Libby, Cooper, Russert and Counts 2 and 3 of the Indictment

By Jeralyn, Section Lewis Libby Trial Coverage
Posted on Wed Feb 28, 2007 at 12:06:41 PM EST
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As noted here, the jurors' question concerned the false statement charge against Scooter Libby with respect to Count 3 of the Indictment. The jurors were unsure whether they had to find that Libby lied to the FBI in October, 2003 when he said he told Matt Cooper in July, 2003 that reporters were telling the Administration that Joseph Wilson's wife worked for the CIA but he didn't know if that was true.

It's interesting to me that the jury didn't have a question on Count 2 of the Indictment, a similar false statements charge with respect to Tim Russert.

To find Libby guilty on count 2, they must agree that (either or both):

Libby lied to the FBI when he told them in October or November of 2003 that during a conversation with Tim Russert in July, 2003, Russert asked him if he were aware that Joseph Wilson's wife worked for the CIA; that Libby told Russert he didn't know that and that Russert responded all the reporters knew it.

Libby lied to the FBI when he told them in October or November of 2003 that he was surprised by Russert's statement because at the time, he didn't remember that he had earlier learned about Wilson's wife employment from Vice President Cheney.

The jury must only find one of the two statements was false to find Libby guilty, but it must be unanimous. In other words, all 12 must agree on one or both of those statements being false.

Of course, it's not enough that Libby made a false statement. The false statement also has to be material, meaning it was an important one that had the capacity to "impair or pervert" (affect or influence)the FBI's investigation.

In deciding materiality, they can consider the possible crimes being investigated by the grand jury.

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Libby, Cooper, Russert and Counts 2 and 3 of the Indictment | 3 comments (3 topical)

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Intent? (none / 0) (#1)
by Tom Maguire on Wed Feb 28, 2007 at 08:19:02 PM EST

Of course, it's not enough that Libby made a false statement. The false statement also has to be material

I have the idea that intent also matters - the defense did note that Libby may sincerely believe he had this revelatory phone call with Russert, but "in reality" (whatever that may be) he had it with Bob Novak.

In which case, Libby's testimony is false but not deliberately so.

As to materiality, I have no idea how the jury will slice that.

Anyway, my guess - of the three scenarios on offer (1- Libby knows he had no revelatory phone call with Russert or anyone else; 2- Libby is sincere but wrong, and the call was with Novak or someone else; 3- Libby is right and Russert is confused) only (1) leads to a conviction.

And maybe it is my partisan lenses affecting my vision, but I can't see how a jury could conclude that (1) has a 99% probability of truth, with (2) and (3) being excluded at a "reasonable doubt" threshold.

Even Tim Russert's sainted mum, who presumably excludes (3), has no particular basis for also excluding (2).

All that said - regardless of how the jury comes out on that aspect, there is still the "was he surprised" issue, which is essentially independent of the other question.

Yes, Intent Also Matters (none / 0) (#2)
by Jeralyn on Wed Feb 28, 2007 at 08:45:00 PM EST

Sorry, Tom, I just took that as a given since intent is an element of almost every crime. About the only one I can think of now that doesn't require intent is not wearing a seat belt.

For the false statement charge, the instructions say Libby had to have wilfully made the false statement, knowing it was false.


: it's hard for me (but I'm not an the jury) (none / 0) (#3)
by Deconstructionist on Thu Mar 01, 2007 at 10:31:54 AM EST

to see how anyone could conclude that the materiality element is not met as to all of the counts.
Clearly the matters being addressed in the statements forming the charges go directly to the hert of the matters being investigated and do not pertain to collateral matters.
Intent is wide open in my view but materiality seems beyond dispute.