Libby and Perjury: Count Five of the Indictment
Count Five of Lewis Libby's indictment (html version) alleges that Libby lied to the grand jury on both March 5, 2004 and March 24, 2004 when tesifying about his conversation with Matthew Cooper and other unnamed reporters.
The recitation of phrases used by Libby sets off alarm bells in my head. They are the same as Cheney used in the September 14, 2003 edition of Meet the Press.
Libby in Count 5 (p. 21, Par. 2B)
"I don't know Mr. Wilson. We didn't ask for his mission....I didn't see his report."
Cheney on Meet the Press:
I don’t know Joe Wilson....I don’t who sent Joe Wilson. He never submitted a report that I ever saw when he came back.
On a related note, take a look at Libby's statements to the grand jury in this count. It sounds like Libby is trying to explain his scheme to the grand jury.
Libby states that because he didn't want reporters to think the information about Wilson's wife was coming from him, he told them it came from other reporters and that he didn't know for a fact the information was true. He asserts that he told the reporters he didn't even know for a fact that Joe Wilson was married.
It's not entirely clear to me whether Libby is affirming to the grand jury that this is what he told reporters or whether he is telling the grand jury that this is what he believed to be true at the time. Transcripts are flat pieces of paper, devoid of the nuances in live speech. However, Fitzgerald seems certain it's the former, because the count alleges that Libby lied to the grand jury about what he claims to have told reporters.
I'm not so sure Libby wasn't describing for the grand jury why he lied to reporters.
Why couldn't this have been the plan agreed upon by Libby, Catherine Martin and/or Cheney on Air Force Two to Norfolk on July 12, 2003? It was after he returned on July 12 that he spoke to Matthew Cooper and it is that precise conversation with Matthew Cooper that is specified in the perjury charge in Count 5.
Also, while the count doesn't detail any conversations with reporters other than Cooper, it alleges that Libby lied when he said he told this story to Cooper and "other reporters." Does this include Tim Russert? If so, how would Fitzgerald know when NBC issued a statement saying that Russert only gave testimony under oath in his deposition as to what he told Libby, not what Libby told him?
It sure sounds to me like the mechanics of the plan to leak the information about Wilson was cemented, if not formed, on Air Force Two, as a follow up to Ari Fleischer's press gaggle attack on Wilson from Africa, and that the plan was to call reporters and leak the information about Wilson and his wife as gossip coming from other reporters, while shielding themselves by claiming to the reporters that they couldn't be certain the information was true.
If this was what Libby was trying to express to the grand jury, we should have seen a count charging conspiracy to disclose classified information or leak an undercover operative's identity. The fact that we didn't seems to indicate that Fitzgerald doesn't believe this was a real plan, only a plan Libby made up for the grand jury.
From a legal standpoint, I don't like Count Five. Why isn't it duplicitous - charging two or more offenses in a single count, thereby violating the defendant's constitutional right to a unanimous jury verdict?
The count alleges that Libby lied to the grand jury on both March 5, 2004 and March 24, 2004. It alleges in separate sections that Libby lied to Matthew Cooper and to other unnamed reporters. What if at trial only six members of the jury decided he was guilty of perjury on March 5 and the other six decided he lied on March 24? In that event there would not be 12 jurors who agreed he lied on both dates. What if the trial jury decided Libby lied when talking to Cooper but not to other reporters? How could they return a single verdict on that count?
This is the first count I've examined from a legal standpoint, as opposed to for the narrative, and I'm not impressed.
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