Libby's Motive, Cheney's Exposure, and Why Ari Fleischer Might be Walter Pincus' Source

At this point, it seems relatively clear that Libby lied to federal investigators and lied pretty spectacularly. The man is, of course, innocent until proven guilty, but Fitzgerald appears to have an incredibly strong case. So the obvious question we should all be asking is why. Why would such an intelligent person, an experienced attorney, risk committing multiple felonies? It seems to me there are only three possibilities:

1) There was no underlying crime in the outing of Valerie Plame, but Libby was worried about the potential political fallout to the administration if he told the truth. In other words, he was covering up for politically embarrassing facts, not legally problematic ones.

2) Libby lied to cover up his own involvement in the outing of Valerie Plame, fearing that if he told the truth, he would face significant legal exposure.

3) Libby lied to cover up the involvement of others in the outing of Valerie Plame, fearing that if he told the truth, others in the administration (perhaps the Vice President) would face significant legal exposure.

Over the last two days, countless Republican talking heads and conservative commentators have simply asserted, without any explanation or analysis, that motive #1 is the correct one. Yet, of the three possibilities, motive #1 seems to be the least supported by the publicly available facts. Morever, it's fairly clear from the indictment and press conference, that Patrick Fitzgerald himself doesn't buy motive #1.

Let's not forget that Scooter Libby is, by all accounts, a very intelligent and meticulous person. He's a graduate of Columbia Law School and an experienced attorney, formerly a partner at a large law firm. This scandal first captured headlines in July of 2003, just weeks after Libby had discussed Plame with several reporters. Libby then had three months to think about his own role in this affair and to decide what he was going to tell investigators if they ever came knocking on his door (which they eventually did in October 2003). Libby surely used that time to familiarize himself (if he wasn't familiar already) with the Intelligence Identities Protection Act and the Espionage Act, and to determine, as best he could, whether he or anyone else in the White House had violated either of those two laws. Libby was also no doubt aware that lying to federal investigators is, in and of itself, a serious felony.

The prevailing Republican talking points would have us believe that after doing this risk calculus, Libby concluded that no underlying crime had been committed, but nevertheless decided to commit multiple felonies by lying and misleading federal investigators. Is that possible? Certainly. Stranger things have happened. Is that likely? I don't think it is.

First, there is plenty of circumstantial evidence that Libby knew (or at least suspected) that Plame's affiliation with the CIA was sensitive information. To take just one example, the indictment reports that on June 14, 2003, Libby spoke to his principal deputy (presumably John Hannah) about Plame. Hannah asked Libby if this information could be shared with the media. Libby "responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line." Another example: in his July 8, 2003 conversation with Judith Miller, Libby went out of his way to ask Miller to attribute the information about Wilson's wife to a "former Hill staffer" as opposed to an administration official.

This circumstantial evidence supports the inference that Libby had reason to worry that his own conduct might have violated either the IIPA or the Espionage Act, which would clearly provide a motive for him to lie to investigators. Still, if Libby thought that only his own ass was on the line, it's hard to see why he would have tried to cover up one possible felony by committing a handful of certain felonies.

That brings us to possible motive #3: protecting others. As a number of others have noted, Libby's indictment seems to include a number of somewhat gratuitous references to the Vice President. The one which has garnered the most attention is this one:

On or about July 12, 2003, LIBBY flew with the
Vice President and others to and from Norfolk,
Virginia, on Air Force Two. On his return trip,
LIBBY discussed with other officials aboard the
plane what Libby should say in response to
certain pending media inquiries, including
questions from Time reporter Matthew Cooper.

Why is this paragraph included the indictment? It seems entirely irrelevant to the charges for which Libby currently stands accused. But consider what Barton Gellman reported in today's Washington Post:

Apart from Libby, only press aide Catherine
Martin is known to have accompanied Cheney
on that flight.

Shortly after this flight, Libby discussed Wilson's wife with both Matthew Cooper and Judith Miller. So it appears that Fitzgerald is asserting in the indictment, albeit somewhat cryptically, that Libby discussed with Cheney how he should respond to pending press inquiries regarding Joseph Wilson's trip to Niger, and that immediately after that conversation, Libby discussed Wilson's wife with at least two reporters.

But why did Fitzgerald include this paragraph? What purpose does it serve? I think it goes to the question of motive. I think that Fitzgerald suspects that Libby's motive for lying was, at least in part, to protect his boss, the Vice President. This paragraph was included in the indictment to make both Libby and the Vice President aware of Fitzgerald's suspicions in this regard. It's was a shot across the bow, so to speak.

Fitzgerald may well suspect that, on that July 12 flight, Cheney instructed Libby to discuss Wilson's wife with reporters. Along these lines, Josh Marshall noticed something very interesting today. Apparently the original version of the Gellman article in today's Post briefly contained a paragraph that has subsequently been removed. Here's the paragraph (along with the paragraph that followed it, for context):

On July 12, the day Cheney and Libby flew
together from Norfolk, the vice president
instructed his aide to alert reporters of an
attack launched that morning on Wilson's
credibility by Fleischer, according to a
well-placed source.

Libby talked to Miller and Cooper. That same
day, another administration official who has
not been identified publicly returned a call
from Walter Pincus of The Post. He "veered
off the precise matter we were discussing" and
told him that Wilson's trip was a "boondoggle"
set up by Plame, Pincus has written in Nieman
Reports.

Is it just me, or do these two paragraphs, read together, seem to imply that Ari Fleischer is Walter Pincus' mysterious source? Doesn't the structure of the sentences suggest that Fleischer is the "administration official who has not been identified publicly?" Perhaps that's why the Post had the first paragraph removed. More importantly, these two paragraphs seem to imply that Cheney himself instructed Libby to follow Fleischer's lead and characterize Wilson's trip as a boondoggle set up by his wife, a CIA operative. If that's true, then Libby's motive for lying and obstructing justice becomes fairly clear, doesn't it? He was protecting his boss.

Cheney has to clarify his role in this affair now. And if he doesn't, I fully agree with Nick Kristof:

If Mr. Cheney can't address the questions about
his conduct, if he can't be forthcoming about the
activities in his office that gave rise to the
investigation, then he should resign. And if he
won't resign, Mr. Bush should demand his
resignation.

Update: After reading that Gellman paragraph again, I think my initial take on it was a little off the mark. I still think that the two paragraphs, when read together, suggest that Ari Fleischer was the source of Walter Pincus' famous boondoggle quote. However, that does not necessarily mean that Fleischer was Pincus' source. The offending paragraph may have been removed because it incorrectly implied that Fleischer was Pincus' source. In other words, the implication may have been unintentional.

Also, the first paragraph says that Cheney "instructed his aide to alert reporters to an attack launched that morning on Wilson's credibility by Fleischer." I assumed that this was a reference to the boondoggle attack discussed in the second paragraph. But as Empty Wheel points out, the attack Cheney was referring to was likely one made by Fleischer in the press gaggle that morning, an attack that had nothing to do with Wilson's wife. Interestingly, the transcript of that particular press gaggle was subpoenaed by Fitzgerald and was, for a time, removed from the White House website (I'm not sure which happened first). For more on the attack launched by Fleischer at that gaggle, read Empty Wheel's entire post at the Next Hurrah, including the updates and comments.