The nearly-four year investigation of the Valerie Plame leak ended yesterday with one of the most derivative convictions in the history of Washington jurisprudence: Lewis “Scooter” Libby was convicted of offering misleading testimony to an inconclusive investigation of a non-crime. Special Investigator Patrick Fitzgerald knew at the outset of his investigation that outing Valerie Plame was not a criminal offense, that antiwar dove Richard Armitage leaked her name, and that the administration had acted to refute lies Joseph Wilson told during wartime. Pushing forward his inquiry under these circumstances looks very much like either extravagant self-justification or entrapment. It is by no means an indictment of prewar intelligence, as the Left contends.
The Problems with the Case: Procedural Questions About a Procedural Crime
Today’s Washington Post reveals Fitzgerald’s motivation: he wanted the scalp of Dick Cheney. R. Jeffrey Smith reports that Fitzgerald targeted Libby out of “pique at his inability” to nab Cheney, “the man behind the screen, pulling the switches and levers” of his minions. Smith concludes, “Although Cheney was the target, Fitzgerald's investigation could not reach him because of Libby's duplicity.” This explains why he advanced an incredibly weak case. How weak?
“Almost every witness would misspeak on direct [questioning] or left something out of grand jury testimony or got a date wrong,” said Ty Cobb, a former assistant U.S. attorney who heads the white-collar criminal defense group at Hogan & Hartson. He expressed skepticism that the case against Libby should have been presented to a jury.
The jurors called administration official Ari Fleischer “Slick Willie” and said reporter Judith Miller’s “memory was terrible.” During deliberations, they often thought sending Libby to jail “sucks.”
Judge Reggie B. Walton placed tight restrictions on Libby’s counsel, which hampered a full defense. However, the defense brought some of these upon itself – by pandering to the leftist prejudices of D.C. jurors: Scooter Libby, too, was the victim of a vast, right-wing conspiracy! Ted Wells’ opening statement portrayed Libby as a scapegoat for Karl Rove. Then, as Time magazine noted, “The defense never offered any testimony to back up the claim, and by the end of the trial, it was largely forgotten.” Wells also suggested Libby and Cheney would take the stand. Judge Walton punished Wells’ failure to follow through on both counts. Walton had already barred counsel from telling the jury Plame was (apparently) not covert, and no underlying crime had been committed (although Fitzgerald disregarded this rule, saying Libby’s actions could have gotten someone “arrested, tortured, or killed”). In alleged retaliation, he restricted evidence that would discredit the prosecution’s star witness. Juror Denis Collins said Tim Russert’s testimony was the “primary thing that convinced us on most of the counts,” but Walton forbade documents showing gaps in Russert’s memory. He also disallowed Wells to demonstrate how taxed Libby’s memory was during his summation. First, Walton gutted the defense Libby could present, then he took away the main pillar Libby managed to salvage. Unfortunately, Wells’ demagoguery is the only thing the American people recall about the trial, encapsulated by Collins’ reaction: “Where is Rove and all these other guys?...I'm not saying we didn't think Mr. Libby was guilty of the things we found him guilty of. It seemed like he was, as Mr. Wells [his lawyer] put it, he was the fall guy.”
If Judge Walton’s restrictions on the lawyers was bad, his interaction with the jury was nearly criminal. On Monday, the jury asked whether reasonable doubt meant “it is not humanly possible for someone not to recall an event.” This would mean Libby is presumed guilty and must prove himself innocent. Although both Prosecutor Fitzgerald and defense attorney Wells agreed the jurors were off-base, Judge Walton responded:
Humanly possible is just a nebulous term. They might be asking whether the government has to prove guilt beyond all doubt. I don't know. (Emphasis added.)
Thus, both the judge and the jury were clueless about the most fundamental criteria of the judicial system, giving new meaning to the term “blind justice.”
The jury also seemed not to understand the charges. Last Wednesday, the jury queried whether Libby were charged with lying to Matthew Cooper of Time. (He was not; thankfully for Democrats, it is not against the law to lie to the media; see below.) Their specific question was unclear, and before Judge Walton could respond, the jury wrote back: “After further discussion, we are clear on what we need to do. No further clarification needed. Thank you. We apologize.” Their underlying question, and their self-directed answer, remain mysterious to everyone.
So does the import of this case.
Lies and the Lying Leftists Who Tell Them
Some envision an ever-widening probe, or a back room deal in which Libby rats out his former puppet-master. Blogger Andrew Sullivan thinks it’s time to consider impeaching Cheney, and Hardball’s Chris Matthews has long believed in the inherent evil of Vice President “Chee-nee.” The Left’s fantasies aside, Fitzgerald has declared, “the investigation was inactive prior to the trial...I do not expect to file any additional charges. We’re all going back to our day jobs.” Leftists, too, have resumed their day jobs, which consist of slandering the president and undermining their nation’s morale during a war.
If they cannot count on future indictments, they can at least make the most of this conviction by perjuring themselves in the court of public opinion. John Kerry – who asserted “No one in the United States should try to overhype” Iraq’s first democratic election in half-a-century – regarded the tainted, third-generation conviction on providing questionable testimony as the mighty Angel of Vengeance, stating, “This verdict brings accountability at last for official deception and the politics of smear and fear.”
In this, he truly represented his party, which continues its mendacious campaign to portray the Libby indictment as the leftist Third Secret of Fatima. Within minutes, Chris Matthews replied in a fit of oratorical onanism, “This is all about the war in Iraq.” This despite the fact that Plameologist Matthews knows full well Fitzgerald specifically stated, “This indictment is not about the war.” Matthews pivoted, “Of course, it's a perjury case, but to limit itself to the legal aspects is to limit the Alger Hiss case of 1950 – that great Cold War spy case – to the simple matter of perjury.” Joe Wilson also got the talking points, parroting: “Convicting [Libby] of perjury was like convicting Al Capone of tax evasion or Alger Hiss of perjury. It doesn't mean they were not guilty of other crimes.”
It is a great injustice that thanks to the Left's manipulation of the truth, the average American will think this trial has anything whatever to do with prewar intelligence. Speaker of the House Nancy Pelosi lied this somehow shows a disregard for national security:
Today’s guilty verdicts are not solely about the acts of one individual. This trial provided a troubling picture of the inner workings of the Bush administration. The testimony unmistakably revealed – at the highest levels of the Bush administration – a callous disregard in handling sensitive national security information […as opposed to John Deutsch?] and a disposition to smear critics of the war in Iraq.
Senate Majority Leader Harry Reid – picking up from the last time he chose to grandstand about this case, closing the Senate – opined: “It's about time someone in the Bush administration has been held accountable for the campaign to manipulate intelligence and discredit war critics. Lewis Libby has been convicted of perjury, but his trial revealed deeper truths about Vice President Cheney's role in this sordid affair. Now President Bush must pledge not to pardon Libby for his criminal conduct.” Howard Dean seconded, and presidential candidate John Edwards agreed Libby “should absolutely not be pardoned.” 
Arianna Huffington provided their rationale on her vanity blog: “Libby was found guilty not just of perjury but of obstructing justice – obstructing justice in order to encumber the investigation and keep secret the dark, ugly truth about how the White House sought to cover up its lies.” No, no, that would be Susan McDougal, pardoned during the last administration without outrage from Pelosi, Reid, et. al.
The Nation’s David Corn (and Chris Matthews – noticing a pattern?) attempted to maximize the importance of the conviction. Libby, Corn blogged, “is the first White House official convicted of a crime since the Iran-contra scandal.” This is true only insofar as President Clinton confessed, avoiding conviction by admitting conduct “prejudicial to the administration of justice.” For this, his law license was suspended and he had to pay a $25,000 fine. Libby managed to get indicted without paralyzing the federal government during a sustained, two-year crescendo of terrorist attacks.
The Real Injustice
If Scooter Libby deliberately obfuscated a federal investigation – even one that should not have been pursued – his verdict would be well deserved. Unlike Bill Clinton’s perjury, reasonable people can differ about Libby’s memory. It is incontestable the time and money of this probe could have been better applied elsewhere – say to Sandy Berger. For that matter, there are more hardened criminals on MTV’s “Juvies.” Certainly, the conflicted witnesses, constricted debate, and botched jury instruction leave room for reasonable doubt.
Yet the greatest outrage of the Libby conviction is the way it has stained Vice President Dick Cheney and the Bush administration while enriching Ambassador Joseph C. Wilson and Valerie Plame.
As we not know, Fitzgerald was obsessed with tying Dick Cheney to Richard Armitage’s leak. In a classic fit of projection, Fitzgerald has smeared Cheney as being “obsessed with Wilson” in the aftermath of the ambassador’s fallacious op-ed in the New York Times claiming the president lied about Iraq’s attempt to purchase yellowcake uranium from Niger. As always, the media’s ability to frame the question has worked to its advantage, presenting self-defense as aggression and a longing for exoneration with vengeance. Joseph Wilson accused the Bush administration of knowingly lying about Niger. Missing from the media spotlight is the fact that Wilson has proven himself one of the most accomplished liars in recent political history, lying non-stop from the moment he went to Niger to shoot down “this crazy report.”:
- Wilson claimed Vice President Cheney dispatched him to Niger; Cheney did not even know of his trip.
- Wilson claimed his wife “had nothing to do with the matter. She definitely had not proposed that I make the trip.”; however, Plame wrote a memo successfully advocating her husband be chosen for the assignment (based in part on the fact that he had “lots of French contacts”).
- Wilson dissembled that he wrote a report of his activities; he never laid pen to paper.
- Wilson said his trip uncovered no evidence of Saddam Hussein’s attempt to purchase yellowcake uranium; the CIA agents who debriefed him averred that his testimony “lent more credibility” to the notion Saddam had.
- Wilson claimed he saw the documents the uranium claim was based on, and they were forgeries, because “the dates were wrong and the names were wrong”; however, the CIA did not have these documents until eight months after Wilson left. In this case – in which Wilson, not Libby, remembered things that never occurred – he sheepishly claimed he had “misspoken.”
The difference between Joe Wilson’s proven lies and Libby’s theoretical ones could not be more stark: Libby’s endangered no one, while Wilson’s undermined the commander-in-chief while U.S. troops were in the midst of a hot war. Neither could their recompense be any more divergent. Libby faces 30 years in prison and a $1.25 million fine. Meanwhile, the Plame-Wilsons will proceed with their lawsuit against the Bush administration for “outing” Plame, field an offer from Hollywood heavyweight Jerry Zucker to make a biopic (which I believe is tentatively titled, “The Protocols of Learned Scooter Libby”), and Valerie Plame will follow her husband’s bestseller with a $2 million book deal of her own. The disgraced ambassador said his wife “wept” – tears of joy – “when she heard the news” of Libby’s conviction. The status-driven social climbers are crying all the way to the bank.
Patriotic Americans, dedicated to winning the War on Terror – or who simply believe in the ideals of truth and decency – cry, too.
ENDNOTES:1. Hardball. MSNBC. March 6, 2007.