Tangled Webs (40 page)
Authors: James B. Stewart
Tags: #History, #United States, #General, #Law, #Ethics & Professional Responsibility
When Miller finally testified, she described how she’d come to know Libby, mentioning his interest in her book
Germs
. She described their meeting at the St. Regis, observing that Libby seemed “agitated” by Wilson’s op-ed piece, which had just run that Sunday. Libby had given a detailed account of his version of the Wilson saga, and mentioned that Wilson’s wife worked at “the agency.” She had made a note that she worked at WINPAC. Miller thought this was the first time she’d heard anything about Wilson’s wife, although she had a “vague” recollection she might have heard it before this. Libby hadn’t used her name. Miller also described the July 12 phone call, although her memory was hazy. They had again discussed Wilson’s wife in passing, although by then Miller thought she had discussed Wilson’s wife with others as well, though she couldn’t remember whom. She remembered telling Libby that she didn’t think she’d be writing a story about Wilson’s wife and the
Times
didn’t seem interested. Fitzgerald asked if she could pinpoint the date of that conversation, and she said she wasn’t sure, but she’d check her notes, which were still in New York. She said Libby had never suggested Vice President Cheney knew about their conversations and never indicated he thought the information about Wilson’s wife was classified.
Germs
. She described their meeting at the St. Regis, observing that Libby seemed “agitated” by Wilson’s op-ed piece, which had just run that Sunday. Libby had given a detailed account of his version of the Wilson saga, and mentioned that Wilson’s wife worked at “the agency.” She had made a note that she worked at WINPAC. Miller thought this was the first time she’d heard anything about Wilson’s wife, although she had a “vague” recollection she might have heard it before this. Libby hadn’t used her name. Miller also described the July 12 phone call, although her memory was hazy. They had again discussed Wilson’s wife in passing, although by then Miller thought she had discussed Wilson’s wife with others as well, though she couldn’t remember whom. She remembered telling Libby that she didn’t think she’d be writing a story about Wilson’s wife and the
Times
didn’t seem interested. Fitzgerald asked if she could pinpoint the date of that conversation, and she said she wasn’t sure, but she’d check her notes, which were still in New York. She said Libby had never suggested Vice President Cheney knew about their conversations and never indicated he thought the information about Wilson’s wife was classified.
Fitzgerald asked for Miller’s reaction to the Novak story, and she said she was “annoyed” that Novak broke the story. She said she’d proposed a story, but her editor, evidently distracted by the replacement of former executive editor Howell Raines by Keller, hadn’t seemed interested. He also read the letter from Libby, and she conceded that the reference to other reporters’ testimony might be interpreted as an attempt to get her to say they hadn’t discussed Wilson’s wife. As for the cryptic reference to the “aspens,” Miller explained that she had attended a national security meeting in Aspen, then visited Jackson Hole, Wyoming. At a rodeo a man in a cowboy hat and sunglasses had approached her and asked about the conference. Miller didn’t recognize him. “Judy, it’s Scooter Libby,” he’d said. Beyond that, she didn’t know what he was trying to say.
Miller’s testimony was another blow to Libby’s alibi, contradicting his claim that he hadn’t discussed Wilson’s wife with Miller at their July 8 meeting and that he was unaware of Plame’s identity until he learned it from Russert.
Miller returned to New York that evening and went to her office. Her notebooks from June and July were in a shopping bag under her desk; she went through them looking for notes of her July conversation, and found nothing. But then she looked in the June notebook, and there were pages of notes from a June 23 interview with Libby–something she hadn’t mentioned to the grand jury. Among them was the notation “(wife works in bureau)?” The notes reminded her that she and Libby had met on the twenty-third and discussed the Wilson affair, something she’d completely forgotten. She immediately called Bennett, who got the notebooks and turned them over to Fitzgerald.
Miller returned to the grand jury on October 12 to describe the June 23 interview. Seeing the notes had jogged her memory, and she now recalled their discussion in some detail. Libby had been “agitated” and “frustrated” about the Wilson mission and how it was being interpreted. Libby said Wilson’s wife worked in the bureau, which Miller put in parentheses because it seemed an aside. The question mark probably indicated Miller was initially puzzled by the reference; she later realized the bureau meant the CIA. Miller had also written “Valerie Flame,” “V.F.” “Valery” and “Victoria Wilson” in the notebook, but she didn’t think Libby had mentioned the name, and the notations may have come from other sources she couldn’t remember.
“When you heard that,” Fitzgerald asked, referring to Libby’s mention of Wilson’s wife working at the CIA, “was that the first time you associated Mr. Wilson’s wife with the bureau at the CIA?”
“I don’t remember if that was absolutely the first time, but it was among the first times I had ever heard that. I don’t–I can’t recall for sure.”
But there were no notes from anyone else mentioning Wilson’s wife prior to the Libby interview. “Is it fair to say that as you sit here today, you have no specific recollection of talking to any specific government official other than Mr. Libby about Wilson’s wife working at the CIA during that time frame?”
“That is correct.”
Miller officially returned to work at the
Times
on October 3, 2005. She made a speech hailing her incarceration and release from prison as a victory for press freedom, a claim greeted by polite but skeptical applause from her colleagues. As editor-at-large Jack Shafer wrote in
Slate
, “The real winner for anybody with eyes to read a newspaper is Patrick Fitzgerald.”
Times
on October 3, 2005. She made a speech hailing her incarceration and release from prison as a victory for press freedom, a claim greeted by polite but skeptical applause from her colleagues. As editor-at-large Jack Shafer wrote in
Slate
, “The real winner for anybody with eyes to read a newspaper is Patrick Fitzgerald.”
SEVEN
“A Cloud over the White House”
O
ver the next six weeks, Fitzgerald met frequently with the FBI agents and lawyers working on the case, reviewing the evidence and taking frequent polls on who, if anyone, should be charged with a crime. By now the targets had been narrowed to Armitage, Rove, and Libby. The FBI agents were unanimous that Armitage should be charged with violating something–if not the Intelligence Identities Protection Act, then for making false statements or mishandling classified information. Armitage knew or should have known that Plame’s identity was classified–he read it in the confidential INR report, plainly marked “secret.” But the lawyers disagreed. Armitage had insisted he never knew Plame was covert. The INR report might have been classified, but not everything contained in a classified report is a secret. Armitage maintained that in all his years of government service the name of a covert agent had never appeared in a written report, classified or otherwise. The statute was strict about knowledge of covert status, and it would be difficult, if not impossible, to prove guilt beyond a reasonable doubt.
ver the next six weeks, Fitzgerald met frequently with the FBI agents and lawyers working on the case, reviewing the evidence and taking frequent polls on who, if anyone, should be charged with a crime. By now the targets had been narrowed to Armitage, Rove, and Libby. The FBI agents were unanimous that Armitage should be charged with violating something–if not the Intelligence Identities Protection Act, then for making false statements or mishandling classified information. Armitage knew or should have known that Plame’s identity was classified–he read it in the confidential INR report, plainly marked “secret.” But the lawyers disagreed. Armitage had insisted he never knew Plame was covert. The INR report might have been classified, but not everything contained in a classified report is a secret. Armitage maintained that in all his years of government service the name of a covert agent had never appeared in a written report, classified or otherwise. The statute was strict about knowledge of covert status, and it would be difficult, if not impossible, to prove guilt beyond a reasonable doubt.
Beyond that, there were significant practical obstacles making any prosecution under the statute difficult. The lawyers would have to prove that Plame was a covert agent. They’d have to delve into her top-secret work for the agency. Defense lawyers would need access to her employment records. All of this was classified information that might not be allowed in court. As one lawyer involved put it, “This is a lawyer’s nightmare. It’s like trying for a seventy-yard field goal with goalposts three feet wide.”
The agents were also unanimous that Rove should be charged with false statements, and Fitzgerald seemed to agree. Rove denied being a source for Novak, saying only that he’d “heard” about Wilson’s wife; he didn’t say anything about speaking to Cooper until an e-mail forced his admission. The president himself flatly contradicted Rove’s testimony about his conversation with the president. The investigators believed that Rove had lied to the president about his conversation with Novak. Fitzgerald gave Rove’s lawyer, Robert Luskin, every indication that he was on the brink of asking the grand jury to indict Rove.
Luskin flew to Chicago and met with Fitzgerald for five hours, breaking only for a quick trip to a nearby Dunkin’ Donuts. According to Luskin, Fitzgerald focused on the discrepancies between Rove’s testimony and the accounts of others, including the president’s version of the phone call in which he asked Rove point-blank if he had had any involvement in the Novak leak and had said Rove denied it. Luskin argued that Rove had never hidden the fact that Wilson’s wife had come up in the discussion from others in the White House, so why would he lie to the president? Perhaps Rove’s memory was better than Bush’s.
But what seemed to have most troubled Fitzgerald was the belated discovery of the Cooper e-mail and Rove’s prior insistence that he didn’t remember any such conversation with the
Time
reporter. How could that be true if in January–months before the e-mail surfaced–Rove had asked his staff to scour their files for any e-mail contacts with Cooper? It was true Rove had made such a request, but Luskin explained it was at
his
behest, not because Rove himself had any memory of such a contact. Moreover, why would Rove volunteer at his first interview with the FBI that he’d discussed Valerie Wilson with Novak but conceal the disclosure to Matt Cooper? It didn’t make any sense, Luskin maintained.
Time
reporter. How could that be true if in January–months before the e-mail surfaced–Rove had asked his staff to scour their files for any e-mail contacts with Cooper? It was true Rove had made such a request, but Luskin explained it was at
his
behest, not because Rove himself had any memory of such a contact. Moreover, why would Rove volunteer at his first interview with the FBI that he’d discussed Valerie Wilson with Novak but conceal the disclosure to Matt Cooper? It didn’t make any sense, Luskin maintained.
More broadly, Luskin argued that the alleged discrepancies in Rove’s testimony didn’t add up to any coherent narrative–in pointed contrast to Libby, whose story conveniently “wrote Cheney out of the narrative,” as Luskin put it.
Fitzgerald and Eckenrode questioned Rove again on October 25. Fitzgerald told him then that he wouldn’t be indicted that week. Still, as Rove later said, “I had become paranoid and didn’t feel safe from the prosecutor’s reach.” Fitzgerald struggled to find proof that Rove had lied. The night before the grand jury term was to expire, and final decisions had to be made, Fitzgerald made a last call to Adam Levine, the former White House communications adviser, who was in Eden Prairie, Minnesota. Fitzgerald had found an e-mail indicating Rove had met with Levine just after his conversation with
Time
reporter Matt Cooper. Did Levine remember their meeting? Had Rove mentioned Cooper’s call? Was it important to Rove?
Time
reporter Matt Cooper. Did Levine remember their meeting? Had Rove mentioned Cooper’s call? Was it important to Rove?
If Rove had mentioned it, Levine didn’t remember it. Levine was getting ready to leave the White House at the time, and all he remembered was that he and Rove had talked about his future.
With Libby, the evidence of false statements and perjury seemed overwhelming. Focusing only on those charges, and not the protected identities act, rendered Plame’s actual status irrelevant, sidestepping all the national security issues. Plame wouldn’t even have to be a witness. Still, the discussions about whether to seek charges from the grand jury were extensive, focusing primarily on the fact that Libby had not leaked to Novak. The investigators knew they would be criticized for failing to indict anyone for the crime that had launched the investigation. And, like the Martha Stewart prosecutors, they’d be faulted for pursuing crimes like perjury and false statements that are supposedly rarely prosecuted. But Fitzgerald had his assistant, Randall Samborn, research the issue for the Northern District of Illinois since 2001, when Fitzgerald had become U.S. Attorney. Samborn found 31 cases of perjury and 153 of false statements. Not only was lying being prosecuted, it was nearly an epidemic.
The evidence from Ari Fleischer sealed Libby’s fate. No one believed Libby could have remembered talking about the Miami Dolphins but not Wilson’s wife. The lies were brazen; Libby had been reckless. The vote was unanimous–among agents and prosecutors alike–to seek an indictment.
In the end, Fitzgerald did what he thought was right, not what was politically expedient. He knew he’d be criticized no matter what he did. As he told his staff, “It’s damned if we do, damned if we don’t.” It would have been easy to do nothing. But when the president said he wanted to get to the bottom of the matter, Fitzgerald took him at his word. Before any public announcement, he drafted a cover letter to President Bush. Attached were two memos: one summarizing the evidence against Rove, the other against Armitage. (Based on what is now known publicly, presumably these summaries focused on the admissions by both officials that they had leaked Valerie Wilson’s identity, and, in Rove’s case, his apparent failure to reveal his involvement when asked by the president.) Fitzgerald invoked a rarely used exception to grand jury secrecy, which permits disclosure in cases involving national security. To Fitzgerald, the fact that Bush still employed two people who had apparently divulged the identity of a covert CIA agent was an issue of national security. The message was implicit: Rove and Armitage wouldn’t be indicted, but the president could still do the right thing and ask for their resignations.
Fitzgerald hand-delivered the letter to Bush’s personal lawyer, Jim Sharp. “How’s your client?” Fitzgerald asked. Sharp never used Bush’s name, referring to him only as “my client.” “My client could use a new staff,” Sharp replied. He said he’d get the letter to Bush.
O
n October 28, 2005, just over two years after the investigation had begun, Fitzgerald stepped to the podium in a Justice Department auditorium, the great seal of justice prominent behind him. He announced that Libby had been indicted by the grand jury for obstruction, perjury, and false statements. Though there were five counts, they were based on two essential falsehoods, repeated by Libby numerous times both to FBI agents and to the grand jury: that he learned Plame’s identity from Tim Russert (and had forgotten hearing about her from the vice president); and that he hadn’t leaked or confirmed her identity to reporters, saying only that he’d heard such information from other reporters and didn’t know if it was true.
n October 28, 2005, just over two years after the investigation had begun, Fitzgerald stepped to the podium in a Justice Department auditorium, the great seal of justice prominent behind him. He announced that Libby had been indicted by the grand jury for obstruction, perjury, and false statements. Though there were five counts, they were based on two essential falsehoods, repeated by Libby numerous times both to FBI agents and to the grand jury: that he learned Plame’s identity from Tim Russert (and had forgotten hearing about her from the vice president); and that he hadn’t leaked or confirmed her identity to reporters, saying only that he’d heard such information from other reporters and didn’t know if it was true.
A reporter asked:
“Mr. Fitzgerald, the Republicans previewed some talking points in anticipation of your indictment and they said that if you didn’t indict on the underlying crimes and you indicted on things exactly like you did indict–false statements, perjury, obstruction–these were, quote/unquote, ‘technicalities’ and that it really was overreaching and excessive.
“And since, when and if they make those claims, now that you have indicted, you won’t respond, I want to give you an opportunity now to respond to that allegation which they may make. It seems like that’s the road they’re going down. . . .”
Fitzgerald replied:
“I’ll be blunt. That talking point won’t fly. If you’re doing a national security investigation, if you’re trying to find out who compromised the identity of a CIA officer and you go before a grand jury and if the charges are proven–because remember there’s a presumption of innocence–but if it is proven that the chief of staff to the vice president went before a federal grand jury and lied under oath repeatedly and fabricated a story about how he learned this information, how he passed it on, and we prove obstruction of justice, perjury, and false statements to the FBI, that is a very, very serious matter.
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