The Libby Verdict: What's at Stake?

Feb. 20, 2007 — -- With the trial of Vice President Dick Cheney's former chief of staff, I. Lewis "Scooter" Libby, set to go to the jury this week, the stakes are enormously high for both the defense and the prosecution.

For Libby, the risk is obvious: his freedom is on the line. A conviction would almost assuredly send him to jail for at least some period of time and cast a dark cloud over a distinguished career in public service.

But the prosecution has a lot to lose as well. Special Prosecutor Patrick Fitzgerald has come under fire for running roughshod over First Amendment values by forcing journalists to divulge confidential sources during the investigation, but never charging anyone with the underlying crime of leaking the identity of former CIA operative Valerie Plame.

An acquittal would be a complete repudiation of Fitzgerald's lengthy investigation and call into question the wisdom of bringing these charges in the first place.

The Bush administration is also on trial in a sense. If Libby is convicted, it will likely be as much an indictment of the White House's handling of the Plame affair as of Libby himself.

While the judge will instruct jurors to deliberate solely on the question of whether Libby knowingly misled investigators when he testified before the grand jury, jurors will likely speculate whether there may have been something illegal in the way the White House responded to the criticism of Plame's husband, former ambassador Joseph Wilson, as the administration made its case for war in Iraq.

If He Lied, Does That Suggest Cheney's Guilt?

Although the government is not required to prove motive, motive goes to the question of intent.

In other words, in trying to determine whether Libby intentionally lied, rather than innocently misremembered, jurors are entitled to consider whether he had a reason to tell a lie.

If Libby believed he was involved in an illegal conspiracy, that makes it more likely that his misstatement was intentional.

In that sense, a conviction not only sends a message to Libby, but also to Cheney for his role in attempting to discredit Wilson.

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

An acquittal would likewise send a message to Fitzgerald. A hard-nosed prosecutor with a reputation for doggedly pursuing a case, this is one instance in which his laserlike focus may just have blinded him in his pursuit of justice.

After all, Fitzgerald was responsible for investigating whether anyone had broken the law by intentionally leaking the identity of a covert CIA agent when columnist Robert Novak revealed Wilson's connection to Plame and her position at the CIA.

Plame's role in sending her husband on a mission to Niger, and Wilson's subsequent highly publicized criticism of the Bush administration's rationale for going to war, provided a compelling motive for someone seeking to retaliate against Wilson.

But there were serious problems with this investigation from the start.

First of all, Fitzgerald apparently learned early on that the leaker was former Deputy Secretary of State Richard Armitage. But Armitage was never charged with a crime, presumably because Fitzgerald could never prove that Armitage was aware of Plame's covert status, which is a necessary element of the crime.

Beyond that, it's now clear that even if Libby revealed Plame's CIA connection, reporters learned of this same fact from a number of other sources: Armitage being the obvious one, but also former White House press secretary Ari Fleischer and White House adviser Karl Rove.

So what we have is Libby being charged with lying about conduct that itself did not amount to a crime and was clearly repeated by at least three other persons.

So why was he charged? For Fitzgerald, it was all about the lie. In other words, it wasn't what Libby did that got him in trouble, it was not coming clean with it.

If Libby is acquitted, it means either that jurors didn't believe that Libby intended to lie, or -- more troubling for Fitzgerald -- that they just didn't believe that Libby should be the only one going to jail in an investigation that came up dry on the only issue that really mattered.

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

Soon it will be up to the jury to decide Libby's fate. How jurors frame the issues may well determine the outcome. In the end, this case may be decided not so much by who was charged and why, but by who wasn't charged and why not.

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