"More than a body blow"

Will the Bush team be able to shake off the Libby indictment? Experts measure the impact of the case.

Published October 29, 2005 6:10PM (EDT)

Bob Barr, former Republican congressman

In the late 1980s, while I was serving as United States Attorney for the Northern District of Georgia, my office conducted an investigation into allegations that a then-sitting Republican Member of Congress from Georgia had engaged in a conspiracy to launder money and had obstructed justice and committed perjury. After lengthy and in-depth consideration within our office in Atlanta and with top officials at Main Justice in Washington, D.C., it was decided to seek an indictment against the Congressman on obstruction and perjury. Despite severe pressure from Republican political leaders in Georgia and elsewhere, and in the face of relentless public pressure to close the case out, we proceeded -- but only after taking the time to make certain every stone was overturned and examined; and only after we became convinced not just that the crimes to be charged had been committed, but also that we could convince a doubting jury of their having been committed beyond a reasonable doubt. I assigned the case to the very best prosecutor in my office.

Why did we go to such extraordinary and time-consuming lengths before laying the case before a grand jury? Because proving perjury and obstruction counts are among the most difficult charges to successfully prosecute. They are also among the most important; going, as they do, to the very heart of whether or not our entire judicial system will function in the first instance. In the case of that Congressman, our preparation paid off; he was convicted.

Special Prosecutor Patrick Fitzgerald is doing the same thing in the still-ongoing investigation of the CIA/Valerie Plame leak investigation. He, too, knows the difficulties inherent in prosecuting obstruction and perjury; he also is keenly aware of the importance to the fundamental credibility of our entire justice system if such offenses go unpunished. Wisely, he has resisted pressure to wrap things up quickly; but instead has carefully and methodically interviewed (and re-interviewed) witnesses, and assembled an impressive array of evidence against the first indictee: Lewis "Scooter" Libby.

Reviewing the indictment against Mr. Libby (and unlike, for example, the indictment pending against Tom DeLay in Texas), it is clear to me Mr. Fitzgerald has done an exemplary job. If I were Mr. Libby -- while I certainly would publicly express confidence in my eventual and full exoneration -- in private, I would be deeply concerned. The charges and supporting detail in the indictment are sound and far from frivolous.

The political fallout to the Bush Administration and to the Republican majority in the Congress of this single indictment will be measurable but probably not lethal. However, if further indictments are forthcoming, whether of political advisors in the White House or of operatives in the National Security Council, the damage will be considerably more serious. More important, the damage to our already battered intelligence community, and its ability to recover any degree of credibility vis-`-vis our allies as well as our adversaries, will be profound and long-lasting.

For an Administration that has made National Security the cornerstone of its legitimacy since January 20th 2001, Friday's indictment represents more than a body blow. It cannot be shaken off.

John R. Kroger, former federal prosecutor; associate professor, Lewis and Clark Law School

Lewis Scooter Libby has been charged with lying to FBI investigators and the grand jury about two critical facts: what he knew about CIA agent Valerie Wilson and when he knew it. He is also accused of fabricating, out of whole cloth, conversations with reporters that never took place, in an effort to throw investigators off the track. In short, he is accused of engaging in an illegal coverup.

Scooter Libby appears to be in serious trouble. From Pat Fitzgeralds statements at Fridays press conference, and from the expansive text of the indictment itself, it seems clear that Fitzgerald has a very strong case against Libby for perjury, false statements, and obstruction of justice. At trial, Fitzgerald will apparently be able to rely on testimony from at least seven top government officials, plus journalists Tim Russert and Matt Cooper, to prove that Libby lied to the grand jury and the FBI during the CIA leak investigation. Given the apparent strength of the case, and the blatant nature of Libbys alleged lies, I think it is very likely that Libby will eventually plead guilty to these charges. In my experience, most cases this strong dont go to trial.

Karl Rove was not indicted. Fitzgerald is a very experienced, non-political prosecutor; if he ultimately says there is no criminal case there, we can trust him.

Politically, I think President Bush dodged a bullet here. Though Libbys indictment reveals corruption at the highest reaches at the White House, Karl Roves indictment would have been a severe body blow -- one from which the administration might never have recovered. The big losers here are the neocons, who pushed hard for the war in Iraq but dont seem to know how to win it.

Todd Gitlin, professor of journalism and sociology, Columbia University

With the Republicans controlling every branch of the national government -- though they are reeling at last -- the only way to push back against their unbridled power is with the bridle at hand: the independent prosecutor who cannot be bought. So the indictment of Scooter Libby is a necessary step back in the direction of a separation of powers -- a democratic act. I say this although the criminalization of politics is not a healthy tendency, overall. The courts come into play where politics has failed.

But failed our politics has. So the indictment of Dick Cheney's chief of staff is a blow against the autocratic habits, criminal negligence, deception and more deception that go by the name of the Bush White House.

Watch for the Bush team to fight back with every corrupt argument at hand, and no doubt a few that we've never heard of.

Watch for Patrick Fitzgerald to carry on with the investigation, still needed, into who else worked up the smear of Joe Wilson -- a smear that was integral to the White House efforts to shore up their collapsing war rationale in 2003.

And don't tell me that Scooter Libby dreamed up his moves all by himself.

Steven Clemons, publisher of the Washington Note; senior fellow at the New America Foundation

The man hit his mark. While special counsel Patrick Fitzgerald tackled one White House titan today, rather than two, one is enough to seriously wound the Bush team. Scooter Libby, Vice President Cheneys chief of staff and one of the administrations highest ranking neoconservatives, has been indicted on five counts and has resigned his office. While Karl Rove missed the bullet today, hes not yet in the clear. Fitzgerald could be back with new charges at any time.

Recently, former State Department Chief of Staff Lawrence Wilkerson charged that a Cheney-Rumsfeld cabal ruled the national security decisionmaking process. At minimum, the Bush White House has just seen the vice presidents legitimacy in major policy matters severely impugned, and perhaps crippled.

Historically speaking, this has been one of the most leak-resistant grand jury investigations to ever unfold inside Washington -- and the fact that two of the most important political apparatchiks of the Bush White House were targets make Fitzgeralds management of this case even more impressive.

Some will argue that Fitzgerald took the indictment-lite course with obstruction of justice, perjury and false statement charges, but remember that the mighty Al Capone was felled by the seemingly minor charge of tax evasion. Libby yet again proves the rule: Its not the crime but the coverup. And as Fitzgerald himself made clear in Friday's press conference, obstruction of justice -- particularly with an investigation into national security matters -- is a very serious charge indeed.

Fitzgerald argued that discussions about Valerie Plame inside the White House and among agencies were extensive. Libby allegedly had four sources for his information on Plame before any discussion with reporters, including sources at the CIA, State Department, and his own boss -- Vice President Cheney. The public will now seriously doubt claims that the president and vice president knew nothing about the source of the Plame leak.

While the Republicans once pounded Clinton for his lies about a sexual affair, their words will now haunt them, faced with a matter of serious crimes during a time of war.

Juan Cole, Salon contributor; author of Informed Comment.

The indictment of I. Lewis "Scooter" Libby for obstruction of justice and perjury is clearly not intended by the grand jury and special counsel Patrick Fitzgerald to be the end of this investigation. Fitzgerald was quite clear that Libby's lies made it impossible for him to determine the truth about the real crime here, the leaking of the name of an undercover CIA operative to the press by high White House officials. I read him to say that he still hopes that a trial of Libby may yet shed light on the real crime.

Kathleen Clark, professor of law, Washington University; expert on national security law

The text of the indictment provides a fascinating look at how this White House responded to damaging news articles which undermined the administration's case for the war in Iraq; how in June and July of 2003, Libby discussed those articles with other administration officials; and how he manipulated conversations with various reporters in an effort to receive more favorable news coverage.

According to the indictment, in June and July of 2003, after news reports of Joseph Wilson's trip to Niger, several government sources advised Libby that Wilson's wife worked at the CIA. Vice President Cheney first told Libby of this fact, and it was later confirmed in Libby's conversations with a senior CIA officer, an Under Secretary of State, and an Assistant to the Vice President for Public Affairs. In July, 2003, Libby told Judith Miller of the New York Times and Matt Cooper of Newsweek about Wilson's wife's employment at the CIA.

Several months later, the Justice Department began its investigation of the possible violation of the Intelligence Identities Protection Act. When FBI investigators interviewed Libby in October and November of that year, it appears he lied to them: Libby told them that he had learned about Joseph Wilson's wife's status as a CIA employee from Tim Russert of NBC News, and that he had mentioned to Matt Cooper that he had heard this information from other reporters.

If government investigators believed that Libby learned this from reporters, it would be more difficult to make out a case under the Intelligence Identities Protection Act, which requires that the defendant know that the government was keeping the intelligence agent's identity secret. It would also be difficult for a prosecutor to disprove Libby's statement to the FBI because it would require the testimony of reporters. While federal courts have rejected an absolute privilege for reporters, only rarely has the government subpoenaed reporters and required them to testify in criminal investigations. For example, when the Senate investigated the Anita Hill leak in the early 1990s, it refused to authorize its Special Counsel to subpoena the reporters who broke the Anita Hill story, leaving that lawyer with only circumstantial -- not direct -- evidence of the identity of the leaker.

In December 2003, after Libby had already lied to FBI investigators, then Attorney General John Ashcroft recused himself from this investigation, and appointed Patrick Fitzgerald as Special Prosecutor. Perhaps Libby did not anticipate that this investigation would be led by an independent prosecutor who would be willing to force reporters to testify.

Jay Rosen, associate professor of journalism, New York University; author of PressThink

As to how this case affects the media: I don't buy it that the underground relations between reporters and officials will become chilled. Sources have self-interested reasons to leak. Those are unchanged. From what I can tell, your typical Washington journalist will bargain away the public's right to know the name of the source in a second, if there's a promise of getting something good from it. "Former Hill Staffer?'" "Sure, no problem." That's unchanged. I think the commerce will go on, and we'll continue to know almost nothing about it, unless there is an extraordinary intervention like a special prosecutor.

There's a direct connection between, on the one hand, the effectiveness of the Bush bubble, the utter emptiness of the White Housing briefing, the impossibility of getting an actual answer from Scott McClellan, the concentration of power in a man -- Dick Cheney -- who is almost never interviewed, all of which evacuate the very idea of "the public record," and, on the other hand, the ability of confidential sources to set terms with journalists "off" that record, especially by pitting the most competitive reporters against each other. Sources will continue to set the terms. And all this is part of the Bush team's successful effort to push more and more of its own politics into shadow areas marked by secrecy, deniability and the impossibility of putting questions to the people with power.

The one thing that is different today -- but not because of Fitzgerald -- is that people who were around when the case for war was being assembled are starting to speak up about the twisting and trimming and invention of fact that went on then. If that continues, it will have a big effect on how the Administration is covered because it is a huge story.

By Compiled by J.J. Helland

By Juliana Bunim

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