November 4, 2005
In my last column,
I tried to deflate expectations a bit about the likely consequences of
the work of Special Counsel Patrick Fitzgerald; to bring them down to
the realistic level at which he was likely to proceed. I warned, for
instance, that there might not be any indictments, and Fitzgerald might
close up shop as the last days of the grand jury's term elapsed. And I
was certain he would only indict if he had a patently clear case.
however, one indictment has been issued -- naming Vice President
Cheney's Chief of Staff Lewis "Scooter" Libby as the defendant, and
charging false statements, perjury and obstruction of justice. If the
indictment is to be believed, the case against Libby is, indeed, a
Having read the indictment against Libby, I am inclined to believe
more will be issued. In fact, I will be stunned if no one else is
Indeed, when one studies the indictment, and carefully reads the transcript of the press conference,
it appears Libby's saga may be only Act Two in a three-act play. And in
my view, the person who should be tossing and turning at night, in
anticipation of the last act, is the Vice President of the United
States, Richard B. Cheney.
The Indictment: Invoking the Espionage Act Unnecessarily
federal criminal indictments are absolutely bare bones. Just enough to
inform a defendant of the charges against him.
For example, the United States Attorney's Manual, which Fitzgerald said he was following, notes that under the Sixth Amendment
an accused must "be informed of the nature and cause of the
accusation." And Rule 7(c)(1) of the Federal Rules of Criminal
Procedure requires that, "The indictment . . . be a plain, concise and
definite written statement of the essential facts constituting the
offense charged." That is all.
Federal prosecutors excel at
these "plain, concise and definite" statement indictments - drawing on
form books and institutional experience in drafting them. Thus, the
typical federal indictment is the quintessence of pith: as short and to
the point as the circumstances will permit.
Again, Libby is
charged with having perjured himself, made false statements, and
obstructed justice by lying to FBI agents and the grand jury. A
bare-bones indictment would address only these alleged crimes.
But this indictment went much further - delving into a statute under which Libby is not charged.
One, paragraph 1(b) is particularly revealing. Its first sentence
establishes that Libby had security clearances giving him access to
classified information. Then 1(b) goes on to state: "As a person with
such clearances, LIBBY was obligated by applicable laws and
regulations, including Title 18, United States Code, Section 793, and
Executive Order 12958 (as modified by Executive Order13292), not to
disclose classified information to persons not authorized to receive
such information, and otherwise to exercise proper care to safeguard
classified information against unauthorized disclosure." (The section
also goes on to stress that Libby executed, on January 23, 2001, an
agreement indicating understanding that he was receiving classified
information, the disclosure of which could bring penalties.)
What is Title 18, United States Code, Section 793? It's the Espionage Act -- a broad, longstanding part of the criminal code.
Espionage Act criminalizes, among other things, the willful - or
grossly negligent -- communication of national-defense related
information that "the possessor has reason to believe could be used to
the injury of the United States or to the advantage of any foreign
nation." It also criminalizes conspiring to violate this
But Libby isn't charged with
espionage. He's charged with lying to our government and thereby
obstructing justice. So what's going on? Why is Fitzgerald referencing
the Espionage Act?
The press conference added some clarity on this point.
Libby's Obstruction Has Blocked An Espionage Act Charge
Special Counsel was asked, "If Mr. Libby had testified truthfully,
would he be being charged in this crime today?" His response was more
oblique than most.
In answering, he pointed out that "if
national defense information which is involved because [of Plame's]
affiliation with the CIA, whether or not she was covert, was
classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espionage Act." (Emphasis added). (As noted above, gross negligence would also suffice.)
as Fitzgerald also noted at his press conference, great care needs to
be taken in applying the Espionage Act: "So there are people," he said,
"who argue that you should never use that statute because it would
become like the [British] Official Secrets Act. I don't buy that
theory, but I do know you should be very careful in applying that law
because there are a lot of interests that could be implicated in making
sure that you picked the right case to charge that statute."
His further example was also revealing. "Let's not presume that Mr. Libby is guilty. But let's assume,
for the moment, that the allegations in the indictment are true. If
that is true, you cannot figure out the right judgment to make, whether
or not you should charge someone with a serious national security crime
or walk away from it or recommend any other course of action, if you don't know the truth.... If he had told the truth, we would have made the judgment based upon those facts...." (Emphases added.)
he added. "We have not charged him with [that] crime. I'm not making an
allegation that he violated [the Espionage Act]. What I'm simply saying
is one of the harms in obstruction is that you don't have a clear view of what should be done.
And that's why people ought to walk in, go into the grand jury, you're
going to take an oath, tell us the who, what, when, where and why --
straight." (Emphasis added)
In short, because Libby has lied,
and apparently stuck to his lie, Fitzgerald is unable to build a case
against him or anyone else under Section 793, a provision which he is
willing to invoke, albeit with care.
And who is most vulnerable under the Espionage Act? Dick Cheney - as I will explain.
Libby Is The Firewall Protecting Vice President Cheney
Libby indictment asserts that "[o]n or about June 12, 2003 Libby was
advised by the Vice President of the United States that Wilson's wife
worked at the Central Intelligence Agency in the Counterproliferation
Division. Libby understood that the Vice President had learned this
information from the CIA."
In short, Cheney provided the
classified information to Libby - who then told the press. Anyone who
works in national security matters knows that the Counterproliferation
Division is part of the Directorate of Operations -- the covert side of
the CIA, where most everything and everyone are classified.
to Fitzgerald, Libby admits he learned the information from Cheney at
the time specified in the indictment. But, according to Fitzgerald,
Libby also maintained - in speaking to both FBI agents and the grand
jury - that Cheney's disclosure played no role whatsoever in Libby's
disclosure to the media.
Or as Fitzgerald noted at his press
conference, Libby said, "he had learned from the vice president earlier
in June 2003 information about Wilson's wife, but he had forgotten it,
and that when he learned the information from [the reporter] Mr. [Tim]
Russert during this phone call he learned it as if it were new."
in Fitzgerald's words, Libby's story was that when Libby "passed the
information on to reporters Cooper and Miller late in the week, he
passed it on thinking it was just information he received from
reporters; that he told reporters that, in fact, he didn't even know if
it were true. He was just passing gossip from one reporter to another
at the long end of a chain of phone calls."
This story is, of course, a lie, but it was a clever one on Libby's part.
protects Cheney because it suggests that Cheney's disclosure to Libby
was causally separate from Libby's later, potentially
Espionage-Act-violating disclosure to the press. Thus, it also denies
any possible conspiracy between Cheney and Libby.
protects Libby himself - by suggesting that since he believed he was
getting information from reporters, not indirectly from the CIA, he may
not have had have the state of mind necessary to violate the Espionage
Thus, from the outset of the investigation, Libby has
been Dick Cheney's firewall. And it appears that Fitzgerald is actively
trying to penetrate that firewall.
What Is Likely To Occur Next?
has been reported that Libby's attorney tried to work out a plea deal.
But Fitzgerald insisted on jail time, so Libby refused to make a deal.
It appears that only Libby, in addition to Cheney, knows what Cheney
knew, and when he knew, and why he knew, and what he did with his
Fitzgerald has clearly thrown a stacked indictment at
Libby, laying it on him as heavy as the law and propriety permits. He
has taken one continuous false statement, out of several hours of
interrogation, and made it into a five-count indictment. It appears he
is trying to flip Libby - that is, to get him to testify against Cheney
-- and not without good reason. Cheney is the big fish in this case.
Libby flip? Unlikely. Neither Cheney nor Libby (I believe) will be so
foolish as to crack a deal. And Libby probably (and no doubt correctly)
assumes that Cheney - a former boss with whom he has a close
relationship -- will (at the right time and place) help Libby out,
either with a pardon or financially, if necessary. Libby's goal,
meanwhile, will be to stall going to trial as long as possible, so as
not to hurt Republicans' showing in the 2006 elections.
Libby can take the heat for a time, he and his former boss (and friend)
may get through this. But should Republicans lose control of the Senate
(where they are blocking all oversight of this administration), I
predict Cheney will resign "for health reasons."