“Rashomon” is the cinematic classic in which a story of rape and murder is told from the perspective of four of the people involved. But what is “the truth”, and in what ways are the four people shading their versions of events? The viewer is left to wonder.
Now, in a courtroom in Washington DC, Special Counsel Fitzgerald has updated this classic with his own unique twist – rather than focus on an underlying incident fraught with drama he has asked a number of witnesses to present their version of events which seemed inconsequential at the time and only became significant in hindsight. Next week the jury will be left to puzzle out who is telling the truth, who (if anyone) is deliberately lying, and who is simply confused.
In this production of “Rashofitz” Dick Cheney’s former Chief of Staff “Scooter” Libby is on trial for obstructing an investigation into the circumstances in which Valerie Plame’s CIA affiliation was leaked to reporters. Valerie Plame is the wife of former Ambassador Joe Wilson, who had been asked by the CIA travel to Niger in 2002 to investigate a report that Saddam Hussein was attempting to acquire uranium there. In the spring and summer of 2003, as the US military occupied Iraq and failed to find significant evidence of Saddam’s weapons of mass destruction, Joe Wilson became an anonymous and then public critic of the Administration’s handling of pre-war intelligence. His claim, as reported by Nick Kristof in May 2003 – he had traveled to Niger at the request of the Vice President, had come back with information that did not help make the case for war, and was consequently ignored.
As the Vice President’s Chief of Staff, I. Lewis Libby was one of many Administration officials who attempted to respond to this criticism. In the course of presenting the Administration perspective, Libby and others mentioned to reporters that Valerie Plame, not the Vice President, had played a role in initiating Wilson’s trip. Bob Novak published this in a column on July 14, which eventually triggered an investigation – apparently, Valerie Plame’s status as a CIA officer was classified information.
When asked about his role the story Libby told to investigators struck them as deeply improbable: Libby presented investigators with a diary note from approximately June 12, 2003 and said that, as best he could then recall, he had been told by Dick Cheney that Valerie Wilson was at the Counter Proliferation Division of the CIA. However, Libby went on, this information must have gone in one ear and out the other, because he had no recollection of this phone call, or meeting, or whatever, and had not retained the information.
What Libby did retain is a dramatic phone call with Tim Russert of Meet The Press on July 10 or 11 in which Tim Russert told Libby that “all the reporters knew” that Valerie Wilson was with the CIA and had played a role in arranging her husband’s trip. Armed with what he then saw as this “new” information, Libby then leaked this tidbit to Judy Miller of the NY Times and confirmed it to Matt Cooper of TIME on July 12, in each case describing it as reporter gossip
Investigators were skeptical. Libby had been deeply involved in defending the Administration to reporters – surely he would not have forgotten this interesting bit of gossip about Joe Wilson while focusing so intently on rebutting his charges to the press. (Snide aside - rather than “rebut”, Libby’s critics prefer the word “discredit”).
And that is the basis for the “Rashofitz” trial. The prosecution put on a parade of Administration witnesses with the objective of demonstrating that Libby had been repeatedly informed about Ms. Wilson but the presentation arguably fell a bit short of the mark – the real message seemed to be that Ms. Wilson was a minor, forgettable detail of a much larger story:
Catherine Martin, who did press relations for Dick Cheney, said that she mentioned Ms. Wilson to Dick Cheney and Lewis Libby on June 11 or 12 (matching the date on Libby’s note) after learning about her from her CIA counterpart, but that she never heard Libby mention her again. Ms. Martin did not describe Libby as reacting to the information.
Robert Grenier of the CIA told the trial jury that he had mentioned Ms. Wilson to Libby on June 11; under cross-examination he admitted that in 2003 he had told the FBI he couldn’t remember mentioning her; he repeated that to the grand jury on 2004 and only “remembered” telling Libby about her in 2005. He did not describe Libby as reacting to the information.
Marc Grossman, Under Secretary of State, told the jury he mentioned Ms. Wilson to Libby outside a meeting with no witnesses. Under cross-examination he admitted that he had told the FBI that he revealed this to Libby over the phone. He did not describe Libby as reacting to the information.
Craig Schmall of the CIA told the jury he mentioned Ms. Wilson to Libby on June 14. Under cross-examination he admitted that he had absolutely no recollection of the conversation, but assumed he had said something about Joe and Valerie Wilson because it was in his notebook. He did not describe Libby as reacting to the information.
At this point the prosecution case could be summarized as “Libby could not have forgotten about Ms. Plame even though most of these people did”. But the parade of the puzzled continued.
Ari Fleischer, formerly the White House press secretary, told the jury of a dramatic lunch with Libby on July 7 during which Libby told Fleischer about Ms. Plame and described the news as “hush hush and on the qt”. Mr. Fleischer was also emphatic that there are protocols for transmitting classified information to the press secretary and “hush hush” is not one of them; consequently, he took this tidbit as a bit of newsworthy gossip, just as Danny DeVito’s character in “LA Confidential” would have done.
Mr. Fleischer admitted that he had subsequently learned of Ms. Plame’s role in the Wilson trip while on a Presidential visit to Africa, and said he leaked it to John Dickerson (then of TIME, now with Slate) and David Gregory of NBC News on the morning of July 11 in Africa. But wait! John Dickerson disputed this version in print and for reasons that remain mysterious, Special Counsel Fitzgerald did not obtain sworn testimony from Messrs. Gregory and Dickerson; David Gregory has not been heard from, demonstrating yet again the power and many uses of duct tape.
On cross-examination Mr. Fleischer denied leaking information about Ms. Plame to Walter Pincus of the Washington Post. Eventually Mr. Pincus was called as a defense witness and testified that Mr. Fleischer had leaked to him about Valerie Plame.
David Addington told the jury that sometime between July 7 and 12 Libby asked him about the paperwork that would be associated by a trip originated by the CIA involving a relative. The implication was that Libby was looking for proof that Joe Wilson had been sent by his wife. However, in his original statement to the FBI, Addington did not mention anything about a relative; in that case, the implication would be that Libby was looking for proof that it was the CIA, not the Vice President, that sent Joe Wilson.
That exhausted the Special Counsel’s display of Administration witnesses with any evidence that Libby had taken an interest in Valerie Plame. However, he then introduced some reporters.
Matt Cooper of TIME testified that he first learned of Ms. Plame from Karl Rove on July 11. He then asked Libby about her on July 12 as part of a much broader discussion about Wilson’s trip and pre-war intelligence, and Libby confirmed his information by saying something like “I heard that too”. Cooper’s notes were a cryptic jumble and he did not email anything about Libby’s “confirmation” to his editors as he had with Rove.
Judy Miller testified that Libby first told her about Ms. Plame at a meeting on June 23. However, her memory of this conversation was sparked by her notes – she originally told the grand jury that she had no memory whatsoever of meeting Libby on June 23, and believed she may have spoken with his assistant. (And how did Fitzgerald learn of this meeting? Contra the fantasies of the Fitzgerald fan club, Libby had testified that he believed he had met with her in May or June, and suggested that Fitzgerald check his calendar).
Ms. Miller also said that she met with Libby on July 8; the primary focus was Libby’s leak of the National Intelligence Estimate, but he also mentioned Ms. Plame. Oddly, her notes showed that Libby told her that Plame worked in the WINPAC area of the CIA. There is no evidence that Libby had been told that, nor is it accurate – just as his June 12 note said, she was with the Counter Proliferation Division.
Finally, Libby and Miller spoke on July 12, and, she says, Plame was discussed a third time. Libby’s version is that this was the only time he discussed Plame with Miller.
On cross examination, Ms. Miller’s memory became a bit of a challenge. “Valery Flame” was in her notebook – she didn’t think it was from Libby, but had no idea where it came from. Joe Wilson’s phone number was in her book but she had no idea where she got it and wasn’t sure whether she had spoken with Wilson or not (let’s add that in January 2004 the Wilson’s implied to Vanity Fair that Ms. Plame was with WINPAC). She believed she had spoken with other people about Valerie Plame but could not remember any names. She believed she first heard of Ms. Plame from Libby on June 23 but could not rule out earlier sources.
And the prosecution finally got to Tim Russert of Meet The Press. Russert’s story was simple – Libby called him on July 10 or 11 to complain about coverage on the Chris Matthews Show of the Niger trip and the Vice President’s role. Russert denied any possibility that he had known about Valerie Plame prior to reading it in the July 14 Novak column but also said that reporters in his newsroom shared information.
Well. An obvious problem is that David Gregory allegedly received a leak from Ari Fleischer on the morning of the 11th. A second problem – the Robert Novak column had been put on the wire services late in the morning on July 11th. (Bold Prediction – when Russert climbs down, he will say, gee, I must have read the Novak column off the wire a bit early – I remember the column but not the date.)
A third problem – Andrea Mitchell of NBS News, who had been covering the Wilson/Niger/uranium story closely in June and July, said on October 3 2003 that it was “widely known” among reporters following the story that Wilson’s wife was with the CIA, although she has since denied it and explained that she mis-spoke. After much learned argument, the judge refused to let the defense introduce this fact – apparently, it might prompt them to engage in unnecessary speculation about Mitchell and Russert’s credibility.
A fourth problem – Russert had been approached by the FBI and chatted with them freely in November 2003, since in his view Libby had called as a complaining viewer rather than a source. However, in June 2004 Russert put on a show of resisting a grand jury subpoena, during which he filed a misleading affidavit with the judge – he insisted that cooperating with the grand jury would diminish the confidence other sources would have in NBC News, but failed to disclose the seemingly-material fact of his prior cooperation with the FBI. Interestingly, Fitzgerald played along with this deception; in conjunction with the decision not to subpoena Mitchell or Gregory, one might think he was a bit cozy with his star witness at NBC.
And a fifth problem – the original notes of Russert’s FBI interviews have, well, been lost by the prosecution. However, the testimony of Agent Eckenrode was introduced as a stipulation – in November 2003, Russert said he did not remember mentioning Plame to Libby but could not rule it out. Apparently, it only became impossible later.
This week a jury will be asked to sort this out. Was Libby told about Ms. Plame so often and emphatically in early June that beyond a reasonable doubt he could not have forgotten her?
Was the evidence offered by Fleischer, Miller, and Addington proof beyond a reasonable doubt that Libby had in fact retained the Plame information prior to his July 10 chat with Russert?
Did the Russert call actually happen as Libby described it, or will a jury find beyond a reasonable doubt, that Russert’s logic (I didn’t know about Plame until the Novak column so it can’t be true) is honest and accurate?
Was Libby deliberately misleading the grand jury when he described the Russert call or was it an honest mistake? Robert Novak testified that, having learned the Plame information from Richard Armitage of State and Karl Rove (needs no introduction), he called Libby on the July 9 and may have asked him about Plame.
Finally, what was Libby’s motive to lie? As a matter of law, the prosecutor is not obliged to provide one; as a practical matter, juries like to hear them.
And here the haze continues – superficially, it appears that Libby’s story is intended to shield him from a charge of deliberately leaking classified information, since he claims he only passed along reporter gossip. However, Fitzgerald has never found direct evidence that Libby believed Plame’s status was classified prior to the publication of the Novak column. Under the relevant statutes, this ought to leave Libby in the clear, and as a high-priced Washington lawyer with access to counsel, Libby ought to have known that.
Or did something else jog Libby’s memory? Dick Cheney had read Joe Wilson’s July 6 op-ed and marked it up with questions, including one about whether Joe Wilson’s wife had sent him on a junket. Did Libby lie to keep Dick Cheney out of the story? His critics think so, but Fitzgerald probably can not allege that in court – after all, Fitzgerald was welcome to call Cheney as a witness and ask him about the op-ed, and declined to do so (Fitzgerald has already interviewed Cheney as part of the investigation – whatever his answers were, Fitzgerald did not want a jury to hear them).
It’s a puzzle – faced with the alternative of quitting his government post, earning ten times as much in the private sector, and taking the Fifth when investigators came calling, Libby chose to commit perjury and obstruction, thereby risking his current job, his law license, and his freedom, to cover himself from charges that could not be brought in any case.
Or, he lied because grand jury secrecy is so unreliable that Dick Cheney’s name would get dragged into this even though no charges were likely to be filed (and as if Cheney’s name would not be dragged into it otherwise).
The defense does not need to prove beyond a reasonable doubt that Libby is innocent – he may very well be lying through his teeth for the slimmest of reasons. It is the job of the prosecution to prove that he is lying beyond a reasonable doubt. We eagerly await the jury’s decision.
NOTE: Incredibly, I am well aware that I have left stuff out (I was hoping for something much shorter...). Feel free to offer some constructive suggestions as to what should be added or cut.
And sorry for the no-links - my current motto is, post while the ISP demons rest.