The Scooter Libby trial: What was the original sin?

The Intelligence Identities Protection Act was believed to be the prime mover behind prosecutor Patrick Fitzgerald’s long investigation of White House leaks to the press, yet it ended up netting not a single indictment. Is the act too narrow? Too broad? Or should it even exist? All this week, Byron York and Jeff Lomonaco will be debating the Scooter Libby trial and the many ramifications of the leak brouhaha. In the days to come, York and Lomonaco will take on the perjury trap, the culture of D.C. journalism, the suspect loyalty of the Bush Administration, and Plame/Wilson superstardom.

Shallow charges and deep thoughts
By Byron York

Today the jury in the trial of I. Lewis “Scooter” Libby is in day nine of deliberations, with no end in sight. There was a lot of haggling in the courtroom this morning betweenprosecution and defense over how to answer a couple of questions from thejury. Jurors seem confused, or troubled, or something, over the charge thatis based on Libby’s testimony about a single conversation he had withMatthew Cooper, then of Time magazine. At times, the jury has seemed to beconfused about whether Libby was charged with lying to Cooper or with lyingto the FBI. Obviously, the answer was the latter—if government officialscould be indicted for lying to reporters, our prisons would be far morecrowded than they are today. But the jury’s questions point to the ways inwhich the lack of an underlying crime has made this trial a very strangeexercise.

In the first days of 2004, we all thought that prosecutor Patrick Fitzgeraldwas investigating whether anyone in the Bush administration violated theIntelligence Identities Protection Act, the Espionage Act, or some othernational-security law when the identity of Valerie Plame Wilson was leakedto the press. But now we know that Fitzgerald, unable to find sufficientevidence to charge anyone with those very serious crimes, spent most of histhree-year investigation looking for perjury, false statements, orobstruction of justice. He got Libby.

At the trial, it would have been nice for the prosecution ifFitzgerald had been able to tell the jury that Libby lied about a crime thatLibby had committed. That would make the whole thing seem more, well,important. But of course, that’s not the case. So instead, Fitzgeraldtried, on nearly every day of the trial, to suggest thatLibby committed some sort of crime in leaking Plame’s identity. Jurors,most of whom didn’t know much about the case when the trial began, must havebeen confused. And now, judging by their notes, they seem unsure of some ofthe basics of the charges against Libby.

When the trial is over, I guarantee you they will want to know moreabout this case. Was Valerie Plame Wilson covert? If she was, why wasn’tanybody charged with blowing her cover? Why was Libby the only guy indicted?

Maybe they’ll learn the answers in the movie. By the way, my votefor an actor to play Joseph Wilson is Alec Baldwin. Although eight yearsyounger than Wilson, Baldwin has had a good run of late—whatever hispolitics, he’s a marvelous actor—and could capture the deeply serious,don’t-you-know-who-I-am, they’re-treating-me-like-I’m-a-nobody-from-the-bowels-of-the-building quality that we’ve come to love in the former ambassador.

Finally, last Friday, the jury also sent out this question:

What does that mean? It appears that, besides being deep in theweeds of the CIA leak case, and not entirely understanding the chargesagainst Libby, the jurors, or at least some of them, are succumbing toReally Deep Thoughts about the nature of guilt or innocence. This couldtake a while.

Byron York is White House correspondent for National Review. His coverage of the Libby trial can be read at nationalreview.com.

Who says there was no underlying crime?
By Jeff Lomonaco

Byron, you and I agree on one thing: Alec Baldwin is a marvelousactor. I think Baldwin’s acting on the show 30 Rock is the funniestthing on network television right now. But that’s about it. I findlittle to agree with in your view of the Libby trial and the investigation ofthe blowing of Valerie Plame’s cover that eventuated in it. I don’teven think Baldwin should play Joe Wilson in the movie version, andnot just because I do not share your contemptuous view of Wilsonhimself.

I don’t think the questions the jury has posed to the trial judge show the jurors to be as benighted as you seem to think. Andthat’s partly because I don’t think the prosecution’s case has been particularly confusing (nor is there really any evidencethat that is the cause of the jury’s requests forclarification). Indeed, I’m a little surprised at the confidence withwhich you assert various things about special prosecutor PatrickFitzgerald’s investigation, both because it has beenconducted in secret—a secrecy that Fitzgerald’s team has preservedintegrally—with relatively little of its strategy and directionrevealed at trial, and because what has been disclosed does not reallysupport your main contentions.

You speak confidently, for instance, of “the lack of an underlyingcrime” without offering any reason why we should not take seriouslythe notion that obstruction of an investigation actuallyobstructs the ability of investigators to make judgments aboutwhat crimes were committed.

What’s more, an observation you’ve made elsewhere should undercut at least theconfidence of that assertion as well as the notion that Fitzgerald wasall along concerned solely or principally with so-called processcrimes: It is now undeniable that Fitzgerald was investigating notjust Libby’s conduct but the conduct of his boss, Vice PresidentCheney himself, whom Fitzgerald suspected of directing Libby todisclose the fact that Valerie Plame worked for the CIA to reportersin July 2003. Not only Fitzgerald’s stunning closing rebuttal, butalso the eight hours of Libby’s 2004 grand jury testimony make thatquite clear. (I’ll have more to say about this dimension of the casetomorrow.) To no small extentLibby is accused of obstructing that investigation. So thenotion that Fitzgerald was focused only on obstruction-type crimes andnot the possibility that laws were broken when Plame’s cover was blowndoes not hold up.

You also make it sound like Fitzgerald was fishing around forprocess crimes and eventually settled on Libby. In fact, almost thereverse is true: When Fitzgerald took over the investigation at thevery end of 2003, he took over from investigators who stronglybelieved that Libby had lied to them in fall 2003—lied to themextensively and egregiously and with a coherent pattern that pointedto a cover-up of his own conduct and the conduct of Dick Cheney. Whatwas Fitzgerald supposed to do, simply let that go?

What is true is that Libby’s outstanding lawyers succeeded in hemming in Fitzgerald on a number of mattersrelating to what Fitzgerald could claim about the propriety of Libby’sunderlying conduct. (If every defendanthad Libby’s fortune in being backed by the money of numerousRepublican VIPs, I suspect we’d have a much fairer criminal justiceSystem.) But that hardly means that Fitzgerald’sinvestigation or his prosecution of Libby were as confused orconfusing as you make it sound. The jury has very specificdecisions to make. But I suspect you and I would agree that a lotmore rides on the outcome than Libby’s fate in the criminal justicesystem, as weighty as that is.

Jeff Lomonaco is an assistant professor of political science at the University of Minnesota, where he specializes in political theory. He has been doing analysis of the Libby trial for The American Prospect Online.