Libby: The Charged Lies in Counts 1, 2 and 5
In preparation for Tuesday's closing arguments, it may be helpful to distill the charges and alleged lies of Scooter Libby, from the Government's point of view, since it has the burden of proof. In subsequent posts, I'll look at the defense arguments and the points of contention that still exist over jury instructions.
Note, this series of posts is not sexy. They are dry and may not be of interest to anyone not closely following the legal aspects of the case.
There are five counts against Libby. The first is obstruction of justice. Counts two and three are false statements to federal investigators in the fall of 2003; Counts four and five allege perjury before the grand jury in March, 2004.
Yesterday, the Government filed this brief outlining its position on the verdict forms the jury should receive as to counts 1, 2 and 5.
According to the Government, to convict Libby of obstruction of justice, it must unanimously conclude at least one of these statements which Libby made to the grand jury is false:More...
1. That when Mr. Libby spoke with Tim Russert of NBC News, on or about July 10, 2003, Mr. Russert asked Mr. Libby if Mr. Libby knew that Wilson’s wife worked for the CIA, and told Mr. Libby that all the reporters knew it.
2. That when Mr. Libby spoke with Tim Russert of NBC News, on or about July 10, 2003, Mr. Libby was surprised to hear that Wilson’s wife worked for the CIA.
3. That when Mr. Libby spoke with Mr. Cooper of Time magazine on or about July 12, 2003, Mr. Libby advised Mr. Cooper that he had heard that other
reporters were saying that Wilson’s wife worked for the CIA, and further advised him that Mr. Libby did not know whether this assertion was true.
The Government wants the jury to be told in order to find Libby guilty of obstruction of justice,
.... the government must prove beyond a reasonable doubt that at least one of the false statements or representations alleged in Count 1 was false, and all of you must agree on which statement or representation was false. If you are unable to unanimously agree that at least one of the statements or representations alleged in Count 1 was false, then you must find the defendant not guilty of Count 1.
As to the Count 2, the charge of false statements made to federal investigators in the fall of 2003, the Government argues the jury must unanimously find one of these statements by Libby to be false:
1. During a conversation with Tim Russert of NBC News on July 10 or 11, 2003, Mr. Russert asked Mr. Libby if Mr. Libby was aware that Mr. Wilson’s wife worked for the CIA; Mr. Libby responded to Mr. Russert that he did not know that, and Mr. Russert replied that all the reporters knew it.
2. During a conversation with Tim Russert of NBC News on July 10 or 11, 2003, Mr. Libby was surprised by Mr. Russert’s statement that Mr. Wilson’s wife worked for the CIA because, while speaking with Mr. Russert, Mr.Libby did not recall that he previously had learned about Wilson’s wife’s employment from the Vice President.
The Government wants the jury to be told:
...all of you must agree on which statement or representation was false, fictitious or fraudulent. If you are unable to unanimously agree that at least one of the statements or representations alleged in Count 2 was false, fictitious or fraudulent, then you must find the defendant not guilty of Count 2.
On the perjury charge in Count 5 of the Indictment, the Government charges Libby lied when he made these two statements.
a. Testimony Given on or about March 5, 2004 Regarding a Conversation With Matthew Cooper on or About July 12, 2003:
Q. And it's your specific recollection that when you told Cooper about Wilson's wife working at the CIA, you attributed that fact to what reporters –
Q. – plural, were saying. Correct?
A. 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.
. . . .
Q. And at the same time you have a specific recollection of telling him, you don't know whether it's true or not, you're just telling him what reporters are saying?
A. Yes, that's correct, sir. And I said, reporters are telling us that, I don't know if it's true. I was careful about that because among other things, I wanted to be clear I didn't know Mr. Wilson. I don't know – I think I said, I don't know if he has a wife, but this is what we're hearing.
The second statement is:
b. Testimony Given on or about March 24, 2004 Regarding Conversations With Reporters:
Q. And let me ask you this directly. Did the fact that you knew that the law could turn, the law as to whether a crime was committed, could turn on where you learned the information from, affect your account for the FBI when you told them that you were telling reporters Wilson's wife worked at the CIA but your source was a reporter rather
than the Vice-President?
A. No, it's a fact. It was a fact, that's what I told the reporters.
Q. And you're, you're certain as you sit here today that every reporter you told that Wilson's wife worked at the CIA, you sourced it back to
A. Yes, sir, because it was important for what I was saying and because it was – that's what – that's how I did it.
. . . .
Q. The next set of questions from the Grand Jury are – concern this fact. If you did not understand the information about Wilson's wife to have been classified and didn't understand it when you heard it from Mr. Russert, why was it that you were so deliberate to make sure that you told other reporters that reporters were saying it and not assert it as something you knew?
A. I want – I didn't want to – I didn't know if it was true and I didn't want people – I didn't want the reporters to think it was true because I said it. I – all I had was that reporters are telling us that, and by that I wanted them to understand it wasn't coming from me and that it might not be true. Reporters write things that aren't true sometimes, or get things that aren't true. So I wanted to be clear they didn't, they didn't think it was me saying it. I didn't know it was true and I wanted them to understand that. Also, it was important to me to let them know that because what I was telling them was that I don't know Mr. Wilson. We didn't ask for his mission. That I didn't see his report.
Basically, we didn't know anything about him until this stuff came out in June. And among the other things, I didn't know he had a wife. That was one of the things I said to Mr. Cooper. I don't know if he's married. And so I wanted to be very clear about all this stuff that I didn't, I didn't know about him. And the only thing I had, I thought at the time, was what reporters are telling us.
. . . .
Well, talking to the other reporters about it, I don't see as a crime. What I said to the other reporters is what, you know – I told a couple reporters what other reporters had told us, and I don't see that as a crime.
The Government wants the jury to be told while Libby is charged with lying to the grand jury on the above two occasions,
The government is not required to prove that the defendant gave false testimony on both occasions.
To find the defendant guilty of Count 5, the government must prove beyond a reasonable doubt that the defendant made false statements to the grand jury under oath on at least one occasion alleged in Count 5, and all of you must agree on which occasion the defendant made the false statement. If you are unable to unanimously agree that the defendant gave false testimony under oath to the grand jury on at least one of the two occasions charged in Count 5, then you must find the defendant not guilty of Count 5.
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