'Scooter' Libby in Court: The Trial That Did Not Have to Happen

Former Chief of Staff for VP Cheney Goes on Trial Tuesday for Lying to a Grand Jury, an Ordeal That Libby Could of Avoided

ANALYSIS By ROBERT A. MINTZ

Jan. 15, 2007—

When Vice President Dick Cheney's former chief of staff, I. Lewis "Scooter" Libby, was indicted more than a year ago, the public was still largely supportive of the war in Iraq and Libby was still believed by many to be the source of the leak that outed former CIA operative Valerie Plame.

Now, as opening arguments are set to begin in the Libby trial, the climate has changed both inside and outside the courtroom. On the one hand, we now know that the real source of the leak to columnist Robert Novak was not Libby at all, but former Deputy Secretary of State Richard Armitage.

On the other, public sentiment has turned dramatically against the Iraq War, and those who sympathized with Plame and her husband, former U.S. Ambassador Joseph Wilson, likely feel somewhat vindicated. While criminal prosecutions are never supposed to be about politics, this one was infused with political considerations from the start.

First, let's remember what this case is not about. Special Prosecutor Patrick Fitzgerald did not allege that Libby broke the law by leaking Plame's name in retaliation for her husband's public criticism of the way the administration used prewar intelligence to justify the war in Iraq.

He did not charge that Libby participated in a conspiracy to disclose classified information in an effort to discredit Wilson. And he did not charge that Libby knew that Plame was in covert status when he disclosed her identity to three reporters.

In short, the indictment makes no mention, and Fitzgerald publicly acknowledged reaching no conclusions, about any of the central issues that formed the focus of his two-year investigation.

Robert A. Mintz, a former federal prosecutor, was an ABC News legal analyst during the Martha Stewart trial. He heads the Securities Litigation and White Collar Criminal Defense practice at McCarter and English, LLP.

In fact, all five of the counts lodged against Libby essentially repeat the same simple charge: When asked about his role in the leak by FBI agents and by a grand jury, Libby lied. Without minimizing the seriousness of such crimes, we have to conclude that despite a long and exceedingly thorough investigation, there seems to have been insufficient evidence to charge Libby with any other offense.

Moreover, Fitzgerald made clear that there were legal obstacles to bringing charges under statutes that might make disclosing Plame's identity a crime. So in the end, Libby was charged with lying to federal investigators and to a federal grand jury in order to cover up conduct which itself was not a crime, or at the very least, would not have resulted in criminal charges against him.

Clearly, a political calculus colored Libby's response to the investigation. Indeed, anyone other than a high-ranking government official in Libby's situation would certainly have been advised to invoke his Fifth Amendment right to silence.

This constitutional right, which protects citizens from being compelled to provide statements that could be used to build a criminal case against them, is especially critical in avoiding charges for perjury and obstruction of justice. Had Libby "taken the Fifth," he could never have been charged with the crimes he now faces.

In theory, even that invocation itself, when made to a grand jury, would remain secret. Indeed, Fitzgerald was exemplary in preventing leaks. But given the intensity of public focus on the proceedings, Libby was forced to choose between his potential loss of liberty and his political loyalties. The political fallout stemming from his failure to cooperate in a federal criminal investigation would have been far more devastating to the administration than the indictment itself.

Still, but for the political considerations, there may have been another way out. Assuming the allegations are true, Libby could have walked away from this by simply admitting to the underlying conduct of which he was accused.

Robert A. Mintz, a former federal prosecutor, was an ABC News legal analyst during the Martha Stewart trial. He heads the Securities Litigation and White Collar Criminal Defense practice at McCarter and English, LLP.

What if Libby had admitted leaking Plame's identity as a CIA operative? Fitzgerald never claimed, either in the indictment or in his public statements, that Libby had known of her covert status, a condition that would be a prerequisite to bringing charges under the Intelligence Identities Protection Act of 1982.

Similarly, even though the indictment did describe Libby as having provided classified information concerning the identity of a CIA officer to people not eligible to receive it, Fitzgerald said he was reluctant to bring such a charge, since it was not clear that Libby appreciated the classified nature of the information or that he acted recklessly in sharing it with others. But that path, too, was politically foreclosed. To acknowledge that he intentionally "outed" Wilson as a CIA operative would have set off a firestorm of criticism, even if his conduct was ultimately judged not to have been criminal.

Once the trial begins, the government will have to prove that, contrary to his statements to the FBI and his testimony before the grand jury, Libby knew of Plame's identity long before he claimed and from different sources than he stated. In response, Libby's lawyers have already indicated that they intend to call Vice President Cheney as a defense witness. Cheney's office has stated that he will not invoke executive privilege and will testify, making him the first sitting vice president to testify in a criminal case. This presents new problems for the prosecution. How will Fitzgerald cross-examine the vice president, and how far will he delve into Cheney's own role in seeking to discredit Wilson in defense of the administration's Iraq policies?

The conventional wisdom is that criminal trials are not supposed to be about politics. But there's nothing conventional about this case. In the end, whether it's Libby's path to exoneration or the prosecution's road to conviction, both are littered with political minefields.

Robert A. Mintz, a former federal prosecutor, was an ABC News legal analyst during the Martha Stewart trial. He heads the Securities Litigation and White Collar Criminal Defense practice at McCarter and English, LLP.