Cohen: Why Scooter Shouldn't Do Time

Richard Cohen
Washington Post Columnist
Wednesday, June 20, 2007; 12:00 PM

Washington Post columnist Richard Cohen was online to discuss how an overblown case born of a political vendetta netted I. Lewis "Scooter" Libby 30 months in jail, and to explain his stance that Libby should be pardoned.

The Runaway Train That Hit Scooter Libby (Post, June 19)

The transcript follows.


Richard Cohen: Hi, glad to be available.


Alexandria, Va.: Dear Sir: As I see it, the investigation was started by the CIA (hardly a hotbed of Michael Moore liberalism) who asked the Department of Justice to look into the leak. Ashcroft (not exactly a Naderite) recused himself and put Fitzgerald (a Republican-appointed DA) in charge of the investigation. Libby was caught lying to a grand jury and found guilty after having the finest lawyers in the country (paid for by a Republican cadre of well-wishers) and was given a tough sentence by a Republican-appointed judge. In short, not a Democrat was involved in this -- and yet you have the temerity to suggest it was political. I just do not get it. Can you please explain? Your articles do not, so please don't ask me to go back and read them.

Richard Cohen: Well, if you'll excuse my temerity, the genesis of the investigation had to do with the naming of Valerie Plame in Robert Novak's column. But that didn't come from Scooter Libby, and the pressure for the appointment of a special counsel came from a whole lot of liberals who didn't trust the administration to investigate itself. The thinking was that this was an attempt by a pro-war member of the administration to tarnish a war critic who argued against the war in The New York Times. Libby was convicted of lying to a grand jury, and I don't excuse that, and I don't excuse the war either, but the fact is that he didn't commit the original crime. It's a hefty sentence, the end of a career, and there's no underlying crime -- as there wasn't with Bill Clinton. I don't like prosecutors going after someone who didn't commit the original crime. They have too much power; they can go after almost anybody.


Centreville, Va.: Mr. Cohen -- in December 1998 you wrote in regard to Clinton's perjury: "The condemned man is guilty. He lied in the Paula Jones deposition and he lied to a federal grand jury and, most gallingly if not grievously, he lied to the American people. A hanging of some sort is in order." Given that he was convicted of lying to a grand jury, the American people's representatives as it were, what makes his case so different such that you think Libby should be spared "a hanging of some sort." You must admit you are not being consistent here.

Richard Cohen: No, I admit no such thing. I said in the column that I don't condone Libby's lying -- in fact I'm appalled by it. I didn't condone Clinton's lying, but singling out that one column about Clinton misses the message I wrote in several other columns. This was a perjury trap -- you set him up to ask a question that he almost had to lie about. Once you go past that point and lie to the grand jury, no one can support it, but you can understand the reason for the lie.

In Libby's case, I don't know the reason for the crime. I don't know whether or not he was telling the truth and simply forgot he leaked this information -- it's a remote possibility, but I don't buy it. I don't know if he was covering up for someone else's political embarrassment. But I don't think that's the same thing as actually committing a crime.


Milwaukee: As far as I know, Scooter Irving Libby is not eligible for a pardon until he admits his guilt and shows remorse.

Richard Cohen: That may be the case. I didn't propose a pardon -- I would be very reluctant and would be unhappy to see a pardon. My own feeling is that it's a very dangerous step to criminalize politics. This seemed to me to be a leak, the kind of thing Washington does day in and day out. If steel is the industry of Pittsburgh, character assassination is the industry of Washington. You had an op-ed piece in the NYT which was critical of the administration and they moved to respond. It's not like they had the IRS investigate him or bugged his phone, they leaked that his wife probably worked for the CIA and probably sent him to Niger in the first place. You might not think that's appropriate -- I condemned it at the time -- but it's not a crime.


Oakland, Calif.: Mr. Cohen, do you sincerely believe that when "practicing the dark art of politics," "it is often best to keep the lights off," and if so, how do you reconcile your view with the Fourth Estate's responsibility to serve as the public's watchdog against the abuse of power?

Richard Cohen: I think my responsibility is not the same as a politician's responsibility. I think there are a lot of things that are done in any line of work that you may not want to see exposed. Everyone in their life is a hypocrite of some sort, we all have areas of our lives we aren't particularly proud of, we cut a corner here or there. Politics is probably the most open of all endeavors -- it's on the public record, it's covered by the press, and people engaged in it can't keep their mouths shut anyway. But there are elements of politics -- leaks, anonymous sources -- have been done for years and years and years. And while some of this can be abused -- anonymous sources need to be limited more in my opinion -- they can be extremely useful.


Boonsboro, Md.: Thanks for injecting some sanity into the dialogue. The scorched-earth politics of the past 15 years or so have not helped America one bit.

Richard Cohen: You're welcome, call anytime. I agree that politics is being played too hard and also that it's been too criminalized, if I can use that word. I worry about the incessant use of special prosecutors and the insistence that everything is public.

The reason is that we're going to lose all our historical record of what is transpiring. You'll end up with diaries like Ronald Reagan's, where he tells you what he had for lunch but not what went into a decision. People are afraid to put anything down on paper or e-mail because it'll be subpoenaed. So instead you have people whispering in the corridors, with no record of why a decision is being made. In fact, historians in the future are going to have a hard time figuring out when exactly and why exactly George Bush decided to go to war in Iraq.


Tempe, Ariz.: Mr. Cohen, I thought the column was interesting, given the idea that Libby is held responsible for a failed Iraq policy. Like the Abu Ghraib case, this seems to be a lot about punishing people that are guilty of something terrible but are punished to cover sins by higher-ranking people. Libby is beyond the point of making a deal, but could part of the move to pardon him be motivated to protect some other bad acts?

Richard Cohen: I don't know how to answer that question because I don't know what the bad acts might be. If it's simply a question of "did Vice President Cheney set out to destroy the credibility of Joe Wilson," that may be a bad act, but it's not a crime. Did they proceed knowing that his wife was a covert CIA agent? Maybe, but that turns out not to be a crime either. This whole thing happens in Washington all the time, which makes it hard for me to believe Libby's covering up for anyone.

I was reminded about this when reading about Watergate recently, about how the judge of in the Watergate break-in case smelled a cover-up and gave the burglars stiff sentences in order to encourage them to talk. That didn't happen here. The judge didn't say he was giving Libby a stiff sentence to encourage him to turn something else in -- he just said he did this because he lied to the grand jury. So there's not a cover-up involved.


Four counts, not one: Why did your column minimize the charges Libby was convicted of -- namely, one count of obstruction, two counts of perjury and one count of lying to the FBI about how he learned Plame's identity and whom he told? You only mentioned "perjury," but isn't the obstruction charge the most venal? It hampered the investigation and stymied investigations of others involved in leaking Plame's name and CIA employment. Isn't that so?

Richard Cohen: No. I didn't mean to minimize it, I just meant to write in shorthand because it's a column and I have a maximum amount of words. But the special prosecutor knew immediately who leaked to Novak -- and it wasn't Libby.

Let me just say that I put my name on my column, so I don't even know why I'm responding to someone without a name, but since I'm answering to other people, I'll say that the ability of the press to ferret out information and use anonymous sources and to guarantee to those sources that they'll remain confidential has been shredded by this case. Reporter after reporter was compelled to give up their sources. This has been a very bad case for the American press and for the American public and it's all about nothing. A leak.

And I think the people who were pressuring the Department of Justice to appoint a special prosecutor were angry about the war and were hoping pulling the string could unravel the whole thing. They lost sight of the basic principles involved that had to do with the ability of the press to cover a story. You had the jailing of a reporter and now the jailing of a White House aide who almost no one had heard of before this started.


Phoenix: Hi. You mentioned "politics, like sex and real estate, should be done with the lights off." I get the Clinton references but would argue that your later reference to a Stalin-style trial done by the left undermines that idea. Politics should be done with the lights on because I, for one, would like to know my candidate's bedfellows.

Richard Cohen: (Laughs.) I don't want to beat this sexual analogy to death. What I meant is that there are unsavory aspects to politics -- as there are to almost anything else -- and you just have to accept that.

It was clear from the get-go that the administration wanted to destroy Joe Wilson's reputation. I thought Joe Wilson was right. I thought the administration's tactic was underhanded, a smear, and meant to undermine anyone else who might speak out. I condemned it at the time, but that's the way the game is played. I may not like, but there are basic principles involved. Back when I was a reporter I often relied on anonymous and confidential sources -- and without them, some stories Boonsborowould never see the light of day.


Broken system or one-off pardon?: Mr. Cohen, can you remember a prior case where virtually every member of a major political party, and even certain "liberal" beltway pundits, called for a pardon immediately after a jury verdict was handed down? A presidential pardon is an extraordinary remedy, one that everyone agrees should be used sparingly and only when the system has otherwise broken down. So where exactly did the system break down here?

Richard Cohen: I don't remember if there was an immediate outcry following Iran-Contra, which did produce several pardons -- Weinberger and some others. The reason this has produced so many calls for a pardon of Libby is because essentially, at its core, it's being perceived as a political crime. Scooter Libby's champions, people who think he's deserving of a pardon, feel he's the victim of a political vendetta, and if the war had been over when George Bush landed on that aircraft carrier, Libby wouldn't have been indicted -- the war was still popular. The unpopularity of the war drove the push for a special prosecutor to find out who the leaker was. In that, I think his defenders are right. I don't like the war, but I don't hold him responsible for it. And if I did, I'd like to see him tried for something that's a crime -- not this.


Wow: I suspect I can guess the tone of most of the comments you'll get today, and I'll try to keep mine quite civil. It comes down to this: If somebody consciously and intentionally lies to a Federal prosecutor and a grand jury, isn't it appropriate for them to go to jail? Even if the prosecutor has no business having asked the question in the first place? Tell the truth or take the Fifth -- either is fine -- but intentional lying simply isn't acceptable in any witness, let alone a high-ranking government official.

Do you disagree with this basic observation? If so, please explain. If not, how can you still argue that Scooter shouldn't go to jail? I suppose you can simply disagree with the premise that Libby consciously and intentionally lied, but the jury made that determination, and that's what juries are for...

Richard Cohen: I don't quarrel with the jury. In fact, let me just say that my own reading of the trial was that he was guilty. I don't believe that he forgot. But I do believe that while it is impermissible for anyone to lie to a grand jury -- I'm not quarreling with that -- I'm just saying that when you get called before a grand jury and you are a target, there ought to be a crime involved. More than that, in this government, in our government, we ought to make sure that the basis of it is not a political disagreement.

I feel sorry for Scooter Libby. I don't agree with the guy's politics, I've never met him, I don't know him at all. But I do know that he was a successful lawyer probably making ... god knows, a lot of money ... and he chose to go back into government not because he thought he was going to get anything out of it, but because he thought it was good to serve. If he lied to a grand jury it wasn't because he made money illegally or took bribes or some other crime, it was because he was covering up for embarrassment or because he mistakenly thought he had committed a crime. So fine, convict him. But 30 months is excessive.


Boston: If Bush felt he needed to respond to Wilson, why not do it openly, on-the-record, based on the merits?

Richard Cohen: Good question. I'm not sure Bush was involved in this at all, but in general I agree. We in the press have been too willing to allow people to abuse confidentiality for political reasons to attack. And I don't think we should permit it, but believe me, Dick Cheney didn't invent this.


New York: In this chat you just said the following: "In Libby's case, I don't know the reason for the crime. I don't know whether or not he was telling the truth and simply forgot he leaked this information -- it's a remote possibility but I don't buy it." With all due respect, whether you buy it or not means squat. A jury of Libby's peers bought it. They sat through a trial and weighed the evidence and found Libby guilty without a reasonable doubt. Isn't it a little arrogant for you to substitute your judgment for those that sat through the entire trial?

Richard Cohen: I didn't say that. I said I agree that he lied. I agreed with the jury. This is not a technical thing. I thought he was guilty. I thought he lied. Put that in your "squat."


San Jose, Calif.: The spin seems to be that because Armitage may have been the initial leaker and he didn't violate the IIPA, no one who subsequently disclosed Plame's name or status could have committed a crime. I don't think that is a correct interpretation of the statute. Is it?

Richard Cohen: My understanding of it is that a covert agent -- in order for you to commit a crime by exposing a CIA agent, they had to be stationed overseas in a covert position, and then there is a time limit on it. My understanding further is that this law only has been invoked once, when a secretary at an African embassy told her boyfriend there was a CIA agent there. I really don't think that anybody thought Valerie Plame fit that, because she wasn't overseas -- no one thought they were risking her life, she was working in McLean, Va.

You have to ask yourself, what was Joe Wilson thinking? Did he really think he could write a column in the New York Times without risking blowing the cover of his wife? I find that hard to believe.

The important thing here is that, just to give you an example of this being routine Washington stuff, is that Woodward was told this by Armitage and did nothing with it. He didn't see it as news. Novak used it in a column but it was a while before anyone viewed this as being important. Matt Cooper, Judith Miller, Walter Pincus, a lot of people had this information, and it wasn't a page one story. No one thought it was the outing of a covert CIA agent -- and in fact she wasn't covert -- it was just a leak.


Ramsey, N.J.: You are comfortable saying that the Plame case is "all about nothing." As you know, Ms. Plame was at the heart of the Brewster-Jennings CIA front company involved in investigating weapons of mass destruction. Do you know which agents were compromised as a result of her exposure? Which foreign assets and missions? You don't. So how can you possibly say this case is about nothing? Whose word are you taking about that? And why?

Richard Cohen: I'm not taking anyone's word about it. I'm not saying there were no consequences to her outing, but it was done inadvertently. And in fact, a special prosecutor could not bring a case against anybody for the leak.


Pittsburgh: What, in your opinion, should the CIA have done when they read Novak's column? Was it inappropriate for the agency to ask for an investigation and do you think John Ashcroft would have acted substantially different?

Richard Cohen: No, obviously it was not inappropriate, but I think it is the obligation of any prosecutor to exercise judgment and to say "is this worth my time, is this what I want to do?" This is why I started with the speech by Attorney General Jackson. Every prosecutor realizes you can always make a case. There's the old line about "a grand jury will indict a ham sandwich" if told to indict by a prosecutor, which is right. Lawyers understand and realize that people lie all the time; sometimes they simply forget or get confused. But you always can find a contradiction when you get people on the record.


Washington: Did you favor Gerald Ford's pardon of Richard Nixon?

Richard Cohen: No. I didn't. In the first place, Nixon hadn't been indicted -- I wanted it to play out a little more. Look, I had covered the Agnew case before that, and as far as I was concerned, Agnew got away with murder. He'd used his position as vice president to extract a deal in which he got no jail. Nixon also got away with murder on the basis of his high position. But there were real crimes involved -- Agnew was a crook and Nixon had abused his authority, and as far as I was concerned in a criminal way.

As I wrote in the column, I'm not even sure I'd like to see Scooter Libby pardoned so that there's no consequence for what he did -- although he's spent every cent he's had on legal fees and not slept for eight months, so there has been some toll exacted -- but I think the sentence is excessive, particularly without an underlying crime. Look, the public has a right to know and a right to honest public officials, but we recognize there has to be some area of gray, and you shouldn't permit prosecutors to prosecute everything that is technically or actually a crime. When, as I keep going back to over and over again, you ask yourself if Scooter Libby was lying -- about what? About not much.


Richard Cohen: The column got a stunning, overwhelming number of e-mails, which I have been unable to answer, so I'd like to apologize to those people who did not get a response -- and from the looks of it will not get a response. I hope this chat will suffice.


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