There are generally two opinions on the verdict in the Lewis Libby case. One is that he was guilty of lying but a fall guy for higher-ups. The other is that he was a victim who deserves a presidential pardon. Another possibility is that his lawyers blew it. They permitted the seating of a tainted jury and failed to make the case for Libby’s exoneration.  

The jurors who have spoken about convicting Scooter Libby generally sympathized with him. They might have been receptive to arguments making the case that Libby was telling the truth to the grand jury and the FBI, as he recalled it, and that the truth was that the whole case stemmed from a CIA campaign against President Bush’s Iraq policy. That is the case that Libby attorney Ted Wells should have made. The judge may have resisted this kind of defense, but it would have been worth a try and desirable from the standpoint of setting the record straight and eliminating media-created misperceptions about the case.   

Two jurors, Denis Collins and Ann Redington, have said they would have no problem if Libby were to be pardoned. This is just what many conservative columnists and publications are calling for. The Wall Street Journal editorial page and National Review have called for a pardon, as did the syndicated columnist Charles Krauthammer, and journalist Ken Timmerman. The merits of the case for pardon are strong, but a pardon would not be viewed as exoneration. Indeed, it might be viewed by the MSNBC types as evidence of a cover-up.  

However, an exoneration could occur if the guilty verdict is appealed and the appellate courts overturn the conviction. That could lead to another review of the case and a determination that Libby committed no crime and did nothing wrong. In the end, the media, led by Tim Russert of NBC News, could still end up with egg on their faces.  

There’s no doubt that a pardon would create a political firestorm. Harry Reid, the Democratic Senate Majority Leader, says that President Bush “must pledge not to pardon Libby for his criminal conduct.”  

Criminal Behavior?  

But many people would take issue with the notion that, without an underlying crime as the basis for the prosecution, comments made to federal authorities about what reporters knew or said about Valerie Plame’s affiliation with the CIA would rise to the level of “criminal conduct.”

The jury verdict was based on the evidence, or lack thereof, before them. Did Libby lie to the grand jury and the FBI investigators, was he just confused or mistaken, or was he, in fact, being truthful when he said he had learned about Valerie Plame’s affiliation with the CIA from NBC’s Russert? The jury, after nearly 10 days of deliberations, accepted most of Special Prosecutor Patrick Fitzgerald’s allegations.  

On one level, it is certainly true that the jury believed Russert, rather than Libby. But the jury was clearly confused, as demonstrated by questions put to the judge during the long deliberations. Pressure eventually got them to reach a verdict.  

For his part, Russert had denied that he told Libby that Plame worked for the CIA. But Russert used his position at NBC News, in the run-up to the trial, to prejudice the jury pool. He covered and commented on the Libby case before, during and after the trial. This conduct was improper and unethical and a clear-cut violation of the code of conduct of the Society of Professional Journalists. Bluntly speaking, Russert was orchestrating pre-trial publicity on his own behalf, in order to make the jury believe his version of events. On the other hand, Libby stayed silent, on the advice of his lawyers. 

To make matters worse for Libby, it turned out that one of the jurors, Denis Collins, a registered Democrat and former Washington Post reporter who complained about White House aide Karl Rove not being charged in the case, is an old neighbor of Russert’s and wrote a book about the CIA and the intelligence community. Collins, who also knew or worked with several other media figures, including Bob Woodward, then wrote about the case on the liberal HuffingtonPost website. This is a notorious outlet for liberal misinformation that has been after Bush and Cheney from the get-go.  

Who Is Denis Collins?  

The entire process makes the suspiciously-minded wonder if Collins might have been a plant who was supposed to get the jury to convict Libby of something, in order to create the public perception that the media were right about the case from the start. According to this theory, the next step in the process is to impeach Vice President Cheney, or get him to resign, and then President Bush. That seems to be where MSNBC and the Huffington Post are heading. Perhaps Collins simply saw the trial as an opportunity to make a name for himself.  What is perfectly clear is that Collins should never have been seated on the jury. It was clearly a mistake to let him sit in judgment of Libby.  

It is also clear that a presidential pardon at this point would only add to the public misperception that there was an administration cabal behind Libby when the real conspiracy emanated from the CIA.  

The jury was so prejudiced in favor of the media that it found Libby guilty of lying about his conversation with Time magazine reporter Matt Cooper. But Cooper, a very unconvincing witness, couldn’t prove that his version of his conversation with Libby was correct. Cooper didn’t email his editor about it and did not write about it. Six other reporters, including Bob Woodward, Walter Pincus and Glenn Kessler of the Post, David Sanger of the New York Times and Evan Thomas of Newsweek, spoke with Libby and said that he never told them anything about Wilson’s wife. This testimony proved that Libby was not out to get Plame or her husband Joe Wilson, sent by the CIA on her recommendation to probe an Iraq-uranium link.  

One of many questions is why, after Libby had acknowledged to the FBI and the Grand Jury that he first learned of Plame’s CIA affiliation from Cheney, would he then lie to them about how he learned it. He said that Russert asked him, “did you know that Ambassador Wilson’s wife works at the CIA?” Libby then told the grand jury that when Russert asked him that, “I thought this is something…I was first learning.” Russert says he never asked that, because he didn’t know it at that time.  

What we now know is that, based on the testimony of various witnesses, Libby was told about Plame by several different people in the Administration and had different conversations about her. It’s also clear that he was mostly a recipient of information, rather than someone who provided it, and his purpose in talking to the press was to set the record straight about the vice-president not playing a role in Wilson’s trip to Africa. The blame for that junket was at the CIA.  

If Special Prosecutor Fitzgerald had wanted to charge someone with making inconsistent or incomplete statements, he could have picked on Russert or some other media figure. In a previous column, we documented how Russert, as well as New York Times reporter Judith Miller, had their own faulty memories. Andrea Mitchell, chief foreign correspondent for NBC, had stated that Plame’s CIA affiliation was “widely known among those of us who cover the intelligence community” but later claimed that she had misspoken and was confused. That was a very convenient memory lapse.  

The New York Daily News ran a headline after the verdict, “The Fall Guy.” This was an unfortunate phrase used by Libby’s own lawyer, Ted Wells. 

The phrase took on a life of its own. At MSNBC, the get-Cheney network, correspondent David Shuster wondered whether Libby would turn on Cheney to get a lighter sentence. But how do they think Libby could turn on Cheney? Would he say that Cheney broke a law when he asked Libby to rebut Joe Wilson’s accusations? Nothing that Cheney did was against the law. In fact, everything he did was consistent with getting out the truth about Plame being behind her husband Joe Wilson’s trip to Africa to investigate the Iraq-uranium connection. And behind Plame was her employer, the CIA.  

The CIA Role

This is the part of the story, of course, that Fitzgerald didn’t pursue. He had determined that no crime was committed when deputy secretary of state Richard Armitage told Bob Woodward and Bob Novak that Wilson’s wife worked for the CIA, and that she played a role in sending him to Africa. But Fitzgerald decided to pursue the matter of who told what to whom during the subsequent investigation, apparently to justify his appointment in the first place. But the real story was why he was appointed. And that stemmed from a CIA complaint to the Justice Department about the public disclosure of Plame’s CIA affiliation. The CIA was protecting Plame, under the Intelligence Identities Protection Act, when she didn’t deserve any such legal protection. And the CIA knew it.

Fitzgerald knew it too. That’s why he went after the complex and confusing matter of what Libby told various reporters about Plame, and what they told Libby. In order to bring his case, he had to convince the jury that he knew what Libby was thinking about, and what he knew at any given time, when he was talking to the media. Libby, on the advice of his attorney, didn’t get on the stand to rebut any of this. This was a critical mistake.

What’s more, Fitzgerald’s repeated and misleading references during the trial to Plame being “covert” or “classified” unfairly prejudiced the jury. In effect, he was carrying water for the CIA, which was anxious from the start to divert attention from its role in the ill-conceived Wilson trip. This kind of talk on the part of Fitzgerald, according to Victoria Toensing, who helped draft the Intelligence Identities Protection Act, could serve as the basis for an appeal of Libby’s guilty verdict. Toensing noted that, even if Plame’s job description were classified, providing her name and information about her agency affiliation would not constitute a criminal act.  So such talk by Fitzgerald was completely out of place in the Libby trial.

Plame’s CIA connection was pretty much an open secret among Washington elites, with the only mystery surrounding what exactly she did at the agency. The work apparently was a desk job in the field of weapons of mass destruction. There was some attention paid to a dummy company she supposedly ran, even while she was making a $1000 political contribution to Al Gore’s campaign for president in 2000, but she was certainly not a covert CIA officer risking danger and running agents and networks around the world. After being “outed,” she emerged, with her husband, as partisan Democrats anxious to defeat Bush in 2004. Still, most of our media portrayed them as the victims.

To their credit, the editorial page editors of the Washington Post saw through their ruse and seemed to understand what most of this case has been about.

In the lead editorial the day after the verdict, the paper criticized Libby and the Bush administration for their handling of the investigation, but saved their harshest criticism for Wilson, and even contradicted points made on their news pages that very day. Wilson, they wrote, “claimed to have debunked evidence that Iraq was seeking uranium from Niger; suggested that he had been dispatched by Mr. Cheney to look into the matter; and alleged that his report had circulated at the highest levels of the administration.” But “all of these claims were false,” the Post said, and in fact he was “recommended for the Niger trip by Ms. Plame, his wife.” That is exactly what White House officials were telling the press. It is what the Senate Intelligence Committee confirmed.

The Post editorialists stated that “The trial has provided convincing evidence that there was no conspiracy to punish Mr. Wilson by leaking Ms. Plames’ identity—and no evidence that she was, in fact, covert.” The editorial also said that once Fitzgerald had determined that Plame’s name had actually been leaked to columnist Bob Novak and reporter Bob Woodward by Armitage, an opponent of the Bush policy on Iraq, the investigation should have ended.

Of course, it didn’t end there, and that is where the Post fails to follow up. It is clear to any serious observer of this case that the CIA’s role in getting Fitzgerald on the case deserves an investigation of its own. But who has the courage to take on this permanent and corrupted bureaucracy?

The case, the Post said, was not about Iraq policy, and that’s an important point as well. Yet the case has been exploited by those on the left to suggest that the guilty verdict against Libby means that Joe Wilson was right after all.

Right From the Start

To the contrary, it is the Bush Administration that was right then and right now. Bush was correct in making the charge in his State of the Union address that Saddam Hussein’s Iraq was seeking uranium from Africa. He cited British intelligence as his source, but Wilson had come back from Niger, whose only major export is uranium, also confirming that Iraq had met with a trade delegation from that Africa country. So Wilson’s own report buttressed the President’s case! Wilson told the press the opposite and even stated in his misnamed book, The Politics of Truth, that his wife didn’t play any role in sending him to Africa because if she had, it would have been a violation of federal nepotism laws. It was a clever case of misdirection that the Washington Post eventually saw through.

Ironically, the entire Joe Wilson affair, including the Libby trial, confirms that the Bush Administration was not only mostly correct in its appraisal of Saddam Hussein’s aggressive intentions, but was correct in trying to rebut Joe Wilson’s misinformation, and setting the record straight about the role of his wife at the CIA. That’s why the Libby guilty verdict is so difficult to understand, based on an objective analysis of the case. Simply put, Libby never had any reason to lie because he knew the facts of the case as they related to what Wilson and the CIA were doing to undermine the Bush Administration.

For the record, in terms of the actual justification of the war, Clarice Feldman wrote an article noting that the National Intelligence Estimate (NIE) of October 2002 said:

“Although we assess that Saddam does not yet have nuclear weapons or sufficient material to make any, he remains intent on acquiring them. Most agencies assess that Baghdad started reconstituting its nuclear program about the time that UNSCOM inspectors departed — December 1998.”

The NIE specifically addressed claims of Iraq seeking uranium from Africa:

“A foreign government service reported that as of early 2001, Niger planned to send several tons of ‘pure uranium’ (probably yellowcake) to Iraq. As of early 2001, Niger and Iraq reportedly were still working out arrangements for this deal, which could be for up to 500 tons of yellowcake. We do not know the status of this arrangement.

“Reports indicate Iraq also has sought uranium ore from Somalia and possibly the Democratic Republic of the Congo. We cannot confirm whether Iraq succeeded in acquiring uranium ore and/or yellowcake from these sources.”

And finally, the NIE offered these conclusions with “high confidence”:

“Iraq is continuing, and in some areas expanding its chemical, biological, nuclear and missile programs contrary to UN resolutions.

“We are not detecting portions of these weapons programs.

“Iraq possesses proscribed chemical and biological weapons and missiles.
Iraq could make a nuclear weapon in months to a year once it acquires sufficient weapons grade fissile material.”

That is the information that both Congress and the White House had, as well as the 50 nations that signed on with us to go to war.

The work of the Iraq Survey Group, headed by Charles Duelfer, was given a lot of publicity when it declared there were no stockpiles of weapons of mass destruction. But it also said that, “Saddam aspired to develop a nuclear capability, in an incremental fashion…but he intended to focus on ballistic missile and tactical chemical warfare (CW) capabilities.”

So it turns out that Saddam was an emerging chemical and nuclear threat to the region and the world. That’s what the Bush Administration told us. The only thing holding Saddam back were the U.N. sanctions, which were in danger of being lifted. War was the only option in terms of making sure that Saddam didn’t become a nuclear weapons threat.

What’s Next?

We thought Libby would be found not guilty or that the trial would produce a hung jury. We didn’t anticipate that Libby would be so poorly served by his attorneys and that the jury would be so tainted by pre-trial publicity and would include a former Post reporter with questionable ongoing associations with the Fourth Estate.

The verdict was such a miscarriage of justice that, in our view, Libby’s interests can only be served by a time-consuming and expensive legal process that will see the judgment completely overturned. Libby’s legal defense trust will need a lot of money to get the exoneration that he deserves and put the spotlight back on the media.

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About the author

Roger Aronoff and Cliff Kincaid
Roger Aronoff is the Editor of Accuracy in Media, and can be contacted at roger.aronoff@aim.org. Cliff Kincaid is the Director of the AIM Center for Investigative Journalism and can be contacted at cliff.kincaid@aim.org.