By the time he was convicted of perjury and obstruction of justice on March 6 of this year, it had long been clear to opponents of the Bush administration that the trial of I. Lewis “Scooter” Libby marked a defining moment. As Vice President Dick Cheney’s chief of staff, Libby had been a central figure in developing the President’s case for the invasion of Iraq in 2003. The lies he was accused of telling were wrapped up in the justification for that war, and with the administration’s attempt to discredit one of its critics.
Thus, an acquittal of Libby would have constituted, in the eyes of the President’s many adversaries, yet another example of how this administration has repeatedly trampled on the Constitution and the justice system and gotten away with it. By contrast, the fact that Libby was found guilty—on two counts of perjury, one count of obstruction of justice, and one count of making false statements to the FBI—was taken as definitive confirmation that the Bush White House did indeed “lie us into war,” all the while perfidiously attacking its critics in order to intimidate and silence them.
The background to this standard view of the trial and its significance runs roughly as follows. On July 6, 2003, former U.S. Ambassador Joseph C. Wilson IV charged in the New York Times that the administration had manipulated intelligence findings in order to rationalize the invasion of Iraq. He knew this, Wilson wrote in a lengthy op-ed, because he himself had been sent to Africa by the CIA a year earlier to investigate a report that Niger was supplying uranium ore to Iraq. He had come across nothing to support this allegation. Yet not only had his negative finding been ignored by the administration, but the President, in his January 2003 State of the Union address, specifically invoked the supposed connection between Saddam Hussein and Niger. “Based on my experience with the administration in the months leading up to the war,” Wilson summarized, “I have little choice but to conclude that some of the intelligence related to Iraq’s nuclear-weapons program was twisted to exaggerate the Iraqi threat.”
A week after Wilson’s op-ed appeared, someone leaked to the press that the ambassador’s wife, Valerie Plame Wilson, was employed by the CIA as a covert agent, and that her husband’s trip to Niger had been little more than a “junket” conducted at her behest. Under the Intelligence Identities Protection Act (IIPA), signed into law in 1982, it is a felony knowingly to divulge the identity of a covert agent (if the information was received through official channels). The disclosure of Mrs. Wilson’s identity, jeopardizing her undercover work for the CIA and potentially compromising national security, might have constituted a violation of IIPA—this, in pursuit of a petty official vendetta against her husband for having dared challenge the Bush White House. In view of the seriousness of the possible offense, a government investigation ensued, leading in time to the trial of Scooter Libby.
The trouble with this narrative is that Libby was not the source of the information; nor was he ever charged with the crime of leaking it. This, however, has not appeared to trouble his accusers. As Joseph Wilson would put it after the trial, Libby’s conviction for perjury rather than for violating the IIPA was like putting Al Capone behind bars for tax evasion; when you are dealing with known criminals, the particular crime you catch them at is less important than catching them at all. Similarly, in the judgment of Max Frankel, the former executive editor of the New York Times (writing in the Sunday Times Magazine), the essential point to be gleaned from the trial is that Libby was indeed engaged in a White House campaign to expose Mrs. Wilson and discredit her husband; the fact that the information about her was first leaked through other channels was a matter only of happenstance, or perhaps incompetence.
But despite the wishes of those who take their history via synecdoche, this reading of the Libby trial is wrong on every point. Indeed, for a trial that is said to have been about the nature of truth-telling and lying, it is amazing how mistaken is the impression most people have both of the proceeding itself and of its meaning. This is the case not only for Libby’s enemies but also for his defenders, who tend to construe his fall as a tale of tragic personal sacrifice in the name of a higher cause—protecting his superiors and, through them, the continued prosecution of the war against terror. In fact, it is a tale of something else entirely.
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To grasp what the Libby trial does and does not signify, it is necessary to go back again to the start: the President’s State of the Union address on January 28, 2003. The speech contained these sixteen words: “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.”
The President’s “explosive” assertion, as it was later characterized, allegedly accelerated our “rush to war.” Whether that is so is itself highly questionable; later events have a way of coloring one’s perceptions of little things previously overlooked. Be that as it may, however, less than two months later the U.S. did invade Iraq, and within another few months Joseph Wilson was airing his charge about cooked intelligence in the New York Times.
In doing so, Wilson offered a précis of his career as a diplomat, including his postings in Africa, and disclosed that he had already served as an unnamed source in several recent pieces by others questioning the President’s January statement. Then he described the trip he had taken to Niger in early 2002. There he met with the American ambassador, Barbro Owens-Kirkpatrick, who assured him that she “knew about the allegations of uranium sales to Iraq—and . . . felt she had already debunked them in her reports to Washington.” Next, he spent “eight days drinking sweet mint tea and meeting with dozens of people” to ascertain what they knew about Saddam’s interest in “yellowcake,” a form of uranium ore produced in the country’s mines. Having concluded that “it was highly unlikely that any such transaction had ever taken place,” he reported his findings verbally to Washington and “went back to [his] life.”
This, then, was the sum of Wilson’s charge: that Niger had not sold yellowcake to Iraq, and that he had reported as much to the State Department and the CIA. But the President never said in the State of the Union speech that a sale had taken place, only that Saddam had “sought significant quantities of uranium from Africa” (emphasis added). Moreover, two subsequent investigations of prewar intelligence, by the Senate Intelligence Committee and by the UK’s Butler Commission, would both confirm that there was good reason to believe that Saddam Hussein had “sought” yellowcake from Niger. The President, in other words, would be vindicated for uttering the sixteen words.*
But all that would come much later, too late to have any effect on the debate. Back in July 2003, Wilson’s charge set off a major clamor. Within days, George Tenet, the then-director of Central Intelligence, publicly took responsibility for the presence of the sixteen words in the President’s speech, asserting that, although they were “factually correct” in their citing of a “British government report,” they “did not rise to the level of certainty which should be required for presidential speeches,” and should not have been there. Tenet’s backpedaling would lend great force to the claim that the President had “lied us into war.” It was also the first in a series of politically motivated abdications of official responsibility by elements within the Bush administration, each of which would contribute to Libby’s downfall.
At the time, the press was still wondering how top administration officials could have been unaware of Wilson’s “findings” while the State of the Union address was being written and vetted. To its rescue came the conservative columnist Robert Novak. In a piece (“Mission to Niger,” July 14, 2003) about the “political firestorm” caused by Wilson’s article, Novak wrote that Wilson himself had “never worked for the CIA.” But, Novak added,
his wife, Valerie Plame, is an agency operative on weapons of mass destruction. Two senior administration officials told me that Wilson’s wife suggested sending him to Niger to investigate the . . . report. [emphasis added]
Like the sixteen words in the State of the Union, those six italicized words would overshadow everything else in Novak’s column.
The column itself, however, was vintage Novak. A Washington journalist of the old school, Novak has always taken pride in presenting not merely one man’s view of the day’s events but a uniquely well-informed understanding, based on extensive sourcing and careful research. He had stepped into the controversy over the sixteen words with a juicy revelation: that Wilson’s wife worked at the CIA, and that this might have been relevant to Wilson’s being selected for the mission. The attribution of his source was typical Novak, too: there was enough detail to let readers know that he was not making up the information, but not so much as to put his informants in jeopardy.
Or so he must have imagined. As one who, from the start, had been opposed to the Iraq war as an ill-advised foreign adventure, Novak was certainly not about to impeach Wilson’s claims about Niger and Saddam Hussein. The real story here, he wrote in another pregnant phrase, was “whether the administration deliberately ignored Wilson’s advice.” It would be one thing if Wilson had misrepresented his findings for political gain or had merely been sent on a junket by his wife—or both. It would be quite a different thing if Vice President Cheney had sent Wilson to Niger and then dismissed or covered up his findings.
As it happens, this particular issue would be resolved definitively at Libby’s trial. Uniformly, witnesses for both the prosecution and the defense testified that the White House first learned of Wilson’s trip only when Wilson himself started leaking word of it in June 2003. But, once again, none of this figured in the public debate in 2003. Instead, politicians and pundits who had long viewed the CIA with suspicion or contempt suddenly became sensitive to the possibility that a senior administration official might have publicly exposed a covert intelligence agent. New York Senator Charles Schumer called for an investigation of who leaked Valerie Wilson’s identity and why. Words like “treason” were bandied about.
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On September 26, 2003, at the CIA’s request, the Justice Department formally launched an investigation into the identity of the leaker. The premise for the investigation was the IIPA, also known as the Philip Agee Act. Agee was a CIA agent who, having become disillusioned with his employer, quit in 1968 and subsequently launched a personal campaign to blow the covers of other CIA agents around the world, at great cost to American intelligence and, in certain cases, American lives. A direct response to Agee’s vigilantism, the IIPA had been enforced perhaps once since its passage in 1982. The Wilson case would not offer a second opportunity.
The reason is this: almost immediately after the investigation began, something happened that should have put the whole matter to rest once and for all. Richard Armitage, the Deputy Secretary of State, read a follow-up piece by Robert Novak in which the columnist referred to the leaker as “no partisan gun-slinger.” As Armitage would later admit, he “immediately” called his boss, Secretary of State Colin Powell, and said: “I’m sure that was me.” After telling Powell, Armitage also proceeded to inform the FBI that he was Novak’s first source, adding that his leak had been “inadvertent.”
And so, what Time magazine was tentatively calling “A War on Wilson?” turned out to be a figment of Wilson’s own imagination, albeit one dutifully reported as plausible by much of the media. Case closed, then? Not at all. For Armitage’s voluntary disclosure would itself not become public for another three years. In the meantime, after the drama ought to have been over, Scooter Libby had entered the picture.
Libby’s troubles began that October when he was questioned by the FBI about his conversations with reporters during the weeks and days just prior to Novak’s July 14, 2003 column. Libby was not a target of the Justice Department investigation; it was not he who had spoken to Novak about Valerie Plame Wilson. But he had spoken with others. To Matthew Cooper of Time, for example, he had confirmed knowing or having heard that Wilson’s wife worked for the CIA. And he had had another conversation with Tim Russert, the Washington bureau chief of NBC News—who, by Libby’s account, surprised him by taking the lead and confiding the fact of Valerie Wilson’s employment at the CIA.
When Libby was finally indicted in October 2005, four of the five counts against him concerned these two conversations. He was in effect charged with telling the same lie about them twice: once to the FBI, and again to the grand jury that handed down the indictment. In brief, the case against him rested on differing recollections of two conversations during the week between the publication of Wilson’s op-ed and Novak’s column.
The prosecutor who got Libby indicted and then convicted was Patrick J. Fitzgerald, the U.S. Attorney for the Northern District of Illinois. Fitzgerald was named special prosecutor for the leak case on December 30, 2003. The man who appointed him was not Attorney General John Ashcroft, who recused himself, but Fitzgerald’s longtime friend James Comey, the deputy attorney general. After George Tenet’s backtracking, the delegating of this decision marked the second abdication of official responsibility in the Libby case.
Fitzgerald would have learned straightaway that the leaker was Richard Armitage, because Armitage had already told the FBI. Nevertheless, five weeks into a case that had been solved before he was even appointed, Fitzgerald sought and received plenary power from Deputy Attorney General Comey “to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.” This grant of wide authority was an indication that Fitzgerald had abandoned his investigation of the original leak and was after other fish.
Another indication was that, for the next eighteen months, Fitzgerald would doggedly pursue a number of reporters to compel or cajole them into testifying about their sources. He sent Judith Miller of the New York Times to jail for refusing to testify about Mrs. Wilson, even though Miller had never published a word about the Wilson story. He nearly sent Matthew Cooper to jail as well. In all these months, the question of what Novak had done when confronted about his sources remained a mystery. But in retrospect it was no mystery at all. Fitzgerald, who knew the identity of Novak’s source before he ever questioned him, had simply presented the columnist with a single waiver of confidentiality signed by Armitage. This was enough, apparently, to convince Novak to cooperate.
In short, the main source having come forward voluntarily, Fitzgerald had learned everything he needed to know without Novak’s help. And as for Novak’s second “senior government official,” that was Karl Rove, who confirmed Armitage’s information; questioned repeatedly by prosecutors, he, like Armitage, was never charged with a crime. Had these facts been appreciated early on, Fitzgerald’s single-minded pursuit of a third person, Scooter Libby, might well have been cast in a very different light. But they were not, and so, since journalists abhor a mystery, a story grew up that Libby to this day has been unable to shake.
According to that story, Libby was himself at the center of the campaign to get back at Joseph Wilson for having humiliated the Bush administration. The means chosen was exposure of Mrs. Wilson’s status as a covert officer of the CIA, thus destroying her career.
This account of the administration’s motives would find its clearest expression in the civil lawsuit filed by the Wilsons themselves against Libby, Karl Rove, Dick Cheney, “and John Does No. 1-10.” The suit claims violations of Mrs. Wilson’s First and Fifth Amendment rights by means of a “conspiracy among current and former high-level officials in the White House.” After it came out in late 2006 that the leaker was Richard Armitage, the Wilsons obligingly added him, too, to the complaint—without, however, retreating in the slightest from their contention that the real source of the conspiracy was the White House.
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This brings us to the trial. When it opened in January, a parade of government officials testified that Libby had indeed had occasion to learn the identity of Joseph Wilson’s wife prior to the week of July 6, 2003. This, however, was not in dispute; Libby himself had already told both the FBI and the grand jury that he first learned of Valerie Wilson’s identity from the Vice President in June 2003. What Fitzgerald now sought to show was that her identity was sufficiently well-established in Libby’s mind that, contrary to his 2004 testimony to the grand jury that the information subsequently slipped his mind, he could not have been surprised to hear about her from any of the reporters he spoke to during the fateful week before the appearance of Robert Novak’s July 14 column.
Fitzgerald had a simple plotline to unfold, and the jury apparently believed it. According to this plotline, Libby, although not himself the leaker, feared he had been indiscreet about Valerie Wilson in his conversations with reporters. If she was a covert agent, and if he had known that, and if he had disclosed her identity anyway, he could find himself in trouble. So, in order to cover up his indiscretion, he proceeded to bend the truth, giving the impression to the FBI and the grand jury that the information about Valerie Wilson came primarily not from official sources—that is, not from Cheney or other White House officials—but from people outside government, namely, from reporters themselves. By convincing investigators that anything he might have said about Valerie Wilson was merely recycled from one journalist to another, Libby (in this reading of his motives) would avoid legal jeopardy for having disclosed classified information to those not authorized to know it.
For example: Libby told the FBI and the grand jury that when Matthew Cooper asked him on July 12 whether Wilson’s wife worked at the CIA, he responded: “I’ve heard that from other reporters, too.” But Cooper recalled the conversation differently. According to him, Libby said simply, “I heard that, too.” On this discrepancy, for which neither side possessed any supporting notes or evidence, rested two counts of Libby’s indictment.
Next, Russert. A day or two before speaking with Cooper, Libby had spoken to him, too, about an unrelated matter. In the course of that conversation, according to Libby, Russert asked whether Libby knew that Wilson’s wife worked at the CIA; Libby answered that he did not, and Russert then offered that “all the reporters knew it.” But, once again, Russert had a different recollection. According to him, he never asked Libby about Valerie Wilson on that occasion. And thus two more counts were born—one for lying to the FBI and another for repeating the alleged lie to the grand jury.
Libby was ultimately acquitted of making false statements about his conversation with Cooper, though convicted of having perjured himself about it. The Cooper items were, indeed, the flimsiest of the counts in the indictment against him. As for the Russert items, they were virtually inexplicable. If Libby was trying to cover his tracks by making his conversations with reporters seem innocuous, what possible reason would he have for inventing an additional conversation about Valerie Wilson that, according to Russert and the prosecution, never took place at all?
One possible motive—Libby’s critics reply—is that he needed this fabricated conversation in order to explain how he learned about Wilson’s wife in the first place. This, however, again overlooks his consistent testimony that he first learned about her from the Vice President a month earlier. Nor (to deal with another frequent misapprehension) would a fabricated prior conversation with Russert offer a useful pretext for Libby’s subsequent assertion to Matthew Cooper that he had heard about Valerie Wilson “from reporters.” Suppose that, when Cooper asked Libby about her, Libby knew and remembered everything about Valerie Wilson and knew that what he knew was classified. He would then have been faced with a choice. He could lie and say he knew nothing. (It is not a crime to lie to reporters.) Or he could put Cooper off by saying that he had heard something to this effect but not from sources any more reliable than Cooper’s own. That, too, would not have been true, but it would be a reasonable way of deflecting the question.
We do not know whether Libby did this, or wished he had after the fact. We do know that one full week into their deliberations, the jury in his trial found it necessary to ask the judge whether Libby was charged with lying to Matthew Cooper or with lying about whether he had lied. In the end, such minute discriminations concerning disputed and undocumented words are what Fitzgerald’s case came down to.
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Did Patrick Fitzgerald enter this investigation hoping to discover the sort of conspiracy alleged by the Wilsons in their civil suit? If so, he was unable to make a case for it at the trial, and did not even try to. Nor did it turn out to be necessary. The jury was convinced by Fitzgerald’s claim that Libby had “made up a story” to cover his own tracks, and on March 6 voted to convict.
Perjury and obstruction of justice are serious matters. Going in, a prosecutor has to decide whether to seek an indictment based on the best information available to him at that point. Witnesses who aim to obscure the truth, or to stand in a prosecutor’s way, can make the job difficult, even impossible. Announcing Libby’s indictment in October 2005, Fitzgerald compared this to throwing sand in an umpire’s eyes to prevent him from calling a play accurately.
But if Libby were really concerned about possible indiscretions on his part, would it not have been enough to say he could not recall precisely what he had said to the reporters he spoke with during the week of July 6? To concoct elaborate and detailed lies about those conversations, and so run the risk of being caught in them, seems like the worst sort of penny-wise, pound-foolishness.
It is for this reason, perhaps, that the conspiracy explanation has never really gone away. To many observers, including some sympathetic to Libby, it has seemed more likely that he was prepared to lie—to protect his boss, or the administration—than that he lied simply to cover for himself.
And yet there was no conspiracy. What there was, instead, was a concatenation of fecklessness, and worse, on the part of those around Libby at critical junctures.
In the wake of Wilson’s op-ed, the administration rapidly backed away from the sixteen words even though Wilson’s charge did not match what the sixteen words actually said. This backing-away then fueled the sense, especially in the media and among Democrats in Congress, that intelligence had been politicized to justify a premeditated war. In turn, George Tenet’s mea culpa laid the groundwork for the baseless claim that Valerie Wilson had been “outed” by the administration in revenge for her husband’s op-ed. After all, a White House that would lie the country into war would hardly hesitate to compromise national security to get back at one of its critics. And then, having undermined its own credibility about both the original intelligence and Valerie Wilson’s role in gathering it, the administration agreed to play along with the notion that the Wilson “scandal” was a serious matter of national security rather than what it was: a convenient political weapon in the hands of Bush’s opponents.
Even so, however, the course of events would have been different if fecklessness had not been combined with something else—if, that is, Colin Powell had been as honest with his boss as Richard Armitage had been with him. Instead, a political decision was made at the top levels of the State Department to avoid informing the White House who the leaker was.
Alberto Gonzales, then the White House counsel, was duly informed that the State Department had disclosed certain information about the case to the FBI. Did Gonzales want to know the details? Keenly aware that the President had vowed not to interfere with the investigation, and ignorant of the nature of the information being offered, Gonzales declined.
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If there was a conspiracy, then, it was a conspiracy of dunces. At every stage where a top administration official could have exercised authority to ameliorate the problem caused by Wilson’s op-ed and Armitage’s indiscretion, that official failed to do so.
If a lesson about the Bush administration lies buried in this tale, it is close to the opposite of the accepted one. It is a lesson about an administration caught in an uncomfortable position as a result of one State Department official’s indiscreet remark to a skilled columnist, an administration straining to appear to be doing the right thing even at the expense of actually doing anything right. But the real lesson here has nothing to do with the Bush administration, any more than it has to do with prewar intelligence or with the First and Fifth Amendment rights of CIA officers.
The modern American government is a vast and largely self-sustaining bureaucracy. That bureaucracy acts, first and foremost, in its own interest, and not necessarily in the interests of its putative but temporary political bosses. The CIA, its intelligence having been challenged, sold out the White House on the sixteen words—even though that intelligence would later be upheld. The State Department, faced with the knowledge that one of its own was responsible for the Valerie Wilson leak, preferred keeping the White House in the dark to revealing what it knew. The Justice Department did what prosecutors do when ordered to investigate, which is to charge people with crimes.
In other words, the Republican party’s alleged “full control” of government prior to the 2006 midterm elections was more myth than reality. The Bush administration lost control of the Wilson story almost from the beginning, and while on a number of occasions it failed to exercise the control available to it, it was also denied the opportunity to control its fate by entrenched interests that no elected administration can ever fully master without the consent of the bureaucracy that supposedly serves it.
The President, however, does still hold one trump card, left in the hands of the chief executive by the founding fathers. The only unchecked power held by any single person in the federal government is the power to grant a pardon. That power is nothing more than the authority to restore personal liberty to another person—that is, to release a man or woman from the grip of the state.
Within hours of Libby’s conviction, Democrats, led by the Senate majority leader Harry Reid, called on President Bush to preclude the possibility of a pardon. This the President has of course refused to do. Neither has he yet offered a pardon. But there are good reasons, partly political and partly personal, for delay.
A pardon, it is generally agreed and the Supreme Court has ruled, carries with it the taint of guilt, and its acceptance an acknowledgment of guilt. This is something that Libby may yet hope to avoid. While he is due to be sentenced in June, his lawyers have announced their intention to appeal the conviction.
A pardon, whether it comes now or later, will inevitably occasion another round of scab-pulling about the case for the war and the administration’s commitment to the rule of law. It was partly out of a wholly unjustified fear of such criticisms that Libby was put in his current position in the first place. Before the President leaves office, it would be a rough sort of justice to defy those criticisms, and those who level them, by setting him free.
* The President’s use of the word “recently” may have been an exaggeration; both of the later investigations dated Saddam’s interest in Niger yellowcake to 1999.
