A Grave Indictment, but Grave Questions Remain

If a senior White House official leaks classified information that identifies an undercover CIA officer to reporters in order to undermine a critic of the administration, he is not entitled to lie about it to FBI agents and a grand jury charged with the task of determining if such a leak violated the law. That was special counsel Patrick Fitzgerald's message, as he held a dramatic press conference at the Justice Department to explain the five-count indictment his grand jury issued against I. Lewis "Scooter" Libby, chief of staff to Vice President Dick Cheney. "This is a very serious matter," he insisted.

The indictment charged Libby with two counts of making false statements to the FBI, two counts of committing perjury (by lying twice to the grand jury) and one count of obstruction of justice. All these charges referred to Libby's account of how he came to learn of Valerie Wilson, the undercover CIA official who was married to former ambassador Joseph Wilson, a White House critic, and who was outed in a July 14, 2003 Bob Novak column. During interviews with FBI agents and in his testimony before the grand jury, Libby--who, before the Novak column was published, told Judith Miller of The New York Times and Matt Cooper of Time that Wilson's wife worked at the CIA--repeatedly claimed that he was merely passing along information he had heard from other reporters. For instance, on March 5, 2004, Libby, answering questions about a July 12, 2003 conversation with Cooper, told the grand jury:

All I had was this information that was coming in from the reporters....I said, reporters are telling us that [about Valerie Wilson's employment at the CIA]. I don't know if it's true. I was careful about that because among other things, I wanted to be clear I didn't know Mr. Wilson. I don't know--I think I said, I don't know if he has a wife, but this is what we're hearing.

On March 24, 2004, Libby, in another appearance before the grand jury, said:

All I had was that reporters are telling us that, and by that I wanted them to understand it wasn't coming from me and that it might not be true....So I wanted to be clear they [the reporters to whom he spoke] didn't, they didn't think it was me saying it. I didn't know if it [the information about Valerie Wilson] was true, and I wanted them to understand that.

But, according to the indictment, Libby had actively gathered information on Joseph Wilson and his wife after newspaper stories appeared about a trip that Joseph Wilson had taken to Niger for the CIA in February 2002, during which he had concluded that the allegation that Iraq had been shopping there for weapon-grade uranium was highly dubious. In May 2003, New York Times columnist Nicholas Kristof, using Wilson as a source, wrote about this trip without naming Wilson. The Washington Post did the same the following month. And on July 6, 2003, Wilson published an op-ed piece in the Times describing his mission to Niger and his findings, which undercut the Bush administration's use of the Niger allegation in making a case for war.

In late May 2003--after the first Kristof column and before Wilson went public with his op-ed--Libby asked Undersecretary of State Marc Grossman for information on the unnamed ambassador's trip to Niger. Grossman ordered the State Department's Bureau of Intelligence and Research to prepare a report on the ambassador and the trip and subsequently told Libby that Wilson had been the ambassador. On June 9, 2003, according to the indictment, classified CIA documents that covered Wilson and the Niger trip (without mentioning Wilson by name) were faxed from the CIA to Libby. Two or three days later, Grossman told Libby, the indictment says, that "Wilson's wife worked at the CIA." About that time, Libby spoke with a senior CIA officer, who also informed Libby that Wilson's wife worked at the CIA. Also about the time, the indictment states, Cheney told Libby that Wilson's wife was employed at the CIA in the counterproliferation division. This is an intriguing fact. Usually in Washington, principles ask their subordinates to dig up information for them. Apparently, Cheney was doing his own fact-finding on the Wilson front. The indictment does not explain what Cheney was up to or why. It notes that "Libby understood that the Vice President had learned this information from the CIA." Cheney had a back-channel behind his back-channel (Libby).

Libby was not done gathering information on Joseph and Valerie Wilson. On or about June 14, 2003--still weeks before Wilson's op-ed article appeared--Libby, according to the indictment, met with a CIA briefer and "discussed with the briefer, among other things, 'Joseph Wilson' and his wife 'Valerie Wilson' in the context of Wilson's trip to Niger." (Fitzgerald's use of quotation marks in this passage of the indictment suggests he has notes from this meeting.)

Libby, as depicted in the indictment, was aware of the sensitive nature of the material he had collected on the Wilsons. When an assistant asked if information on Wilson's trip could be shared with the press to rebut the charge that Cheney had sent Wilson to Niger (an allegation never made by Wilson, who had said that his trip was a response to a request that had come to the CIA from Cheney's office), Libby told his aide that he could not talk about this topic on a nonsecure telephone line.

Yet days later--on June 23, 2003--Libby met with Judy Miller and told her that Wilson's wife might work at the CIA. And the day after Joseph Wilson's op-ed piece appeared, Libby had lunch with White House press secretary Ari Fleischer and informed him that Wilson's wife worked at the CIA, adding that this was not widely known. That week, Libby twice more discussed Valerie Wilson with Miller. And on July 10 or 11, 2003, Libby, according to the indictment, spoke to a senior White House official--identified as "Official A" and possibly White House aide Karl Rove--who told Libby that earlier in the week he (Official A) had discussed Wilson's wife and her CIA employment with Novak, who would be writing a column about her.

If the indictment is correct, Libby was not only in the loop regarding Valerie Wilson and her connection to the CIA; he had helped to create it. Yet Fitzgerald's indictment quotes Libby declaring over and over he only had heard--and passed along--scuttlebutt received from other reporters. To prop up this cover story, Libby told the FBI agents that it had been NBC News' Tim Russert who had said to him that Valerie Wilson worked at the CIA and that "all the reporters knew it." Russert told the grand jury that he had not discussed Wilson's wife with Libby and that in this particular conversation Libby had complained to him about an MSNBC reporter (who goes unnamed in the indictment).

Libby appears to have concocted a rather clumsy cover story, especially in that he pointed to a specific reporter as his source--Russert--for the information on Valerie Wilson that he shared with Miller and Cooper. A reasonable assumption is that even if Libby was not a source for the Novak column that identified Valerie Wilson, he was attempting to distance himself--and perhaps Cheney--from the administration's effort to find and leak information on Wilson and his wife (even if it might be classified) to undercut Wilson's criticism. During the press conference, Fitzgerald noted that Libby was the first official who talked to a reporter about Valerie Wilson when he discussed her with Miller on June 23, 2003.

Fitzgerald's indictment of Libby seems rather tight. Libby said he knew nothing about Wilson's wife except what he had heard from reporters. Fitzgerald has compiled what looks like solid evidence that Libby was actively collecting information on Joseph Wilson and his wife. And if this case goes to trial, possible witnesses for the prosecution include Russert, Fleischer, Grossman, Libby's principle deputy, a CIA briefer, Official A, and Cheney. Libby could be sentenced up to 30 years if found guilty of all counts. Libby, the first senior White House official to be indicted since the Ulysses Grant administration, is in serious legal trouble.

Is anyone else? Fitzgerald's grand jury expired on Friday. But he has asked the presiding judge to keep a grand jury available for him because he has not completed his investigation. His probe, he said at the press conference, is "not quite done." Then he quickly added, "But I don't want to add to a feverish pitch. It's very, very routine that you keep a grand jury available for what you might need." He noted that the "substantial bulk of the work" has been completed. But he said, "Let's let the process take place."

How to read this? Not over, but mostly finished. Fitzgerald seemed a man who was rather close to the end of a long and tough endeavor, and he yielded no hint of any indictments to come. He certainly did not signal or say, "Stay tuned."

Does that mean this leak investigation could end only with Libby indicted--not for participating in the leak but for lying about his pre-leak actions? That's possible. And Fitzgerald, sticking to the rules of grand jury investigations, refused to reveal any information about the case that was not included in the indictment. Who were Novak's sources for the leak? Fitzgerald wouldn't say. Is Official A a new name for Mr. X--the term used by reporters to refer to Novak's original source? Fitzgerald didn't say. Might Rove be Official A? Fitzgerald didn't say. Why did the leak refer to Valerie Wilson by her maiden name of Plame? Fitzgerald didn't say. What sort of cooperation did Fitzgerald receive from Novak (who presumably spilled all to Fitzgerald, otherwise he would have landed in the slammer like Miller)? Fitzgerald didn't say. Was Cheney in cahoots with Libby regarding the latter's false testimony? Fitzgerald didn't say. How much damage was done to the CIA and its operations by the leak? Fitzgerald didn't say. What about George W. Bush? What did he know about Rove's involvement in the leak and when did he know it? No reporter at the press conference even asked about this.

Fitzgerald did not share much beyond the information he had to disclose in order to indict Libby. He did declare that "the fact that Valerie Wilson was a CIA officer was classified...but it was not widely known outside the intelligence community" and that "her cover was blown" by the Novak column. (So much for the goofy rightwing conspiracy theory that I colluded with Joseph Wilson after the Novak column to out Valerie Wilson as an undercover CIA operative. If you don't know about that, don't ask.) And he passionately countered the pre-indictment criticism from Republicans and others who argued that bringing perjury and obstruction of justice charges--rather than accusing anyone of violating the Intelligence Identities Protection Act or other laws that apply to leaking classified information--would be a cheap shot or an act of prosecutorial overreaching. He explained that he and his investigators were assigned the job of investigating the unauthorized disclosure of classified information and determining if any laws--not one particular statute, such as the Intelligence Identities Protection Act--were violated. In such an inquiry, he said, "fine distinctions" are critical, and consequently, it is "important that the witnesses who come before a grand jury, especially the witnesses who come before a grand jury who may be under investigation, tell the complete truth." In this probe, that included Libby.

Fitzgerald indicated he had considered the possibility of charging leakers with violating the Espionage Act, which makes it a crime for government officials to disseminate classified information--to unauthorized individuals. Using the Espionage Act in this manner, some media and legal experts have claimed, would lead to an Official Secrets Act, but Fitzgerald said he didn't accept that analysis. Still, he called this act "a difficult statue to interpret." And he chose not to indict anyone--yet--for violating it. He also defended his choice to pursue Miller and Cooper and to seek Miller's imprisonment, citing a special need for their testimony. ("I do not think that a reporter should be subpoenaed anything close to routinely," he said.) When asked about detractors who have accused him of being partisan, he replied, "for which party?"

Fitzgerald knows far more than what is in the Libby indictment. But the American public may never learn what he has uncovered. There might be no further indictments, and Fitzgerald dismissed the idea of writing a final report. He said that he does not have the authority to issue such a document--and that he does not believe a special counsel should have that authority. Independent counsels used to have the obligation to craft a final report that detailed their investigation and findings and explained decisions to prosecute and not prosecute. But the independent counsel law expired, and Fitzgerald is operating as a special counsel pursuant to Justice Department rules that do not provide for the production of a final report and that do compel prosecutors to keep grand jury material that is not used for an indictment or trial confidential. Feeling the reporter's pain, Fitzgerald remarked, "I know that people want to know whatever it is we know....We just can't do that....We either charge someone or we don't talk about them."

Which means that after the government has paid for a two-year investigation, the public may be left in the dark about much of what happened in the leak case. The leakers may never be held accountable. Rove's role, Bush's knowledge, Cheney's potential involvement--all of that could remain a secret, even though Fitzgerald has apparently dug deep and unearthed much of the tale. When a reporter asked Fitzgerald if he had learned how Washington works, he replied, "Yes," and said no more.

The Libby indictment does stand as a significant development. Libby was an influential aide for an influential veep in an administration that has often been accused of lying to get its way--such as during the run-up to the invasion of Iraq. And he has been charged with putting himself above the law and undermining an investigation initiated by his administration's Justice Department. On January 22, 2001, Bush, while swearing in the new White House staff, said, "We must remember the high standards that come with high office. This begins with careful adherence to the rules. I expect every member of this administration to stay well within the boundaries that define legal and ethical conduct. This means avoiding even the appearance of problems. This means checking and, if need be, double-checking that the rules have been obeyed. This means never compromising those rules....We are all accountable to one another. And above all, we are all accountable to the law and to the American people."

Libby, who quickly resigned after the indictment was released, has fallen. But Rove, who also leaked classified information by passing information on Wilson's wife to Cooper and Novak, has violated White House rules and Bush's self-proclaimed standards, if not the law itself. He has not been held accountable yet, and that task may be beyond Fitzgerald's reach. Nor have Bush and Rove explained why the White House misled the public when it denied Rove and Libby were involved in the leak. Neither have accepted responsibility for that. As for Libby, Bush, in a brief statement, said he was "saddened" by the news of his indictment. He said nothing about the ethical standards of his White House.

In politics and policy, lying is not always illegal. And it's easy to see why officials in this White House might think they can escape being held accountable for prevaricating. But Libby seems to have lied to the wrong guy in the wrong forum. "Truth is the engine of our judicial system," Fitzgerald declared while explaining the gravity of the Libby indictment. And this is a grave indictment. It just doesn't answer many grave questions that still remain in the CIA leak affair.

Cross-posted at: www.davidcorn.com