Sifting through rubble of `Scooter' Libby trial

March 11, 2007

The following dialogue between Byron York of National Review and Jeff Lomonaco of the University of Minnesota on the fallout from the I. Lewis "Scooter" Libby trial originally appeared on


In the wake of the Libby guilty verdicts, many Democrats are talking about the Bush administration's finally being held accountable for lying the nation into war, and there's also talk of further "accountability" in the form of possible congressional hearings. But I want to elaborate a little on the extraordinary degree to which the Bush administration, allegedly engaged in some sort of cover-up of its misdeeds, actually cooperated with the CIA leak investigation.

I think prosecutor Patrick J. Fitzgerald set a terrible precedent in this investigation, first demanding that administration officials sign waivers of confidentiality agreements with reporters, and then going to reporters to say, "See? I've got these waivers. You can testify - or you can go to jail."

There was always an air of coercion about the waivers. Do you believe that Karl Rove, or Lewis Libby, or anyone else in the administration, if they were concerned only about their possible criminal liability, would have signed them? There's not a snowball's chance that they would have. Nor would they have gone before the grand jury again and again - five times in Mr. Rove's case, if I remember correctly.

But they did do all that, either from political pressure or pressure from their boss or the belief that they had done nothing wrong.

The bottom line is that the Bush White House was a model of cooperation in this case. That's especially true compared with the last administration when, faced with a criminal investigation again focused on the truthfulness of sworn testimony, the White House and its allies claimed executive privilege, protection-function privilege, bookstore-book-buyer privilege, mother-daughter privilege and God knows what else in an effort to frustrate the independent counsel. And don't forget that Susan McDougal, the president's former business partner, went to jail for 18 months rather than answer the question of whether President Bill Clinton testified truthfully at her trial (at which she was convicted of fraud).

In comparison, the Bush White House's handling of the Fitzgerald probe has been astonishingly open. The exception, of course, is Mr. Libby, who has been convicted of obstruction. But the Bush administration ordered everyone to cooperate, and it appears that, aside from Mr. Libby (if one agrees with the jury's verdict), they did. The administration's conduct in the run-up to the war was not a model of wise behavior. But its response to the CIA leak investigation was.

Let the explaining begin!


The waivers were a bad idea, and the reporters who, by and large - seemingly with the exception of Robert Novak - saw them as coercive and didn't take them seriously were right. I'll gladly join you in seeking to ensure that in fact this investigation does not set a precedent in that regard.

Let's say the Bush administration cooperated with the investigation. That cooperation is hardly equivalent, as you seem to assume, with being open.

Open means George W. Bush, Karl Rove and Dick Cheney would not still be hiding behind the pretense of the Libby trial - for goodness sake, the trial is over - to refuse to explain their own roles in the case. Or to explain why, in light of Mr. Bush's pledge to get rid of anyone involved, Mr. Rove still has a job now that we know he did leak Valerie Plame's CIA identity to at least two reporters, serving as Mr. Novak's confirming source for the original public outing of Ms. Plame in his July 14, 2003, column, and retailing the information at greater length to Matt Cooper of Time magazine a few days later.

Maybe Mr. Bush should explain how he was parsing his words in fine casuistic fashion and didn't really mean he would fire anyone involved in leaking about Ms. Plame, only that anyone who was convicted of knowingly leaking classified information would be fired. (Maybe he should rehire Mr. Libby on those grounds?) Or maybe Mr. Bush can explain that when his people promised to restore honor and dignity to the White House, they just meant they wouldn't be indicted.

I agree that after the trial, we know some of what happened, but I'd like to hear Mr. Cheney confirm what the trial (and pretrial discovery phase) presented evidence of: that Mr. Cheney and Mr. Libby participated in a very limited - indeed, limited to the two of them - and coordinated effort to disclose Ms. Plame's CIA status, which they certainly acted for all the world like they understood was sensitive information, to reporters, and that Mr. Libby leaked the Plame information to one reporter in particular, Judith Miller of The New York Times, at Mr. Cheney's behest.

Of course, as Mr. Libby also acknowledged in the grand jury (while not admitting he was leaking about Plame), the effort to get Ms. Miller to publish failed. But an inept leak is still a leak, and it would be nice to hear Mr. Cheney talk about it openly in public. Do you think he'll cooperate with Congress and testify willingly?

Byron York is White House correspondent for National Review. His coverage of the Libby trial can be read at Jeff Lomonaco, an assistant professor of political science at the University of Minnesota, did analysis of the Libby trial for The American Prospect Online.

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