http://www.tompaine.com/articles/20051103/...d_libby_lie.php


Why Would Libby Lie?
Dennis Kelleher
November 03, 2005


Dennis Kelleher is a legislative director for a Democratic senator. He was the deputy staff director and general counsel for the senior Democrat on the Senate Committee on Help, Education, Labor and Pensions and he was a litigation partner at the law firm of Skadden, Arps, Slate, Meagher & Flom. The views expressed are his own.

A key element in trying to prove a crime is showing why someone might have done something illegal. Lawyers call it proving motive. Evidence of motive is often the critical reason a prosecutor concludes that someone has committed a crime and a jury convicts someone of a crime.

Thus far, motive is the mystery in the CIA agent leak case that has rocked the White House. Why would so many of the most senior and seasoned White House officials, including apparently the vice president, engage in what appears to be a coordinated and comprehensive smear campaign that included the outing of an undercover CIA official? And why would anyone risk committing federal criminal felonies by lying about it?

I. Lewis Libby, as assistant to the president, chief of staff to Vice President Cheney and assistant to the vice president for National Security Affairs, was indisputably one of the most powerful officials in the administration. By all accounts, he is a savvy, experienced and careful lawyer who sweated the details and was prudently risk-averse and wily in the ways of dealing with the media.

He has now resigned in disgrace and is charged with the crimes of obstructing justice by lying to the FBI and the grand jury. Prosecutor Fitzgerald has charged him with these crimes for allegedly falsely testifying that he learned of a CIA agent’s identity from reporters rather than from the vice president and other senior administration officials.

If Libby lied, why would he? The prosecutor unknowingly answered that question at his press conference. He said, if the reporters testified when they were issued subpoenas in August 2004, “we would have been here [holding a press conference] in October 2004 instead of October 2005.”

October 2004 was a mere month before the presidential election on Nov. 2, 2004. Amazingly, in all the timelines of the leak investigations, there is no mention of the presidential election in November 2004 or that the basis for the war in Iraq was a key issue in that election.

Whether the charges in the indictment are true and whether Libby or anyone else is ever convicted, such a press conference on the eve of the presidential election in October 2004 would have dramatically affected that election. The reason that press conference was not held in October of 2004 is because the prosecutor had to waste a year fighting all the way to the Supreme Court to get information from reporters.

An October 2004 press conference summarizing the information in the indictment would have been explosive. If the prosecutor was in a position to know and disclose the information contained in the indictment in October 2004, it would have directly contradicted the White House’s categorical denial that Libby and Rove “were not involved” in the disclosure of the agent’s identity.

At that point, on the eve of the November 2004 election, the key question would have been, what did President Bush know and when did he know it. The answers to those questions would not have mattered: If he knew, he was in the middle of blowing the cover of a CIA agent; if he didn’t know that his vice president and many of the most senior White House officials were involved in disclosing a CIA agent’s identity to reporters, it would have confirmed many people’s worst fears that he was dangerously detached.

Moreover, few would have believed that Libby, an extremely intelligent, careful lawyer with decades of experience, would have on his own and without the knowledge or approval of at least the vice president, if not the president, disclosed classified information and blown the cover of a CIA agent. Thus, the other key questions would have been: Who else knew, when did they know and how did they participate in blowing the CIA agent’s cover?

So, if Libby lied, he likely did so to conceal the involvement of Cheney and others, to prevent a pre-election scandal and to protect the Bush/Cheney re-election.

How did Libby’s alleged lies do this? The prosecutor unknowingly answered this question at his press conference as well. Libby isn’t alleged to have told a little lie here or there. He is alleged to have fabricated elaborate stories including false dialogue, phony feelings and reactions with several reporters. As the prosecutor said, “it was a compelling story that would lead the FBI to go away.”

Importantly, the FBI didn’t just “go away” from Libby. They went “away” from Cheney and others in the White House involved in getting the information on Wilson and his CIA agent wife and toward reporters. If Libby told the truth as alleged by the prosecutor, the FBI would have gone directly to the vice president’s office and the explosive information detailed above would have been uncovered.

Libby’s alleged “compelling” lies likely also prevented the prosecutor from determining who, if anyone, broke the law by knowingly and intentionally disclosing the CIA agent’s identity. In short, Libby’s lies pointed the prosecutor “away” from the possible or probable criminals, “away” from the truth and toward reporters. This guaranteed months if not years of delays from battling over the First Amendment. That’s why it's called obstruction of justice.

The prosecutor used a convoluted baseball metaphor to try to explain this. I propose a better one: You and three friends are standing on a street corner talking about doing something wrong. The discussion ends inconclusively and your friends leave, but you, with nothing to do, hang out at the corner alone. An hour later, your three friends come running by, looking scared and they duck into an alley behind you.

Two minutes later, cops come running over and ask if you saw three men running by. Without hesitating, you tell them that you did, that they almost knocked you over, that you twisted your knee, and that they ran down the street across the park from where you were standing. The cops go dashing off—in the wrong direction. Your friends sneak safely out of the alley and go to their homes and to work. A year later, the cops learn that you lied and try to head back in the right direction.

That’s obstruction of justice and that’s what Libby is accused of doing. That’s what it means to tell “a compelling story” that leads “the FBI to go away.”