November 7, 2005


A Tough Case? No Lie: It's Never Easy To Prove Perjury (Michael N. Levy, November 6, 2005, Washington Post)

Two massive hurdles stand in Fitzgerald's way. First, the indictment's 22 pages fundamentally boil down to allegations that Libby lied, both to FBI agents and to the grand jury, about what happened during conversations with two different reporters: one with NBC's Tim Russert on July 10 or 11, 2003, and one with Time's Matthew Cooper on July 12, 2003. In the absence of a tape recording of these private, off-the-record conversations, the prosecutor's hurdle will be to prove beyond a reasonable doubt that the reporters' recollections of these conversations represent what actually happened; in other words, that Libby's testimony was false. This could easily amount to little more than a "he said/she said" swearing contest, and juries justifiably often demand far more from prosecutors before deciding to send someone to prison.

Second, even if Fitzgerald is able to persuade the jurors to accept Russert's and Cooper's recollections of events, the fact that Libby testified falsely does not, by itself, make him guilty of anything. Under the law, Libby cannot be convicted of perjury, making false statements or obstruction of justice unless the prosecutor can persuade the jury beyond a reasonable doubt that Libby knew he was lying at the moment those words left his mouth and that he uttered those words with the intention of deceiving the FBI and the grand jury. It's not nearly enough to prove that Libby got it wrong. Fitzgerald's team must prove that he did it on purpose. [...]

The false statements that Fitzgerald has zeroed in on, however, are very narrow and specific. The indictment alleges that Libby lied to FBI agents and the grand jury about several matters: stating that Russert had asked him if he was aware that Wilson's wife worked for the CIA; that Russert had told him that "all the reporters knew it;" and thathe was surprised by Russert's statements because, at that time, he did not recall knowing that Plame worked at the CIA. But Libby never discussed Wilson's wife with Russert during this conversation on or about July 10, 2003, according to the indictment. The indictment goes on to allege that Libby lied again to the FBI and the grand jury about his conversation with Cooper. According to Libby's accounts to the FBI and the grand jury, he told Cooper that administration officials were hearing from reporters that Wilson's wife worked for the CIA, and that he did not know if this was true. According to the indictment, all Libby did was to confirm, without qualification, that he had heard that Wilson's wife worked at the CIA.

The discrepancy as regards the Cooper conversation in particular is so minor that calling it intentional seems absurd. On the other hand, he certainly appears to have been lying about his conversation with Tim Russert.


ANYONE who knew the late Sen. Daniel P. Moynihan has to wonder what he'd make of the CIA leak case.

The agency was one of his pet targets. Moynihan, a true Washington wise man, would get livid when he fumed about the CIA's "unbroken record of missing what's happening."

In a 1979 Newsweek essay, he accurately predicted that the Soviet Union would collapse in the '80s. The CIA, dead wrong, had no clue of the coming collapse.

At his monthly "tutorials" for New York reporters, Moynihan would recount with outrage that in 1987, just two years before the Berlin wall fell, the CIA was still claiming East Germany had a higher GDP than West Germany — when any cab driver in Berlin could have told you that was ridiculous. [...]

But the CIA also, as Moynihan noted wryly to columnist Mary McGrory, has a history of covering its butt by coming up with "revisionist rumbles" to claim it had really gotten things right somewhere, buried in a secret footnote. Would Moynihan see the leak case as a familiar tale of the agency again getting things wrong — and looking for someone else to blame? [...]

When the White House ineptly tried to counter Wilson's tall tales by revealing that he wasn't an expert and his wife set up the trip, the CIA demanded a criminal probe — and then itself broke the law by leaking that news.

It now appears the CIA's entire referral was dishonest: The agency knew Plame wasn't a covert agent under the terms of the law, since she hadn't had an overseas posting in the past five years — and obviously neither she nor the CIA was taking proper precautions to protect her identity. Call it disinformation.

That almost certainly is why no charges have been filed against the mysterious X who first leaked Mrs. Wilson's identity to columnist Robert Novak, who published it. Since Mrs. Wilson wasn't a covert agent, she couldn't be outed. And that's why Libby is accused of lying to investigators but not of outing Wilson's wife.

Posted by Orrin Judd at November 7, 2005 11:03 AM

American Thinker's been looking into Joltin' Joe's background:

Hot off Lucianne

Joseph A. Wilson IV: The French Connection
November 7th, 2005

There are an amazing number of French fingerprints all over the Plame-Wilson affair. While it is not easy to penetrate the dark fog of lies, there is a highly consistent pattern pointing to French government involvement with a Watergate-style assault on the American Presidency, fronted by Ambassador Joseph C. Wilson IV.

In 2002 French intelligence forged the notorious document claiming that Saddam tried to obtain Niger uranium. The Italian middle man,Rocco Martino, later confessed to French involvement in open court. Rocco Martino might sound like a small-time mafia hood from the Sopranos. Actually, he works at times for Italian military intelligence. The truth about the French connection came out when Martino confessed in court that the French had given him the forged document to peddle to various intelligence agencies. The Italians and French have had a furious war of words ever since then about who was responsible for the forgery.


Anyone care to guess how or where he met his 1st 2 wives?

Posted by: Sandy P at November 7, 2005 11:35 AM

I'm not so sure that Fitz can prove that Libby perjured himself in re Russert.

Russert's subsequent discussion of their conversation is worded very carefully iirc.

He refers to not knowing Wilson's wife's "name", and that she was an "operative." Of course that does not preclued him knowing that Wilson's wife, whose "name" he didn't know, worked for the CIA -- tho he might not know she was "an operative".

Likewise, we know that Libby was calling NBC to complain about an MSNBC story. NBC hasn't said what the story they ran was about, but it seems likely given the date of the call that it concerned Wilson. Is is hard to believe that given what Libby called to complain about that Wilson's wife came up?

Mickey Kaus at Slate and Tom Maguire, and his commentators, at Just One Minute have been all over this angle.

Posted by: Jim in Chicago at November 7, 2005 12:08 PM

Thought I saw somewhere that Russert's wife, who works at Vanity Fair, was involved in the Wilson/Plame Vanity Fair article and picture. If true Russert may have knowledge about Wilson/Plame than he is letting on.

Posted by: AWW at November 7, 2005 12:30 PM

The Vanity Fair thing happened well after the conversation w/ Libby, so that's a non-starter. That being said, I'm not sure why Libby's word is any less valid than Russert's, so I don't think there's any "certainty" about it. If he did lie, then lock him up, but I'm not convinced he did.

Posted by: Timothy at November 7, 2005 1:07 PM

There's also the possibility the Russert was informed about Plaime from a source inside NBC News, such as Andrea Mitchell, and was simply using the old reporter's trick of "playing dumb" about what he actually did know during his conversation with Libby, in order to get him on record about her identity (which would be a more solid confirmation than the word of Mr. Greenspan's wife). In that case, Libby's lawyers might bypass Russert at the outset and go straigh to someone like Mitchell (or whoever) in order to get them to confirm that Tim knew more than he was letting on when he talked to Scooter.

Posted by: John at November 7, 2005 3:00 PM

OJ, have you ever reviewed Moynihan's SECRECY? It was one of his last books (if not his last). Very relevant today. It talks about the failure of the culture of government secrecy in providing actual security.

Posted by: Chris Durnell at November 7, 2005 5:31 PM

An extremely difficult prosecution, since it turns, not on what the defendant knew, but what he knew about how he came to know what he knew.

If I testify under oath that John's car is red, and it is proven that I knew it to be black, that is purjury.

Suppose my testimony is that Thomas told me that John's car is red, and that it is proven that George told me that. Perjury is not made out by those facts alone, unless the negative of Thomas having told me is also proven, not an easy burden.

Now the pitfall here is that the trial may be held before a jury biased against the President and by association, the defendant, thus creating the possibility of a legal lynching, sort of like the O.J. case (the other O.J.) in reverse.

Posted by: Lou Gots at November 7, 2005 8:07 PM

Considering their limited number of past successes with "dirty tricks" in foreign countries, perhaps the CIA folks figured they'd be better off, and have a chance at success for once, if they were limited themselves tooperating in a country in which they had some expertise and knowledge of the local politics...

Posted by: Raoul Ortega at November 7, 2005 8:33 PM

"he certainly appears to have been lying about his conversation with Tim Russert."

If you credit Russert's version. This is all he said, she said. And the shes are a pretty rum lot.

Posted by: Robert Schwartz at November 7, 2005 11:18 PM


Read it, not reviewed it yet. I don't think any thing should be kept secret--open source it all.

Posted by: oj at November 7, 2005 11:24 PM


Who that's not a fanatic doesn't?

Posted by: oj at November 7, 2005 11:25 PM

OJ: This time Russert will be answering the questions not asking them. And they will be fastballs, not soft stuff like he is used to.

Make up my bed mama, they are throwing curveballs.

Posted by: Robert Schwartz at November 8, 2005 1:53 AM