Can 'Scooter' Skate?

Lewis Libby, Vice President Cheney's chief of staff, testifies on Capitol Hill in Washington in this March 1, 2001 file photo.
This column was written by Tom Scorza.
So, can "Scooter" Libby beat the rap?

It's impossible to be completely confident in putting out an early line on his chances. For one thing, as Special Counsel Patrick Fitzgerald suggested, there's no guarantee that what's contained within "the four corners of the indictment" shows all of the government's cards. Libby's goose is surely cooked if, for instance, the government has an undisclosed recording of a wiretapped phone call or a "wired" conversation in which the Vice President's former Chief of Staff brags that he went in and pulled the wool over the eyes of the FBI and the grand jury.

By the same token, however, there's no guarantee that the government has gathered all the relevant facts. Libby will almost certainly skate if some reporter whom the FBI and the grand jury missed comes forward and reveals that, sometime in June or July 2003, he or she told Libby that several reporters in Washington were saying that Joe Wilson's wife, Valerie, worked for the CIA. It's hard to believe that jurors would convict Libby of lying if they have reason to think that he heard about Valerie Wilson's place of employment from a reporter around the time he heard the same thing from various government officials — but then mixed up the order of events and mistakenly remembered which reporter it was who told him about the Valerie Wilson-CIA rumors.

But suppose there are no government smoking guns and no defense bombshell witnesses? What does the indictment itself tell us about Libby's odds?

At first blush, he is in deep doo-doo. He is charged with lying to the FBI and the grand jury about conversations he had with three reporters, Tim Russert of NBC, Matt Cooper of Time, and Judith Miller of The New York Times. The indictment alleges that Libby falsely claimed that each of those reporters told him that it was all over town that Joe Wilson's wife worked for the CIA; the indictment also says that Libby embellished his lies by falsely asserting either that he was surprised by the reporters' revelations or that he did not know at the time whether Valerie Wilson worked for the CIA or not. Trouble is, the indictment makes clear that Russert, Cooper, and Miller have all contradicted Libby's story, and it's a sure bet that they will do so again at trial. If Libby sticks to his story, it won't be a "he says/she or he says" case: it's going to be Libby versus a gang of three.

Even worse, the hefty indictment lists in excruciating detail six instances, prior to the impugned conversations with Russert, Cooper, and Miller, in which either government officials (including the Vice President!) told Libby where Valerie Wilson worked or Libby told the officials where she worked. In short, the indictment promises that no less than six government officials will appear at trial and contradict Libby's claim that he learned of Valerie Wilson's CIA employment through reporter gossip. So, make that Libby versus a gang of nine, and that doesn't count another three or four government officials, also listed in the indictment, whose expected trial testimony will tend to corroborate the testimony of the first six officials.

But what about the dog that didn't bark — or, in this case, what the indictment, despite its length and detail, does not spell out?

The indictment includes a descriptive subsection entitled "The Criminal Investigation" but makes no reference to several widely-known facts: namely, that the FBI and the grand jury had free access to every government official involved in the matter; that all officials, including Libby, who had had conversations with reporters of interest to the Special Prosecutor waived any claims of confidentiality; and that Libby was, from early on, one of the main targets of the investigation. The indictment avoids acknowledging things that the whole country knew about the investigation — everyone, including Libby, knew that everyone was talking, and everyone, especially Libby, knew whom the Special Prosecutor was after. There's hope for Libby in those glaring omissions.