In the most important sense, this is a case without a crime. Yes, Mr. Libby is charged with perjury and obstruction of justice, which are serious offenses. But this seasoned, disciplined lawyer is accused of lying to cover up a leak he didn't commit, and which has long been proven not to have been a crime at all. One early bit of drama will be to see what motive prosecutor Patrick Fitzgerald comes up with to explain why Mr. Libby would lie to the FBI and a grand jury when he had essentially nothing to hide.
All the more so because one of the mysteries of this case is Mr. Fitzgerald himself. He made his reputation as a tough prosecutor in Chicago who was nonetheless scrupulous about the law. But in this case, he knew from the very first day of his appointment in December 2003 that neither Mr. Libby nor the Vice President's office had orchestrated the leak of Valerie Plame's name to columnist Robert Novak.
He also knew -- based on earlier FBI interviews -- that the real leaker was Richard Armitage, the No. 2 man at the State Department and if anything a policy rival of Mr. Libby's inside the Bush Administration. The original theory of the case -- that the leak was a political vendetta against Ms. Plame's husband, Joe Wilson -- was thus demonstrably false from the start of his probe. The "crime," in short, had been solved.
Yet Mr. Fitzgerald has persisted for three long years, and only six weeks into his investigation sought and received an expansion of his authority in order to go after a senior administration official -- Mr. Libby -- who had had nothing to do with the leak Mr. Fitzgerald was investigating. And he pursued the case even to the extent of creating a Constitutional showdown over reporters and their sources. Why?
As it happens, Messrs. Fitzgerald and Libby had crossed legal paths before. Before he joined the Bush Administration, Mr. Libby had, for a number of years in the 1980s and 1990s, been a lawyer for Marc Rich. Mr. Rich is the oil trader and financier who fled to Switzerland in 1983, just ahead of his indictment for tax-evasion by the U.S. Attorney for the Southern District of New York. Bill Clinton pardoned Mr. Rich in 2001, and so the feds never did get their man. The pardon so infuriated Justice lawyers who had worked on the case that the Southern District promptly launched an investigation into whether the pardon had been "proper." One former prosecutor we spoke to described the Rich case as "the single most rancorous case in the history of the Southern District."
Two of the prosecutors who worked on the Rich case over the years were none other than Mr. Fitzgerald and James Comey, who while Deputy Attorney General appointed Mr. Fitzgerald to investigate the Plame leak. Mr. Fitzgerald worked in the Southern District for five years starting in 1988, at the same time that Mr. Libby was developing a legal theory of Mr. Rich's innocence in a bid to get the charges dropped. The prosecutors never did accept the argument, but Leonard Garment, who brought Mr. Libby onto the case in 1985, says that he believes Mr. Libby's legal work helped set the stage for Mr. Rich's eventual pardon.
This was all long ago, it's true. But Mr. Libby and Mr. Comey tangled more recently as well. In 2004, as Mr. Fitzgerald was gearing up his investigation, Mr. Libby was the Administration's point man in trying to get Justice to sign off on the NSA wiretapping program. In early 2004, Mr. Comey was acting Attorney General while John Ashcroft recovered from gall bladder surgery, and Mr. Comey reportedly refused to give the NSA program the greenlight, prompting the White House to seek out Mr. Ashcroft in the hospital in a bid to circumvent Mr. Comey.
Motive is a difficult thing to gauge. We don't know whether this long personal history played any role either in Mr. Fitzgerald's single-minded pursuit of Mr. Libby, or in Mr. Comey's decision to grant the prosecutor plenary power even though the central mystery of the case had already been resolved. But connecting the dots linking the three men at the heart of this case seems worth doing given the puzzling nature of this prosecution.
As for the trial itself, Mr. Fitzgerald will have to prove not only that Mr. Libby knowingly made false statements but that they served some larger purpose of obstructing justice. The evidence so far is thin. At a mega-press conference announcing his indictment, the prosecutor spoke piously about the need to indict officials who throw "sand . . . in the eyes" of the "umpire." But we know Mr. Libby had nothing to cover up, and his plausible defense will be in part that his recollections simply differed from those of the journalists he spoke with about Mr. and Mrs. Wilson.
At the same press event, Mr. Fitzgerald also made comments suggesting he bought into Joe Wilson's conspiratorial theory of the case -- remarks that now look both disingenuous and prejudicial to Mr. Libby. And this week, trial judge Reggie Walton seemed to acknowledge the extensive negative pretrial publicity about Mr. Libby by granting his lawyers their request for considerable leeway in questioning jurors during voir dire. Mr. Fitzgerald's main advantage may be a Washington, D.C., jury pool inclined to dislike anyone associated with the Bush Administration.
This case is really about a political fight over the Iraq War. In talking to reporters, Mr. Libby was doing his job and attempting to defend Administration policy against political attacks. He had no evident reason to lie to the grand jury. Once Mr. Armitage had fessed up as the leaker in October 2003, a wiser prosecutor than Mr. Fitzgerald would have realized he had entered the realm of politics and gone home.-wsj, 1. 27.07