As usual, the cover-up becomes the crime

Charges against Libby arise not from leak, but from testimony to grand jury about leak


White House Indictment


WASHINGTON -- Sometimes, a witness says he just can't remember. It might well be a convenient memory lapse, but it is hard to prove forgetfulness is a crime.

I. Lewis "Scooter" Libby Jr., however, is accused of something far more elaborate. Special Prosecutor Patrick J. Fitzgerald alleges Libby made up a story to deceive investigators and then told the lie under oath to the grand jury.

Telling a false story to a federal prosecutor who knows the facts is a sure ticket to an indictment, legal experts said yesterday.

"That's unacceptable. You can't lie, make up conversations that didn't happen and expect you are not going to be charged with a crime," said George Washington University law professor Stephen Saltzburg.

According to the indictment, Libby told investigators that he first learned from news reporters in July 2003 that the wife of a Bush administration critic, Joseph C. Wilson IV, worked for the CIA.

In fact, Libby had talked in June with officials at the CIA and the State Department, and with Vice President Dick Cheney about Wilson's wife, Valerie Plame, and her employment at the CIA, according to the indictment.

On July 6, Wilson wrote an op-ed piece in The New York Times that cast doubt on President Bush's statement that Iraq might have purchased yellowcake uranium from Niger.

In the next few days, Libby spoke with NBC's Tim Russert, Time magazine's Matt Cooper and New York Times reporter Judith Miller. The indictment says all three contradicted Libby's version of their separate conversations with him.

Russert told the grand jury that he and Libby did not discuss Joseph Wilson's wife when they spoke on July 10 or July 11 and that he did not learn her name until it was published in a Robert Novak column on July 14.

But Libby testified that Russert "said to me, `Did you know that Ambassador Wilson's wife ... works at the CIA?' And I said no, I don't know that. And then he said yeah, all the reporters know it. And I said again, I don't know that. ... I was struck by what he was saying in that he thought it was an important fact, but I didn't ask him any more about it."

Later that week, Novak disclosed that he had learned from "senior administration officials" that Wilson's wife was a CIA operative.

Nonetheless, when federal investigators began looking into who leaked Valerie Plame's name to the news media, Libby told them he learned of her from news reporters. He repeated the same story when called before the grand jury in 2004. Yesterday, he was indicted for lying and obstruction of justice.

"When citizens testify before grand juries, they are required to tell the truth," Fitzgerald said.

The Libby indictment follows an unofficial Washington rule that the cover-up becomes the crime. It is similar to the insider-trading case that snared Martha Stewart. She, like Libby, was not charged with the underlying crime but rather with telling a false story to investigators.

"The one ironclad rule of white-collar crime is you get indicted not for what originally did but for what you did after the investigation started," said Columbia University law professor John C. Coffee Jr. "It is much easier to prove that you lied to investigators than to prove you were the original source" of the leak.

The indictment also makes clear how critical the journalists' testimony is to Fitzgerald's case. Cooper refused to testify for nearly a year; Miller spent 85 days in jail until Libby granted her a waiver from her pledge of confidentiality.

Fitzgerald would have no case "without the journalist witnesses. We are in an interesting new world," said Rory Little, a former federal prosecutor who teaches criminal law at the University of California's Hastings College of Law in San Francisco.

"Why would a guy as smart and as experienced as Libby go in and lie? One reason is he was still living in the world where journalists were not compelled to testify."

Little cautioned that it was possible that Russert gave an inaccurate account and that Libby would be cleared. He added, however, that if the allegations are true and Libby made up his story "out of whole cloth, it is the hubris of a high-ranking government official who doesn't believe it will come out and if it does, there is deniability. If you want to spread this around, you talk to one reporter and then call another reporter and say this is what I heard. The allegation reads as a vicious, cynical use of the media."

Fitzgerald did not explain why he did not indict Libby for violating the 1982 law that makes it crime to disclose the identify of an undercover CIA agent. One possibility is that he could not prove Libby knew that Wilson's wife was an undercover agent.

Nonetheless, criminal law experts who read the indictment said it makes a strong case against Cheney's chief of staff.

The indictment "is very well wrought," said Stanford University criminal law professor Robert Weisberg.

"Fitzgerald made sure that he could establish such a consistent discrepancy between what is now known to be true and what Libby repeatedly said."

David G. Savage and Henry Weinstein write for the Los Angeles Times.

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