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Can 'Scooter' Skate?

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?

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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.

At trial, a clever defense lawyer will cast the indictment's silence on these matters as a sign that the Special Prosecutor preferred that the jury not learn the whole story. The defense lawyer will note that the lengthy indictment curiously fails to mention that, from the beginning, Libby knew for certain that all relevant officials would be interviewed by the FBI and would be subject to subpoena by the grand jury. The defense lawyer will point out that the indictment steers clear of the fact that Libby had to assume, given the waivers of any promises of confidentiality, that all or most of the involved reporters would provide statements to the FBI and evidence to the grand jury. And so, the defense lawyer will contend, the indictment attempts to conceal that, in order to accept the allegations against Libby as true, you have to believe that he was so witless that he chose to lie about months-old conversations not by claiming he couldn't remember, but by fabricating a story he knew a dozen other people would contradict. The indictment, the defense lawyer will say, asks the jury not only to convict Libby of five felonies, but also to throw common sense overboard. The most likely explanation of all the facts, Libby's lawyer will conclude, is that his client told the FBI and the grand jury the whole story, just as he remembered it, with no concern that his story would be contradicted precisely because that's how he remembered it.

The added beauty of a "common sense" defense for Libby is that it turns the apparent strengths of the government's case to his advantage. The fact that there are three reporters available to contradict him makes it less likely that he would knowingly lie than if there were only one reporter who could contest his account. The fact that there are a half dozen or more officials with whom he spoke about Valerie Wilson's employment makes it less likely that he would knowingly lie than if there were only one or two officials who could put the lie to his version of his events. And it makes far more sense that Libby — knowing he was in the Special Prosecutor's sights — repeated to the grand jury what he thought he had truthfully told the FBI than that he blithely went into the grand jury to repeat knowing lies under oath, just to make sure the Special Prosecutor had sufficient counts for his indictment.

Besides all this, suppose it turns out that Tim Russert and Matt Cooper had several conversations each with Libby in the summer of 2003 and can't remember, on cross examination, what exactly was said in which conversation? Suppose, at trial, Judith Miller comes off as strange a person as she sometimes has appeared on TV, or suppose some of her less-than-friendly colleagues testify to prior episodes that call her credibility into question? For sure, the government won't bat 1.000 at trial, and that's another reason why, for now, we must be content with a tentative estimate of Libby's prospects.

All in all, I'd say that the government's case looks pretty good, but "Scooter" is worth a few bucks.

Tom Scorza served 10 years as an Assistant U.S. Attorney in Chicago, including stints as Chief of the Organized Crime Drug Enforcement Task Force and Senior Litigation Counsel for Criminal Cases. He practices law and writes in Chicago.

By Tom Scorza

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