testimony addressed each point. "I'm not sure I would use the word 'ticked off,' but [Cheney] was frustrated" by the public impact of Wilson's critique, a topic that Cheney raised in multiple conversations, Libby said. Cheney directed Libby to interrogate Grenier on the reasons for the Wilson trip; he repeatedly "made comments" about Wilson's wife and mused about her role in arranging a junket; he dictated a set of talking points for journalists that opened with what Fitzgerald portrayed as a proverbial leading question about "who authorized Joe Wilson's trip to Niger."
"The question of who sent Wilson is important," Fitzgerald said. "It is a number one question on the vice president's mind."
Fitzgerald's presentation also called attention to two occasions in which Libby said Cheney instructed him to deal directly with reporters and spelled out what to say -- his meeting on July 8, 2003, with Miller and his telephone conversation four days later with Time magazine correspondent Matt Cooper. In both, Libby mentioned Plame's employment at the CIA.
Fitzgerald's concerns were heightened by Libby's reply to a question about when he and Cheney first discussed Plame's CIA employment. "I think it was after the [July 6] Wilson column," which accused the White House of lying about the justification for the Iraq war, Libby told the grand jury.
But then he added: "I'm sorry, I don't mean the Wilson column, I'm sorry. I misspoke. I think, I think it was after the [July 14] Novak column," which disclosed Plame's name. He and Cheney had discussed other Wilson-related matters in the intervening period, Libby said, but not "that part about the wife."
Fitzgerald, in his summation, said he found this explanation incredible. He said Cheney referred to Plame in a note he inscribed on Wilson's column and noted that over the next two days, Libby raised the issue of her CIA employment with three others: Miller, Fleischer and Cheney aide David Addington. "If you think that's a coincidence, well, that makes no sense," Fitzgerald said.
He also called the jury's attention to the fact that Libby disclosed to Cheney his statement to the FBI that he learned about Plame's employment from Russert, which Russert later disputed. "The only person he told was the vice president. Think about that," Fitzgerald said.
Libby's false account of events, he added, was meant to serve as a "blocker . . . to cut off all those conversations with people, including the vice president." There is, Fitzgerald said, "a cloud over the White House as to what happened. Don't you think the FBI, the grand jury, the American people are entitled to a straight answer?"
Fitzgerald said at a news conference yesterday that Libby, "by lying and obstructing justice, harmed the system. And that was something serious. And that's the point we made to the jury, and obviously the jury agreed."