Stan Crock is a former Business Week editor and correspondent.
President Trump’s move to pardon Lewis “Scooter” Libby was the correct decision — even if, as I suspect, Trump acted for the wrong reason.
I worked briefly as a journalistic consultant for Libby’s defense team in 2008; I’ve known him socially for years; and I spent hours studying the grand jury transcript and other documents in the case. My conclusion? The left and right had warring narratives about the case, both of which were flawed.
The left depicted Libby as the center of a White House cabal that outed CIA employee Valerie Plame because her husband, Joseph C. Wilson, wrote a New York Times op-ed criticizing President George W. Bush’s Iraq policy. In fact, Richard Armitage, the deputy secretary of state who often was at odds with the White House, leaked Plame’s CIA affiliation to columnist Robert Novak. There was no White House cabal. Nor, despite oceans of ink to the contrary, was Libby convicted of leaking. He was convicted of saying that NBC journalist Tim Russert brought Plame’s name up in a conversation when Russert and the prosecution said Plame’s name did not come up.
The right viewed Libby as a hero for admirably taking the fall for the administration and protecting Vice President Richard B. Cheney, Libby’s original source about Plame’s CIA ties. The problem with this assessment is that Libby in fact was candid about Cheney’s role. Grand jury transcripts and FBI notes about Libby’s interrogation show that he told both the grand jury and the FBI that he first learned about Plame from Cheney. So much for that coverup.
So what did happen? Consider the finding of the D.C. Bar’s Office of Disciplinary Counsel when Libby sought reinstatement of his license to practice law. Normally, such a request requires acknowledgment of the seriousness of the offense and a statement of remorse. Libby acknowledged the seriousness of perjury and obstruction of justice, but he continued to insist on his innocence. That assertion required the Disciplinary Counsel to use a much higher standard to review the application. But the counsel found credible evidence supporting Libby’s innocence. One reason: the recantation of critical testimony by former New York Times reporter Judith Miller. She realized that prosecutor Patrick Fitzgerald had withheld key information from her, and she gave incorrect and damning testimony as a result.
In addition to that dubious prosecution move, Fitzgerald knew early on that Armitage was the leaker and that he evidently had not committed a crime (he never was charged), presumably because he had no criminal intent. That should have ended the investigation. But Fitzgerald kept going. Fitzgerald also inflamed the jury by saying someone could have died because of Plame’s outing despite a CIA finding that there was no damage to any CIA assets or Plame.
The prosecution’s theory was that Libby lied about Russert bringing up Plame so that when he later leaked to Miller and Time magazine’s Matt Cooper, Libby would not be relying on classified information, namely, the information from Cheney. But the evidence that Libby lied about his conversation with Miller — he denied leaking Plame’s name to her — was so bad that the judge tossed the charge before it reached the jury. And the jury acquitted Libby of lying to the FBI about his conversation with Cooper. Libby had denied leaking to Cooper, and Cooper’s notes supported Libby’s version of the conversation.
Yet the jury convicted Libby of lying to the grand jury and FBI about the conversation with Russert, who said Plame did not come up in their brief phone call. So the jury convicted Libby of lying to cover up crimes he didn’t commit (leaking to Cooper and Miller) to protect someone he wasn’t protecting (Cheney). Really? I asked a juror what Libby’s motive for lying was, and the juror said the jury was not tasked with finding a motive. But how do you distinguish between poor memory and lying unless there is a reason to lie? You don’t lie to a grand jury or the FBI for giggles.
The presiding judge didn’t allow testimony from memory experts. They would have said that memory is not like a videotape you can just replay. It gets shaped and changes over time. That’s how some government witnesses didn’t remember discussing Plame with Libby when first interviewed. Then somehow their memories conveniently and miraculously improved over time, and at the trial they did remember such conversations. I wish my memory improved with time.
At worst, Libby had a faulty memory. At best, his memory was right. But even a faulty memory is not perjury. Hence Trump did the right thing.
But if Trump thinks the pardon’s message is that he will reward loyalty even for perjurers, Libby is not an example of that. Libby was neither loyal nor disloyal. He was simply truthful. Trump also might think that like Libby, he is a victim of an overzealous prosecutor. But it’s harder to make that argument about special counsel Robert S. Mueller III. He hands over to others matters outside his bailiwick. Dozens of contacts by Trump campaign aides with Russians mean his probe isn’t a witch hunt. Ditto for the guilty pleas Mueller has notched. Whatever message Trump may have thought the pardon sends, he didn’t understand that the parallels aren’t there. As with everyone else, what Trump knows about the Libby case just isn’t so.