Libby's Dilemma: Perjury or Obstruction?
Murray Waas is at it again. His latest article in the National Journal helps us better understand the potential significance of Judith Miller's newly discovered notes, and it doesn't look good for Libby. Waas writes:
If Waas is right, Libby is potentially in serious trouble. I find it inconceivable that Libby was not asked directly at some point whether he had spoken with Miller about Wilson on any occasions prior to their two July conversations. If so, then Libby must have have affirmatively denied, under oath, having had such prior conversations. Because the existence of such a conversation would clearly be a material fact, Libby's only defense to a perjury charge would be that he genuinely forgot about the prior conversation, i.e., that he did not intentionally lie. I suppose that's possible, but it's not a defense I'd want to rely on in court.
So what's going on? Because I know people tune in to blogs for the kind of speculation they just can't find in the mainstream media, I plan on giving people what they want. Let me be clear, though, the following is shameless speculation. It is my best attempt (with very little reflection) to provide a plausible story that is consistent with the facts and legal posturing that have been reported in the media so far.
It's possible (probable?) that there is something about the June conversation between Miller and Libby that Libby did not want Fitzgerald to discover, most likely because it would increase his (or his boss's?) exposure to a substantive charge. For this reason, Libby did not grant Miller the sort of personal waiver she required and may even have affirmatively encouraged her not to testify. This would have been a dangerous move, however, because, as Waas points out, it could potentially be construed as obstructive conduct, and, at the very least, could be viewed as a lack of cooperation on Libby's part. But Libby may have figured that it would be worth it if Miller's refusal to testify prevented the investigation from getting anywhere. However, to hedge against the possibility of being accused of non-cooperation (or worse, obstruction), Libby's attorney, Joseph Tate, provided an ambiguous "reaffirmation" of Libby's general waiver in his 2004 conversation with Miller's attorney, Floyd Abrams. Tate may have figured that if Fitzgerald ever accused his client of preventing Miller from testifying, he could claim that he communicated a waiver to Abrams and that his client had no idea that Miller's refusal to testify had anything to do with him.
In August, Fitzgerald wrote to Tate and made it clear that a number of negative inferences would be drawn about his client if Miller was not provided with a personal waiver. This forced Libby's hand and may have put him in a very delicate situation. One the one hand, he would want to stay on Miller's good side because he hoped that she would limit her testimony to the July conversations that Fitzgerald already knew about. As others have pointed out, Libby's letter to Miller may have been a subtle attempt to communicate to her the fact that Fitzgerald only knew about the July conversations. At the same time, however, in order to avoid negative inferences and possible obstruction charges, Libby and Tate needed to explain to Fitzgerald why a waiver had not been granted sooner. The only possible way of doing so would be to claim that a waiver had indeed been provided and that Miller either disregarded it or her attorney misunderstood what had been communicated to him. This assertion, that Miller had either been too stubborn or too clueless to understand that Libby actually wanted her to testify--a claim which was largely accepted by the media, at least at first--could only have angered Miller and her attorneys. After all, under this theory, Miller had just spent 85 days in jail in order to protect Libby only to have Libby's attorney accuse her of being stupid or self-interested. To put it another way, Libby may have been facing a major dilemma. He could either kiss up to Miller and risk obstruction charges, or he could defend himself against such charges at the risk of angering Miller and prompting her to expose his perjury. If this speculation is correct (and that's a BIG if), then Libby chose the latter course. Now Miller, either of her own volition or because pressure is being applied by Fitzgerald has come forward with notes and testimony about a relevant conversation that Libby never mentioned to prosecutors during the course of a two-year long investigation.
If this speculation is anywhere near the mark, Libby is in a lot of trouble.
In two appearances before the federal grand
jury investigating the leak of a covert CIA
operative's name, Lewis (Scooter) Libby, the
chief of staff to Vice President Cheney, did not
disclose a crucial conversation that he had with
New York Times reporter Judith Miller in June
2003 about the operative, Valerie Plame,
according to sources with firsthand knowledge
of his sworn testimony.
Libby also did not disclose the June 23
conversation when he was twice interviewed
by FBI agents working on the Plame leak
investigation, the sources said.
Special prosecutor Patrick Fitzgerald
apparently learned about the June 23
conversation for the first time just days ago,
after attorneys for Miller and The New York
Times informed prosecutors that Miller had
discovered a set of notes on the conversation.
If Waas is right, Libby is potentially in serious trouble. I find it inconceivable that Libby was not asked directly at some point whether he had spoken with Miller about Wilson on any occasions prior to their two July conversations. If so, then Libby must have have affirmatively denied, under oath, having had such prior conversations. Because the existence of such a conversation would clearly be a material fact, Libby's only defense to a perjury charge would be that he genuinely forgot about the prior conversation, i.e., that he did not intentionally lie. I suppose that's possible, but it's not a defense I'd want to rely on in court.
So what's going on? Because I know people tune in to blogs for the kind of speculation they just can't find in the mainstream media, I plan on giving people what they want. Let me be clear, though, the following is shameless speculation. It is my best attempt (with very little reflection) to provide a plausible story that is consistent with the facts and legal posturing that have been reported in the media so far.
It's possible (probable?) that there is something about the June conversation between Miller and Libby that Libby did not want Fitzgerald to discover, most likely because it would increase his (or his boss's?) exposure to a substantive charge. For this reason, Libby did not grant Miller the sort of personal waiver she required and may even have affirmatively encouraged her not to testify. This would have been a dangerous move, however, because, as Waas points out, it could potentially be construed as obstructive conduct, and, at the very least, could be viewed as a lack of cooperation on Libby's part. But Libby may have figured that it would be worth it if Miller's refusal to testify prevented the investigation from getting anywhere. However, to hedge against the possibility of being accused of non-cooperation (or worse, obstruction), Libby's attorney, Joseph Tate, provided an ambiguous "reaffirmation" of Libby's general waiver in his 2004 conversation with Miller's attorney, Floyd Abrams. Tate may have figured that if Fitzgerald ever accused his client of preventing Miller from testifying, he could claim that he communicated a waiver to Abrams and that his client had no idea that Miller's refusal to testify had anything to do with him.
In August, Fitzgerald wrote to Tate and made it clear that a number of negative inferences would be drawn about his client if Miller was not provided with a personal waiver. This forced Libby's hand and may have put him in a very delicate situation. One the one hand, he would want to stay on Miller's good side because he hoped that she would limit her testimony to the July conversations that Fitzgerald already knew about. As others have pointed out, Libby's letter to Miller may have been a subtle attempt to communicate to her the fact that Fitzgerald only knew about the July conversations. At the same time, however, in order to avoid negative inferences and possible obstruction charges, Libby and Tate needed to explain to Fitzgerald why a waiver had not been granted sooner. The only possible way of doing so would be to claim that a waiver had indeed been provided and that Miller either disregarded it or her attorney misunderstood what had been communicated to him. This assertion, that Miller had either been too stubborn or too clueless to understand that Libby actually wanted her to testify--a claim which was largely accepted by the media, at least at first--could only have angered Miller and her attorneys. After all, under this theory, Miller had just spent 85 days in jail in order to protect Libby only to have Libby's attorney accuse her of being stupid or self-interested. To put it another way, Libby may have been facing a major dilemma. He could either kiss up to Miller and risk obstruction charges, or he could defend himself against such charges at the risk of angering Miller and prompting her to expose his perjury. If this speculation is correct (and that's a BIG if), then Libby chose the latter course. Now Miller, either of her own volition or because pressure is being applied by Fitzgerald has come forward with notes and testimony about a relevant conversation that Libby never mentioned to prosecutors during the course of a two-year long investigation.
If this speculation is anywhere near the mark, Libby is in a lot of trouble.
0 Comments:
Post a Comment
Links to this post:
Create a Link
<< Home