A pattern is emerging in pre-trial arguments in the perjury and obstruction of justice case against former Cheney chief of staff Lewis Libby. That pattern is the recurring conflict between the Little Case and the Big Case.
The Little Case is the narrow, tightly defined charge that Libby lied to prosecutor Patrick Fitzgerald's grand jury. For example, did Libby lie when he testified that NBC's Tim Russert "said to me, did you know that Ambassador Wilson's wife…works at the CIA? And I said, no, I don't know that"? Did Libby lie when he testified that, when speaking to journalists about the information that Valerie Plame Wilson worked at the CIA, "I was very clear to say reporters are telling us that because in my mind I still didn't know it as a fact"? If Fitzgerald had his way, that is all the case would be about. At every hearing, and in every court filing, he has argued that the case is simply a matter of a few specific false statements allegedly made by Libby. Nothing else matters—just the Little Case.
The Big Case is what Fitzgerald originally set out to investigate: Who leaked Mrs. Wilson's identity, why was it done, and did it violate the Intelligence Identities Protection Act, the Espionage Act, or some other law? Fitzgerald has spent untold amounts of money—unlike the old independent counsels, Fitzgerald is not required to report what his office has spent on the case—and has covered every conceivable aspect of the disclosure of Mrs. Wilson's identity. He has questioned officials across the executive branch, including the president and vice president. He has learned about the Big Case as much as one man with subpoena power, no supervision, unlimited funds, and no hesitation to threaten reporters with jail can learn. He just doesn't want to talk about it.
But Libby's defense team, led by attorney Theodore Wells, does. They have argued that the Big Case is what's really important. What was going on when Mrs. Wilson's identity was revealed—the ongoing battle over pre-war intelligence, the "16 words," the attacks of Valerie Plame Wilson's husband, former ambassador Joseph Wilson, against the Bush administration, the White House's effort to push back—what was going at the time Libby was talking to reporters? What did he have on his mind? What was he trying to accomplish? The Big Case is the story of an administration under attack from Joseph Wilson and many others, trying to defend the reasons it went to war in Iraq. Libby might have simply forgotten some of the details, and because of that testified incorrectly, his lawyers contend, because he was focusing on the big picture. If Libby's defense team had its way, the whole thing—the Big Case—would be re-fought in the courtroom.
Judge Reggie Walton has tried to balance the two interests in his rulings over what evidence Fitzgerald will be required to turn over to Libby as both sides prepare for trial next January. But the most recent hearing on the matter, last Friday, showed that the conflict might ultimately be impossible to resolve.
The hearing began with what Walton hoped would be the "easiest to resolve" issue. By that he referred to Libby's request for documents created by the State Department, the CIA, the Executive Office of the President, and other federal offices concerning Joseph Wilson's trip to Niger. "I'm having some difficulty concluding that it is discoverable," Walton said, meaning that he doubted Fitzgerald should be forced to turn the documents over. For one thing, Walton said, he doubted prosecutors planned to bring any of that into the trial. Turning to Fitzgerald, he asked, "Does the government seek to introduce that evidence?"
"No," said Fitzgerald.
But Wells argued that he still needed the documents. There was a storm of controversy, Wells said, after Wilson published a blast against the Bush administration, an op-ed entitled "What I Didn't Find in Africa," in the New York Times in July 2003. Administration officials, including Libby, scrambled to respond—to, in Wells' words, "tell the public and the press that what Mr. Wilson said was wrong."
Libby and his colleagues in the Bush White House, Wells continued, had their hands full trying to get out the word that "Mr. Wilson's report contained some inaccuracies." Chief among those inaccuracies, although Wells did not dwell on it, was Wilson's assertion that he had proven that papers purporting to document a sale of uranium to Iraq had been forged. The Senate Intelligence Committee later showed that Wilson could have done no such thing, because the documents which he had supposedly debunked were not even in the possession of the government at the time Wilson said. Because of the inaccuracies in Wilson's highly-publicized story, Wells argued, Libby and others in the White House had to work very hard to answer his charges—something the jury should be allowed to know.
Fitzgerald rose to answer. "I'm not going to stipulate that Mr. Wilson was accurate on every thing," he said.
From that point on, the question of Joseph Wilson's credibility shadowed the discussion of other evidence. Wells argued that Wilson had made "inaccurate" statements quoted in a number of news reports. What if prosecutors cited any of those reports?
"The truth of what is in those articles would not be relevant," the judge said. Then he turned to Fitzgerald and said, "Does the government intend to introduce articles?"
"Yes, your honor," Fitzgerald said. Wilson's New York Times op-ed would be introduced, Fitzgerald continued—"but not for the truth." It would, in other words, be given to the jury to show what started the whole Plamegate affair, but Fitzgerald did not intend to argue that it was fully true.
His statement highlighted a recurrent issue in the Libby prosecution. In this case, the Libby side is vouching for the honesty of the defendant, and the prosecution is vouching for the honesty of the key witnesses, but no one is vouching for the honesty of Joseph Wilson. And that includes the judge. "I just don't intend to have this case become a forum for debating the issue of whether Mr. Wilson was right or the administration was right," Walton said.
Nevertheless, Walton gave Libby's defenders something to work with. "If the government introduced the [Wilson] article," he told Wells, "you can bring out material that goes to what was in the article." That could be a way for Libby to introduce the Big Case into the perjury prosecution. But Walton made clear he does not intend let that go very far. "I'm not going to let this case end up being a judicial examination of the legitimacy of the war," he told both sides.
In the course of the discussion, Wells dropped what might have been a bombshell had the public's attention been more focused on the Big Case. "I've got five witnesses who will say under oath that Mr. Wilson told them his wife worked for the CIA," Wells told the judge. Later, he said it again: "I can produce five witnesses on the stand to say, 'I know about it, the husband told me,'" Wells said.
That got to the questions that are at the heart of Fitzgerald's investigation: Who revealed the identity of Valerie Plame Wilson? Was she a covert CIA agent, and if so, who knew about it, and did the disclosure of her name damage national security?
The Libby side has asked for three things relating to those questions. The first is evidence showing that Mrs. Wilson's job status was classified. (Fitzgerald demurs whenever the word "covert" is mentioned, so the argument is about whether her status was "classified," even though most experts don't see a significant difference between the two.) The second is the CIA's original referral of the leak to the Justice Department. And the third is any assessment done of the damage caused by the leak.
Fitzgerald has so far refused to offer any evidence on any of those issues. In court Friday, he said, "The only thing we will seek to offer about her status is that it was classified," which seemed to suggest, for the first time, that he will produce evidence on that question. On the other hand, perhaps he will simply assert that her status was classified. And he continued to resist turning over either the CIA referral or a damage assessment. In fact, he said Friday, as he has earlier, that "We will not offer any proof of actual damages" caused by the leak, although he added that "the issue of potential damage will come up several times."
If Fitzgerald is allowed his way, we will likely never learn about some of the most important issues in his investigation. Not only is he refusing, so far, to turn over fundamental information about Valerie Plame Wilson, he is arguing that much of it doesn't really matter. In a court hearing on February 24, Fitzgerald said that, as far as the Libby case is concerned, whether Mrs. Wilson was covert—or even whether she worked for the CIA—was not important. "If she turned out to be a postal driver mistaken for a CIA employee, it's not a defense if you lie in a grand jury under oath about what you said," Fitzgerald told the judge.
That is as pure a statement as one could imagine of how the Libby prosecution has turned the Big Case of the CIA leak investigation into the Little Case of perjury against Libby. After two and half years of investigating, after putting every conceivable witness under oath, after jailing one journalist and threatening others with jail, Patrick Fitzgerald argues that it doesn't even matter if Valerie Plame Wilson worked for the CIA at all.
— Byron York, NR's White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President — and Why They'll Try Even Harder Next Time.
