Contrary to my earlier suggestion, Libby will not be going with an insanity defense. Instead, he will hire Steve Martin as his new counsel and use the closely-related "I Forgot" defense (press release here).
That brings us to the fall of 2003. When it was clear that Valerie Wilson's cover had been blown, investigation began. And in October 2003, the FBI interviewed Mr. Libby. Mr. Libby is the vice president's chief of staff. He's also an assistant to the president and an assistant to the vice president for national security affairs.
The focus of the interview was what it that he had known about Wilson's wife, Valerie Wilson, what he knew about Ms. Wilson, what he said to people, why he said it, and how he learned it.
And to be frank, Mr. Libby gave the FBI a compelling story.
What he told the FBI is that essentially he was at the end of a long chain of phone calls. He spoke to reporter Tim Russert, and during the conversation Mr. Russert told him that, Hey, do you know that all the reporters know that Mr. Wilson's wife works at the CIA?
And he told the FBI that he learned that information as if it were new, and it struck him. So he took this information from Mr. Russert and later on he passed it on to other reporters, including reporter Matthew Cooper of Time magazine, reporter Judith Miller of the New York Times.
And he told the FBI that when he passed the information on on July 12th, 2003, two days before Mr. Novak's column, that he passed it on understanding that this was information he had gotten from a reporter; that he didn't even know if it was true.
And he told the FBI that when he passed the information on to the reporters he made clear that he did know if this were true. This was something that all the reporters were saying and, in fact, he just didn't know and he wanted to be clear about it.
Later, Mr. Libby went before the grand jury on two occasions in March of 2004. He took and oath and he testified. And he essentially said the same thing.
He said that, in fact, he had learned from the vice president earlier in June 2003 information about Wilson's wife, but he had forgotten it, and that when he learned the information from Mr. Russert during this phone call he learned it as if it were new.
When he passed the information on to reporters Cooper and Miller late in the week, he passed it on thinking it was just information he received from reporters; that he told reporters that, in fact, he didn't even know if it were true. He was just passing gossip from one reporter to another at the long end of a chain of phone calls.
It would be a compelling story that will lead the FBI to go away if only it were true. It is not true, according to the indictment.
In fact, Mr. Libby discussed the information about Valerie Wilson at least half a dozen times before this conversation with Mr. Russert ever took place, not to mention that when he spoke to Mr. Russert, Mr. Russert and he never discussed Valerie Wilson or Wilson's wife.
He didn't learn it from Mr. Russert. But if he had, it would not have been new at the time.
Let me talk you through what the indictment alleges.
The indictment alleges that Mr. Libby learned the information about Valerie Wilson at least three times in June of 2003 from government officials.
Let me make clear there was nothing wrong with government officials discussing Valerie Wilson or Mr. Wilson or his wife and imparting the information to Mr. Libby.
But in early June, Mr. Libby learned about Valerie Wilson and the role she was believed to play in having sent Mr. Wilson on a trip overseas from a senior CIA officer on or around June 11th, from an undersecretary of state on or around June 11th, and from the vice president on or about June 12th.
It's also clear, as set forth in the indictment, that some time prior to July 8th he also learned it from somebody else working in the Vice President's Office.
So at least four people within the government told Mr. Libby about Valerie Wilson, often referred to as Wilson's wife, working at the CIA and believed to be responsible for helping organize a trip that Mr. Wilson took overseas.
In addition to hearing it from government officials, it's also alleged in the indictment that at least three times Mr. Libby discussed this information with other government officials.
It's alleged in the indictment that on June 14th of 2003, a full month before Mr. Novak's column, Mr. Libby discussed it in a conversation with a CIA briefer in which he was complaining to the CIA briefer his belief that the CIA was leaking information about something or making critical comments, and he brought up Joe Wilson and Valerie Wilson.It's also alleged in the indictment that Mr. Libby discussed it with the White House press secretary on July 7th, 2003, over lunch. What's important about that is that Mr. Libby, the indictment alleges, was telling Mr. Fleischer something on Monday that he claims to have learned on Thursday.
In addition to discussing it with the press secretary on July 7th, there was also a discussion on or about July 8th in which counsel for the vice president was asked a question by Mr. Libby as to what paperwork the Central Intelligence Agency would have if an employee had a spouse go on a trip.
So that at least seven discussions involving government officials prior to the day when Mr. Libby claims he learned this information as if it were new from Mr. Russert. And, in fact, when he spoke to Mr. Russert, they never discussed it.
I added emphasis to the fact that Libby modified his story when he spoke to the grand jury, and reflected the fact that he had spoken about Ms. Plame with Dick Cheney in June. The NY Times had front-paged that Cheney revelation on Oct. 25, and I had argued that this was almost surely old news to the prosecutior, and was based on Libby's notes. It looks as if I had that right. Where I went astray, however, was in suggesting that the leaks about Libby's "Blame the media" strategy were a misdirection play - evidently, he meant it.
However - one wonders whether the other contacts mentioned by Fitzgerald were in Libby's "copious" notes. If so, Libby needs to sue his attorneys for malpractice, since they should have reviewed that material before submitting it to Fitzgerald and allowing Libby to testify. Of course, attorney ineptitude notwthstanding, if his notes included these contacts then it is easier for Libby to argue that he had no real intention of obstructing the investigation. On the other hand, if they were not in his notes, why not?
On a related note, the queston of just what prompted Libby to call Russert continues to intrigue me. Here is what the indictment says about it:
On or about July 10, 2003, LIBBY spoke to NBC Washington Bureau Chief Tim Russert to complain about press coverage of LIBBY by an MSNBC reporter. LIBBY did not discuss Wilson’s wife with Russert.
But did they discuss Joe Wilson? If they did, Libby's story looks more like bad memory and less like a total invention.
How might we guess what they discussed? Well, one idea would be to check the MSNBC archives for July 9, 2003 (or July 8, or July 7), and see what mention of Libby (or Cheney, or Niger) might have prompted an outraged call from Libby to Russert.
So far, I am finding that to be easier said than done, but perhaps someone else will have better luck.
[UPDATE: Michael Crowley of The Plank at TNR strides ahead of me as if wearing seven-league boots, and nominates a July 8 Chris Matthews rant about Libby and Niger and Wilson. Hmm - so Libby and Russert may very well have been discussing Wilson and his trip? How about that - a whiff of oxygen for Libby.]
As to the media tone at the time, the ABC Note for July 11, 2003 is quite interesting:
The Niger story has been around (for what seems like) forever, but started to build to a hotter political boil after the Joseph Wilson op-ed over the weekend.
...this cycle's press coverage is by any objective standard tilted completely towards the Democrat(ic) point of view.
From the Howard Dean two-way on Good Morning America to John Kerry with a major role in the Andrea Mitchell spot on Nightly News last night, to John DiStaso giving Dean plenty of room to make his case in the Union Leader. LINK — the press is obviously right at this moment on the same, shall we say, wavelength with the Democratic Party on all aspects of the Iraq story.
So Libby might have had plenty to be irritated about.