â€œMadness! Madness! Outrageous!â€ special Prosecutor Patrick Fitzgerald shouted in a high pitched voice as he began his closing argument in the Scooter Libby perjury trial. It was a feeble effort at sarcasm, a jab at the defense, from a lawyer whose sense of humor is as underdeveloped as his sense of justice or fair play. But prosecutors, especially special prosecutors, need neither. Itâ€™s not in their job description.
In those few words, however, Fitzgerald unintentionallyâ€"but accuratelyâ€"characterized what he has been about these past three years. Like a drunk who stumbles and falls in the darkness, he picked himself up, dusted himself off, and walked off as if nothing had happened. Try and tell Judith Miller that nothing happened. Fitzgerald sent her to jail and she was subsequently forced to resign from The New York Times because she refused to burn a source.
Fitzgerald went after Miller even though, unlike Robert Novak, she had never used the name of a CIA WMD analyst, Valerie Plame, in a story about her ex-ambassador husband Joe Wilsonâ€™s CIA-sponsored trip to Niger to search for Iraqi WMDs. Yet it was Novakâ€™s story which led to Fitzgeraldâ€™s appointment. Worse, Fitzgerald did this to Miller even though he must have known to a moral certainty that (A) Richard Armitage, Colin Powellâ€™s deputy at the State Department, was Novakâ€™s source; and (B) Plame was not a covert agent within the meaning of the espionage law in question, nor did anyone have reason to think she was.
Wait: It gets better. The mainstream media didn't cover the story in any detail, nor did it call Fitzgerald to task. But the fact remains that Judith Miller was tried, convicted and sentenced to prison based exclusively upon written evidence from witnesses whose identities and testimony were kept secret from her and her lawyers. They were given no opportunity to question, rebut, defend her against the secret evidence the courts relied upon exclusively in convicting her. Indeed, a full eight pages of the D.C. Court of Appeals decision discussing and analyzing this secret evidence was redacted from the published opinion. Judith Miller is unique, the first American ever to be sent to jail based on facts she never saw and a federal appellate opinion she was not permitted to read. That's not troubling?
The central element in the case against Libbyâ€"who at least got to see all the evidence against himâ€"was not that he lied about leaking Plameâ€™s name. After all, he was not the first nor the only Bush administration official to do so. Richard Armitage (who was the first), Karl Rove and former White House Press Secretary Ari Fleischer did so as well. Besides, Libby admitted leaking her name to several journalists, including Miller, Matt Cooper of Time and Glenn Kessler of The Washington Post.
No, the key count in the perjury case against Libby concerns from whom he first learned that Plame worked for the CIA. In fact, he first learned it from Vice President Cheney, as he later testified. But initially, he testified he learned it from NBCâ€™s Tim Russert. So whatâ€™s the big deal? Thatâ€™s perjury, Fitzgerald said, because Libby was afraid he committed a crime and attempted to cover up where he first learned her identity.
A crime, of course, which Fitzgerald knew had never been committed. Russert is critical to Fitzgeraldâ€™s case because specific intent is one of the elements of perjury the prosecutor has to prove. Fitzgerald must showâ€"beyond a reasonable doubtâ€"that Libby lied about Russert knowing it was a lie and not as a result of confusion, mistake, or a faulty memory. So even if no crime had been committed, Libbyâ€™s mistaken belief that he had commited one would provide a motive to lie.
Russert at trial said it was â€œimpossibleâ€ that he and Libby discussed Plame. Really? When the FBI first interviewed Russert, he told them he couldnâ€™t completely rule out the possibility he discussed Plame with Libby because he didnâ€™t take notes and he talks to so many people. Timeâ€™s Matt Cooper did take notes which indicate Libby might have told him that he was not even sure if Joe Wilsonâ€™s wife was with the CIA.
Fitzgerald has an overarching theory that the White House was systematically trying to punish Joe Wilson by outing his wife. Yet four journalists with whom Libby talked during the relevant time periodâ€"Bob Woodward, Walter Pincus and Glenn Kessler of the Post and Evan Thomas of Newsweekâ€"all said Libby never mentioned Plame to them.
Bob Woodward, like Novak, learned of Plameâ€™s identity from Armitage. More importantly, he testified that he might have mentioned Plame to Libby in their conversation later that month. Did Libby confuse Woodward with Russert? Does he have a bad memory? Glenn Kessler thinks so. Libby testified in great detail to the grand jury that he spoke with Kessler on a cell phone while Kessler was with his kids at the zoo and had a â€œlucid conversationâ€ where he mentioned Plame. Kessler said it never happened.
Does Ari Fleisher have a bad memory? Walter Pincus thinks so. Fleisher testified it never happened but Pincus testified at trial that Fleisher called him and changed subjects in the middle of their conversation to reveal Plameâ€™s identity, calling Wilsonâ€™s trip to Niger at the CIAâ€™s behest a â€œboondoggleâ€. Boondoggle? A Cheney/Rove talking point perhaps? Libby testified he used the same word in the conversation he did or did not have with Glenn Kessler.
No trial lawyer will be surprised to learn any of this. Human memories are fragile and fallible, growing more so as time elapses, especially if there are no notes to refresh memories. Memories are what witnesses convince themselves must have happened. Russert kept no notes of his conversation with Libby, yet by the time of trial had decided that it was â€œimpossibleâ€ they discussed Plame. Russertâ€™s earlier admission to the FBI that he couldnâ€™t rule out the possibility they did discuss Plame is closer to the truth. As an experienced prosecutor, Fitzgerald knew that too.
Is this prosecution based on fragile memory "madness?" Is it "outrageous?"
It certainly is.
Michael McMenamin, a contributing editor of Reason, is a media defense lawyer in Cleveland. His book Becoming Winston Churchill, The Untold Story of Young Winston and His American Mentor will be published this spring in the US and UK by of Harcourt.