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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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    A similar question has troubled me for some time now. Why do the pergery and false statement counts involve only discussions Libby had with journalists? Is it possible that Libby never tried to persuade the grand jury that he first learned of Plame from reporters? Fitzgerald must have asked him directly where he first learned about Plame. If he lied about this, it would be pretty easy to prove. Why is there no pergery charge for doing so? Or perhaps Libby actually admitted to the grand jury that he first learned of Plame from government sources, but claimed that at the time, he thought he had learned this information from reporters, and that's what he told Cooper and Miller. The little snippet of testimony in the indictment almost makes it sound like Libby is conceding that what he claims to have told the reporters was not in fact correct: "I was very clear to say reporters are telling us that because in my mind I still didn't know it as a fact. I thought I was all I had was this information that was coming in from the reporters." If his only lie involved what he told reporters (as opposed to where he actually learned about Plame), he will have an easier time persuading a jury that he just got confused. Another troubling issue is the similarity between the conversation Libby claims to have had with Russert, and the conversation he actually had with Cooper. Libby said Russert provided information about Wilson and Plame, and asked for confirmation. That is in fact what Cooper did, not Russert. What if Libby simply confused Cooper and Russert? Again, a jury might believe that to be an honest mistake. Don't get me wrong. I have little doubt that Libby and others conspired to leak this information to the press. But I've wondered how he could be so stupid as to cook up a story for the grand jury that is so easy to disprove. On the other hand, if his only lies involve what he told reporters rather than where he got his information, it may be harder to nail him.

    If one considers Fitzgeralds statement about "Sand thrown in the referees eyes." and you add in the fact that he only charged Libby, there may be a message to libby's lawyer in it. Here what I would have gotten from it. "If Libby flips and comes clean, that means get the sand out of fitzgerald's eyes, he can avoid Jail otherwise no mercy and he's going to be the fall guy. I don't know about anyone else but considering Libby is looking at thirty years any lawyer worth his salt would seriously encourage Libby to make a deal!

    I think one aspect left out here is Libby kept copious notes. It is rather difficult for him to claim "absent mindedness" when he could have referred to his note in advance of his testimony. Although I could be wrong about his notes if they were confiscated by Fitz and he no copy.

    You're the lawyer, I am just a banker, but could the lack of the conspiracy charge mean that charging conspiracy is still a sword to be hanging over both Cheney's and Libby's heads for later on? And putting in a conspiracy charge here would lend to the critique (valid or not) of how can the prosecutor charge only one person of a conspiracy? Would you clarify your statement here: charging two or more offenses in a single count ... violating the defendant's constitutional right to a unanimous jury verdict? What is the history of that theory (for lack of a better word, or what is the word I should be using?) (feel free just to point to legal case). Thank you,

    Re: Libby and Perjury: Count Five of the Indictmen (none / 0) (#5)
    by squeaky on Sat Dec 17, 2005 at 01:05:37 PM EST
    JPF-I agree that Fitzgerald is selectively showing a few cards to the potential conspirators to loosen them up, be it Libby Cheney et. al. I think that the answer to your question regarding two offenses in one count is a purely mathematical one: Jeralyn proposes:
    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.


    Wow - incredible - hope this gets some attention.

    Re: Libby and Perjury: Count Five of the Indictmen (none / 0) (#7)
    by Joe Bob on Sat Dec 17, 2005 at 01:05:37 PM EST
    A related, though slightly tangential comment: I recall reading a couple of articles regarding how White House officials are required to handle classified information. There is an oath of office, enforceable by criminal penalties, wherein the officials are not only supposed to protect classified information they are privy to, but they are also foresworn from verifying information others approach them with. E.g.: If a reporter calls up Scooter Libby and says, "I hear Valerie Wilson is a CIA operative.", Scooter is sworn to say nothing beyond, "I can neither confirm nor deny that is true."

    No one has said Libby kept copious notes of his discussions with these reporters. We haven't seen what else he told the grand jury. If he testified, "yes, I had the CIA look into it, and that's how I learned that Wilson's wife worked for the CIA, but I did not tell that to reporters," it might be very difficult to get him on perjury based on those few false statements. His "faulty memory" defense would be more credible. Of course, if that's what he said, it would be easier to get him on the underlying crime. Fitzgerald has not charged the underlying crime, however. Libby is not stupid. He may have admitted to outing Plame, while giving Fitzgerald reason to believe that doing so was not a crime (e.g., by claiming he didn't think she was under cover).

    Jeralyn, I would be interested in your legal analysis of the indictment. Some other legal beagles have suggested that some of the counts in the indictment are duplicitous (i.e., charges the defendant with two or more offenses in one count). Do you agree?

    This is the first count I've examined from a legal standpoint, as opposed to for the narrative, and I'm not impressed. Can you say: superseding indictment?

    Re: Libby and Perjury: Count Five of the Indictmen (none / 0) (#11)
    by Tom Maguire on Sat Dec 17, 2005 at 01:05:37 PM EST
    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. A guess - in June/July 2003, Libby really had no plan or conspiracy. An investigation is announced, he decides Plame's status was classified, realizes he can't explain his leaks, and invents his story - yes, I heard about her internally, but I kept quiet until I heard from reporters, then I sourced it to them. It might have worked, since leak investigations normally peter out, and reporters don't talk, but instead, here we are. And for Fitzgerald, Libby's lie makes his job easier. To charge under the Espionage Act, Fitzgerald has to start by proving Libby lied about sourcing it to reporters, and then prove other elements (which may or may not be easy). By charging under perjury/false statements, Fitzgerald can pretty much end there. Either way, Libby goes to jail. Of course, when Libby's apologists (my sometime occupation) argue that the absence of an indictment under the Espionage Act proves there was no misuse of classified info, well, maybe yes, maybe no. I have little doubt that Libby and others conspired to leak this information to the press. But I've wondered how he could be so stupid as to cook up a story for the grand jury that is so easy to disprove. I have little doubt that if Libby had thought this through in July 2003, he would have had a better plan. Miller and Cooper were not bad picks for alibi witnesses (Cooper is a newby reporter), but what idiot would pick Russert as the key reporter in a he said/he said dispute? Pick some reporter who is a blowhard anyway (Chris Matthews) talk about the Wilson case, and later say whatever you want. Matthews could deny anything and everything, but where is the credibility? I could carve a better plan out of a banana.