Stirling Newberry: Deconstructing the Indictment

For the last two years, Federal Attorney Patrick Fitzgerald has investigated a potential crime, namely the revealing to the general public that Valerie Wilson nee Plame worked for the CIA in counter-proliferation, and was an undercover agent. To charge someone with a crime at the Federal level requires an indictment - a summary of allegations and facts which show that there is probable reason to believe that a crime was committed, and that a particular individual should be charged with that crime and prosecuted. It is part of the safeguards of our judicial system that prosecutors are not able to charge by themselves, but have three forms of oversight. First, they work for the public, directly or indirectly. Second, the process is overseen by a judge, and approval is needed along the way for warrants and subpoenas power. Most importantly, they must convince a body of citizens, the grand jury, that there is probable cause a crime has been committed, and that a particular individual or group of individuals should face criminal charges.

At 2:00 PM Eastern Standard Time today Fitzgerald all but declared his investigatory phase over, and that his office was entering into a new phase, where Lewis Libby, chief of staff to Vice President Dick Cheney, has been charged with a crime, and must be tried. It is tempting to speculate on what this means, what the fallout will be, and where the direction goes from here. But first, it is important to capture the staggering statements made in the indictment, and what they reveal. While partisans will attempt to spin this in one direction or another, the fact is that a five-count indictment on felony charges rests on a theory of what took place that goes far beyond what Scooter Libby did or said. That the indictment is so carefully prepared, and carefully does not draw implications, nor does it include extraneous information, makes what it does include all the more interesting, and potentially damning.

But let us look with "the four corners of the indictment" first. The timeline set forth by the indictment is this. In the 2003 State of the Union address, George Bush uttered the by now famous "Sixteen Words," claiming that Saddam had attempted to get uranium illegally from Niger. In May of 2003, that story began to unravel, as press accounts came to the fore which questioned the Niger Yellowcake story.

In June of 2003, the timeline grows dense. On or about the 11th and 12th of June, Scooter Libby was involved in a flurry of activity trying to track down how it came to be that Ambassador Wilson was sent to Niger on a fact-finding trip, and why he was telling the press, at first on background and later for attribution, that by the time of the State of the Union address, the Niger story was already known to be false by the administration. Or, in simple terms, Wilson claimed that long before Bush uttered the 16 words, it was known that there was no evidence for them, and that they were, in sum, a lie.

Libby was told by Vice President Cheney, by an Under-Secretary in the State Department, and by a source inside the CIA, that Valerie Wilson, the wife of Ambassador Wilson, worked for the CIA. He participated in discussions of how to respond to Wilson's statements, and pushed other officials for paperwork and information based on that knowledge.

Libby's crimes began in the Seven Days in July, when the executive branch scrambled to reply to Wilson's published op-ed and television appearance. In that op-ed he claimed to have been on a fact-finding trip to Niger, found nothing to substantiate the allegations that Saddam had tried to obtain yellowcake, and that in the normal course of events, the executive branch should have been informed of the results of his investigation. That is, he had debunked the story, and the executive branch knew this before the State of the Union. If true, it would imply that Bush lied to Congress and the public.

During this time Libby not only widely spread the information that Valerie Wilson worked for the CIA, and the theory that she arranged the trip, but also told different stories to different reporters. To most he either did not mention Plame, or said that it was rumor he had picked up from other reporters. This is a bald-faced lie, since he both had the knowledge that Plame was an operative of the CIA, and he knew he had the ability to find out even if he had not known before. But to two favored sources, Judith Miller and Matt Cooper, he told the truth, namely, that he was sure of Plame's status as a CIA operative. This is why Miller and Cooper were essential.

When the FBI began their investigation into the burning of Plame, Libby told a story, one that Fitzgerald called "compelling" and which was believed for quite some time, namely that he was passing on hearsay. This would have been irresponsible, but not criminal. He repeated this story to the grand jury in October of 2003. This action, lying about what he did and what he knew, constitutes the core of why Libby is charged with crimes. Not for burning Plame, but for lying about having done so.

Libby was attempting to protect himself. The reason for this is unknown, but he was named early as a probable leaker, and would have been the logical person to sacrifice if the wound of Plamegate needed to be cauterized. He tried to run out the clock by telling a story that would have required tremendous tenacity to disprove. Unfortunately for Libby, Fitzgerald had the tenacity to do this.

Simply put, to charge someone with a crime, the prosecutor must prove what are called the "elements of the crime." When you read a law, the definition of a crime contains a list of things that must be true for the crime to be committed. Whether it is breaking and entering, criminal trespass or perjury, the state has to show beyond a reasonable doubt that each and every part of the crime occurred and that the party charged was responsible. Since Libby could not say that he had not told people, he tried to make it impossible for anyone to prove that he knew Plame was CIA, and that her identity was a secret. His story was that he had not known Plame was an agent from classified sources. He further had to hope that the two people who knew better in the press, Cooper and Miller, would be willing to stonewall.

Libby's downfall began with a problem that engulfs many criminals caught in the web of their own deceptions: he had to start doing more than telling a story about what might have happened, he had to start making up events that others would know about. One point that opened the case was Libby's claim that Tim Russert had told him that Plame was CIA. Russert's recollection of the conversation was completely different.

As the discrepancies began to pile up, Libby got caught. With the notes of Miller and Cooper, which showed that Libby told the truth about how he came by Valerie Plame's identity, the last bricks were in place. Fitzgerald then needed only to establish that Plame had taken reasonable care to protect her identity, and that there was no possibility that Libby had gotten the information about Plame from unofficial sources. It is for this behavior, namely lying to the FBI and to the grand jury, that Libby is going to be prosecuted to the fullest extent of the law. The indictment charges him with two counts of perjury, two counts of false statements, and one count of obstruction of justice.

This does not capture the full range and gravity of the charges against him. An act of perjury is lying about a material fact. Libby didn't merely lie once about how he came by Plame's identity, but over and over again, elaborating the lie with other lies, fabricating conversations to protect the lie, and asking others to lie to protect the lie. The indictment is filled with statements that Libby made to the grand jury which the prosecutor alleges are lies. This is not a technicality, nor a single moment of weakness, but a sustained campaign to present to law enforcement a fictitious story to avoid criminal jeopardy.

But what this indictment implies is weightier still. It states that there was official discussion of Plame's identity by officials of the executive branch. It implies that Wilson questioning the Niger story created a political problem for them which they felt they had to deal with, not by legal means, but by covert, and potentially illegal means. If Wilson had been leaking, then they could have simply had him arrested and charged with leaking classified national security information. But they knew that not only was Wilson telling the truth, but that they had to deal with him without invoking the law.

The indictment does not charge Libby with burning Plame because of a key unanswered question. One of the elements of the crime of revealing a secret identity is the unauthorized release of the information. The question unanswered, as Fitzgerald repeated at his press conference, is why Libby burned Plame, and under whose authority. Politically there is no good answer, whether legal or illegal, the burning of Plame was clearly a political act for political convenience, and not a matter of national security. But for the purposes of the law, Libby is only guilty if he was not supposed to reveal the information. The indictment notes that Libby signed the normal form to protect classified information. This means that if he did not have permission to burn Plame, or the permission was not legally given, he could be charged with revealing classified information.

But we don't know that yet, and according to Fitzgerald, Libby's obstruction of justice and perjury prevent us from knowing. He was almost inviting a new investigation to answer the real question of why Plame was burned. Libby tried to run out the clock, but in the end, he did not have enough blocking to do it.

This indictment leaves the field cluttered with amateur spies. The list of casualties is long. Judith Miller and Matt Cooper participated in a criminal attempt to obstruct justice, probably knowingly. Cooper lied to his readers, and Miller was prepared to lie should she write the story. Not only Libby, but other officials of the executive branch were involved in the effort to burn Plame and smear Wilson. Libby attempted to blame others for burning Plame, opening members of the press to the possibility of charges and investigation. Rove remains under investigation. Ari Fleischer lied in press briefings, and continued to protect Libby in public even after it became clear that his story was disintegrating.

And we still do not know why. Fitzgerald has answered key questions, he has established that the story told by right-wing spin sources is, and always was, a complete fabrication meant to deflect criminal charges away from the guilty. It establishes that Libby engaged in a two-year-long criminal campaign to conceal evidence of his actions, and blame others. It reveals that numerous other people in the executive branch, including Vice President Cheney, knew that he was lying to law enforcement officials and to the grand jury to protect himself.

Which leads to another question: Why did they tolerate this, knowing, as they did, from before the investigation, that Libby knew Plame's identity, that he had obtained that information through official channels, that he had acted on that information in an official capacity, and that he had revealed that information to reporters?

Already, Rep. Waxman has called for renewed hearings on the matter in Congress. Already there have been statements from Senator Edward Kennedy of Massachusetts on the gravity of this indictment. However, the opposition party in Congress has neither power to hold hearings officially, nor to subpoena witnesses and material.

Some questions cannot be answered by the Justice Department, but take the wide-ranging power of Congress, in its constitutionally-mandated duty, to oversee the executive branch. And it is up to the public whether a Congress of the same party as the President has been sufficiently attentive to that duty. This is a question that is not to be answered under the rules of criminal procedure, but through the ebb and flow of politics - a politics which Libby and others inside the executive branch acted to corrupt, and which is now turning upon them.

Stirling Newberry is an internet business and strategy consultant, with experience in international telecom, consumer marketing, e-commerce and forensic database analysis. He has acted as an advisor to Democratic political campaigns and organizations and is the the co-founder, along with Christopher Lydon, Jay Rosen and Matt Stoller, of BopNews, as well as being the military affairs editor of The Agonist.

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