Outlook: Libby Trial Participants Indicted by Association

Victoria Toensing
Lawyer Specializing in White-Collar Criminal Defense
Tuesday, February 20, 2007; 1:00 PM

Victoria Toensing, a D.C. lawyer specializing in white-collar criminal defense, was online Tuesday, Feb. 20, at 1 p.m. ET to talk about her Sunday Outlook article, which hands out her numerous indictments for the guilty in the Libby trial: pretty much everyone involved.

If You're Going to Charge Scooter, Then What About These Guys? ( Post, Feb. 11)

Toensing was an assistant deputy attorney general in the Reagan administration and now helps run D.C. law firm DiGenova & Toensing.

The transcript follows.


Victoria Toensing: Greetings from the courthouse. I've been sitting and watching the Libby closing arguments.


Washington: You were sitting at the defense lawyers' table at this morning's session of the trial, were you not? Does that mean you are part of the defense team? Shouldn't that have been mentioned with your Outlook article?

Victoria Toensing: I'm not a part of the defense team -- there was an overflow, we were in the overflow room and lawyers can sit at that table. There were other lawyers there who were not part of the defense team, like Jake Stein.


Virginia Beach, Va.: Interesting article ... one thing struck me though regarding your point that someone should point out that Wilson was using the media to make his assertions, just as the administration was by "planting" stories to make their points. You don't think that someone writing an op-ed with their name attached is just a little different from administration officials anonymously leaking to further their aims?

Victoria Toensing: He also leaked a series of stories prior to that op-ed, and did not have his name attached to them.


New York: Ms. Toensing, if no government official is willing to discuss Plame's job or covert/classified status how can you state with certainty that she wasn't covert? Has any government official told you what her status was? What position would you take if you were shown, by someone you trust, that she was covert?

Victoria Toensing: Well, if I had evidence that she was covert I certainly would respect that, but she did not have a foreign assignment within five years of publication. Wilson stated that in his book -- he states that they returned to the United States sometime in 1997, so six years. The definition of "covert agent," a person whose identity is to be protected, is someone who has been overseas in the past five years. The five years were added to protect sources the person would have worked with.


Alexandria, Va.: Congratulations on excellent journalism and law. If defendant were acquitted, could he seek redress through through civil litigation? Prospects for success in a civil suit?

Victoria Toensing: He cannot. Prosecutors have immunity from such litigation. It would be a very rare situation that a person would be able to sue.


Milwaukee: Ms. Toensing, I was always so impressed when you and your husband explained the importance of holding defendant's accountable during President Clinton's impeachment. Imagine my disappointment when I read this from your: "Trial in Error."

"...There's a reason why responsible prosecutors don't bring perjury cases on mere 'he said, he said' evidence. Without an underlying crime or tangible evidence of obstruction (think Martha Stewart trying to destroy phone logs), the trial becomes a mishmash of faulty memories in which witnesses can seem as guilty as the defendant..."

President Clinton's lying about consensual sex does not begin to compare to lying the U.S. into war and then trying to cover it up by outing a CIA agent and Brewster Jennings. Bob Novak and the Chicago Sun Times are not part of the declassification process. The "underlying crime," as I think you are well aware, is the Intelligence Identities Protection Act. In order to prosecute under the IIPA, Fitzgerald must prove intent. That's why the perjury and instruction trial comes first. Apparently, you, however, only want to prosecute Democrats for perjury.

Victoria Toensing: Where do I begin ... the tangible evidence in the Clinton perjury was a blue dress with a stain. In the Libby charge, there is no evidence outside of witnesses' testimony differing from Scooter Libby's testimony. It's pure he said/she said.


Boston, Mass.: Do you believe Brewster Jennings remains a good cover for American intelligence efforts around the world? Do you think it might be in America's best interests to protect our cover operations for our intelligence agents? Have you ever put your country above your party?

Victoria Toensing: I was chief counsel of the Senate Intelligence Committee under Barry Goldwater. I believe strongly that we need a vibrant CIA and intelligence methods. However, we should not prosecute somebody when no law has been violated. Plame was not covert.


Prescott, Ariz.: It has been said that you are a well-known attorney in the D.C. area. One of the big themes in this case is how the personal and professional entwinement between media and government had tainted much of the Iraq war reporting at the time this story started and continued as it evolved. That said, as a well-known attorney as well as a media pundit, do you have any personal or professional ties to people involved in this case that we should know about in order to assess the motives of your opinions and judgments on this case?

Victoria Toensing: Without question, I know people on the defense team. Most white-collar crime lawyers know each other in Washington, so that's not unusual. Actually both of Libby's lawyers are Democrats.

But let me tell you why I became quite interested in this case. About the time that this matter was evolving my husband and I were threatened with going to jail by a U.S. Attorney who abused his powers. He threatened to put us in jail if we did not testify against our own clients -- he saw that issue as the same reporters' privilege. And by the way, we won -- but it took more than a year and many sleepless nights.


Colorado Springs, Colo.: Could you please elaborate on the different treatment of media figures by Fitzgerald's office. That is, why were some afforded the opportunity of counsel (e.g., Russert) while others were not (e.g., Novak)? In your opinion, did Fitzgerald present sufficient evidence to prove the required elements of perjury?

Victoria Toensing: I have no idea why Fitzgerald treated reporters differently. As for the second question -- perjury requires materiality; in other words, two people differing is not enough, and it can't be a mistake or a bad recollection. I think there's a serious legal problem in fulfilling that requirement.


Ballston, Va.: Your indictment of the media is well placed and actually didn't go far enough. When it appeared possible that Rove might be indicted, the press could barely contain their zeal, and this drove the story for months. When Fitzgerald later said Rove wouldn't be indicted, the smiles turned into thuds. I remember poor Charlie Gibson looked like his cat had just died when he was forced to deliver this news. To what degree do you think this story has been propelled into the stratosphere as a result of a "blood-in-the-water" eagerness on the part of the press? It always seemed to me that the actual substance of the story didn't justify the press hysteria.

Victoria Toensing: First, The Post permitted me around 2,000 words and I think we exceeded it. So I did not get in every point I would have liked to have made. The media always loves a good story -- my fault with the media was that journalists were misstating the law.


Peaks Island, Maine: If the CIA did not consider Plame a covert employee, why did they refer the disclosure to the FBI? Do you believe that the CIA, FBI, Department of Justice and Fitzgerald all are in error in stating that Plame was a covert employee of the CIA?

Victoria Toensing: My point in the piece was that the CIA did not send over a request for investigation based on the requirements of the covert law being broken -- it sent a boilerplate classified information link form. It's not against the law to reveal the identity of someone whose position is classified at the agency. That's why we wrote the covert law in 1982. I don't know that she was even classified.


Minneapolis: You are old pals with Barbara Comstock, who is spearheading Libby's defense fund and the public relations effort on his behalf; for instance, you've drawn attention to the fact that in 2001 the two of you did the book tour together upon the posthumous publication of a book by Barbara Olson. Did you communicate at all with Comstock or others working on behalf of Libby about your Washington Post piece before it was published? If so, could you detail those communications?

Victoria Toensing: I did not talk to Barbara Comstock about this op-ed. I've been writing op-eds on this matter for two years, prior to Comstock or anybody being hired by Scooter Libby. But I am friends with her socially, and I'm not going to stop seeing her socially for three or four months.


Montclair, N.J.: Do you hope the jurors read your column?

Victoria Toensing: No, I would hope they would follow their instructions not to do so. That's the way our justice system works.


Louisville, Ky.: Thanks for doing these exciting chats. My question involves the administration's answering of important questions about the Libby trial. Let's hypothesize that Libby is convicted. That will certainly be appealed. The appeal could take years. Would that lead to the White House statements of "we can't comment because the case is on appeal"? What are your thoughts about when, if ever, we will get some answers to what Fitzgerald discovered?

Victoria Toensing: I doubt if anyone will talk about it until the process is over -- that's the usual stance during the course of litigation. The public has all the evidence that was presented at trial -- it shows the entire investigation, and what it shows is a whole lot of memories that conflict with each other. First of all, the president didn't talk to anybody. If somebody called you up and said, "did you hear X about your neighbor," and you had heard it from a third party, and who said "I heard that too," would you think you'd leaked the information?


Washington: To be considered covert does one actually have to live outside the U.S. in the previous five years or would trips outside the U.S. on CIA business constitute "serving" and therefore make the person's status covert?

Victoria Toensing: When we first drafted the legislation we covered people on foreign assignments only (meaning living abroad). The reasons we added the five years: number one, covert officers get rotated back through the United States from time to time, usually for two to three years. Second, to protect former sources, even if someone retired we wanted a reasonable time to protect anyone with whom they had had contact abroad. We all agreed that five years was sufficient time, and that's what was put into the final bill.

A trip abroad does not make a person covert. "Covert" only is applied to people specifically assigned to live abroad.


Minneapolis: You seem to have touched a nerve with those on the left, the vitriol and personal attacks on you in the comments section were intense! Do you read those comments, and what is their impact on you?

Victoria Toensing: Look, I'm a lawyer, so I'm used to an adversarial situation. They just didn't bother me. I only get upset when people do not get their facts or the law correct.


Victoria Toensing: I'm delighted that so many people took the time to read the article and agreed with it or disagreed with it.


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