Right Turn readers know my view that former vice president Dick Cheney’s chief of staff Scooter Libby was dealt a severe injustice by prosecutor Patrick Fitzgerald who knew early on that another official, Richard Armitage, had leaked Valerie Plame’s name. Fitzgerald asserted that Libby had lied to prosecutors rather than mistakenly recalled a phone call with now-deceased reporter Tim Russert. The case should never have gone forward (or, if it had, a memory expert should have been permitted to testify), and President George W. Bush should have granted Libby a full pardon before leaving office. (As an aside, Libby’s memory was notoriously bad as now-Fact Checker and then-State Department reporter Glenn Kessler’s testimony in the case confirmed. As Glenn has summarized it, Libby told the FBI that he told Kessler about Plame; Kessler testified he did not. So Libby was convicted for telling the FBI he didn’t tell Russert about Plame and falsely admitted to telling Kessler about Plame—when he did not. If this was a “cover up,” it was the oddest in history, but it does seem in retrospect that Libby’s memory was awful.) Getting back to the conviction, it cannot be forgotten that Armitage and his boss Colin Powell deserve our scorn for not coming forward early on to exonerate Libby.
Now it has come to light that the prosecutorial misconduct was even more substantial than previously believed and the verdict therefore, in my view, utterly tainted. Former New York Times reporter Judith Miller, whose testimony and notes were central to the case, has written a book. Peter Berkowitz writes:
Ms. Miller’s new memoir recounts that after her conditions had been met and Mr. Fitzgerald asked the court to release her from jail in September 2005, she was summoned to testify before the grand jury. While Mr. Fitzgerald prepared her, she recalls, his pointed queries led her to believe that a four-word question regarding Joseph Wilson surrounded by parentheses in her notebook—“(wife works in Bureau?)”—proved that Mr. Libby had told her about Ms. Plame’s CIA employment in a June 23, 2003, conversation (well before Mr. Libby’s phone conversation with Russert). She so testified at trial in 2007.
Three years later, Ms. Miller writes, she was reading Ms. Plame’s book, “Fair Game,” and was astonished to learn that while on overseas assignment for the CIA Ms. Plame “had worked at the State Department as cover.” This threw “a new light” on the June 2003 notebook jotting, Ms. Miller says, since the State Department has “bureaus,” while the CIA is organized into “divisions.”
Ms. Miller, who had spoken to many State Department sources around the same time she spoke to Mr. Libby, says in her memoir that she then realized she must have begun her conversation with him wondering whether Mr. Wilson’s wife worked at the State Department. Ms. Miller also now understood that “If Libby, a seasoned bureaucrat, had been trying to plant her employer with me at our first meeting in June, he would not have used the word Bureau to describe where Plame worked.”
Mr. Fitzgerald, who had the classified file of Ms. Plame’s service, withheld her State Department cover from Ms. Miller—and from Mr. Libby’s lawyers, who had requested Ms. Plame’s employment history. Despite his constitutional and ethical obligation to provide exculpatory evidence, Mr. Fitzgerald encouraged Ms. Miller to misinterpret her ambiguous notes as showing that Mr. Libby brought up Ms. Plame.
It is not clear the conviction can be reopened or if Libby would even want to go down that road. What is evident, however, is that Miller’s unwittingly false testimony resulted in a gross miscarriage of justice and at a huge financial and professional cost to Libby. Whether by judicial reconsideration or pardon, his conviction should be expunged.
As for the MSM, which covered the case nonstop, its failure to cover the exculpatory information is inexcusable. Common decency would suggest at a front-page headline or two, or at least one evening news story — after hundreds touting Libby’s “guilt” and the magnificent work of the prosecutor.