We now know that there are at least five felony charges stemming from the investigation into the public disclosure of the identity of a then-undercover CIA agent. We also now know that none of these charges are based upon the crime of disclosure but instead about the alleged crimes of obstructing an investigation into the crime of disclosure. We know — indeed we have been reminded — that officials at the highest levels of government are all-too-often unable to avoid falling into the "it's not the crime it's the cover-up" trap — an astonishingly avoidable mistake given how much play that canned line has had in Washington since the days of the Watergate investigation. Politicians are known for failing or refusing to learn the lessons of history but this really takes the cake.
For I. Lewis "Scooter" Libby, Vice President Richard B. Cheney's now-former chief of staff, it was the first day of the rest of his life. Instead of huddling with the men and women who run the world he will instead now have to huddle with his own lawyers, whom he has to pay out of his own pocket, to save him from potentially serious prison time for the felonies with which he has been charged. His defense will be that he did not intend to mislead the grand jury, or impede the investigation, or commit perjury, by making false statements. He will say that he never had any criminal intent. Or he will say that the statements that he made indeed were not false at all under the often-torturous legal definitions that permeate all of these statutes. Ask Martha Stewart about how likely it is for that sort of defense to prevail. She famously spent five months in prison for being convicted of fewer charges.
The case against Libby will come down to the quality (or credibility) of Libby's story versus the quantity of the prosecution's external evidence against him. I do not anticipate a "political" defense by Libby — I don't expect his attorneys to scream that Fitzgerald is a political hack out to destroy the Bush administration. He isn't and everyone knows it. Instead I expect a very technical defense that will be a bit more fact-oriented than law-oriented. I don't expect a long trial, if we ever get to that point, but I do expect one brimming with the public disclosure (ironically enough, there is that word again) of less-than-ideal facts about the White House. I also suspect that Libby (and perhaps the White House as a third party) will put pressure on the trial judge to seal or otherwise keep private portions of the trial under the guise of national security and/or executive privilege. Look for that issue to come up early in the process.
For Karl Rove, President George W. Bush's right-hand man, it was a day of relief tempered by angst. Special prosecutor Patrick J. Fitzgerald's investigation into the disclosure of the identity of a CIA agent is not over, and Rove and his lawyer know it, and now both have to contend with the idea that Libby, who presumably talked with Rove regularly about things large and small, now has great incentive to share whatever he hasn't already shared with Fitzgerald and Company. And that, of course, might give even more momentum to an investigation that has been sailing with the wind at its back since Judith Miller, the New York Times reporter at the center of much of this, finally talked to investigators a few weeks ago.
I can't, because I think it is unlikely that the loyal Libby would turn on his friends and political colleagues. But stranger things have happened at the intersection of law and politics; at the confluence of personal liberty and professional courtesy.
For Vice President Cheney, it was a day that portends at least one future day in court before a judge and/or jury. In order for Fitzgerald to prove that Libby misled the grand jury the prosecutor may very well need to call Cheney to the witness stand to refute Libby's defense that he learned of the identity of the CIA agent from a reporter. On the perjury charge, for example, federal law specifically requires the government to establish its case using more than a single witness. The other side of the "story" is that Cheney himself told his chief deputy about the woman. If Cheney is telling the truth then Libby might not be and that's one stream of evidence that would go to the heart of the case against Libby. So close your eyes (I'm assuming you aren't reading this on your blackberry while you are driving) and imagine the Vice President of the United States, bad ticker and all, raising his right hand and swearing under oath in front of a jury in a criminal case involving the White House that he is going to tell the truth, the whole truth and nothing but the truth. It's quite an image, no?
For the prosecutor himself, it was a day that demonstrated again his control over the process and his obvious conviction that there is still more evidence to uncover as the investigation proceeds. It would have been easy for Fitzgerald to simply say today that he was closing up the investigatory phase of the case and declare his intention to focus now upon the prosecutorial phase. He deliberately chose to do the opposite — to empanel a new grand jury that now will continue to help investigate this mess. It ought to tell us all something that Rove's attorney made a point of publicly declaring that his client will continue to cooperate with Fitzgerald. It tells me that Rove just barely escaped being indicted himself and that he still may very well be so, with or without any new information from Libby.
For the rest of us, the day confirmed that the law is not always as tidy as we would like it to be. We have some answers but no resolution; some direction but very little clarity. It is no small thing when a member of the President's inner circle is forced to resign following an indictment. It happens perhaps once a decade or even once in a generation. But the thunderclap that today could have brought — the sort of group take down that some predicted — did not occur. It was day of big steps but not giant leaps.
And so the story of the fall of the House of Libby, and the continuing anxiety in the House of Rove, and the looming imbalance for the House of Cheney, and the upgraded chaos in the House of Bush, the people's house, will be with us for quite some time to come.
By Andrew Cohen