What's Criminal Is What Isn't Illegal

Kudos to Jane Hamsher and the crew at Firedoglake for their above the fold front-page story in the New York Times. They've been the go-to source on the Scooter Libby trial, bar none.

I only wish they got a better event to cover. After a thrilling first week which was full of surprises and revelations, the trial went like a flash. The prosecution presented a very systematic case, wherein Patrick Fitzgerald showed how a host of contacts discussed Valerie Plame with Libby well before he said he first heard about her from NBC's Tim Russert. Then he played Libby's testimony from the Grand Jury trial, which not only showed that Libby adamantly denied knowing Plame's identity until the Russert conversation, but showed that Libby and his boss, Vice President Cheney, planned to leak classified information to counter Joe Wilson's criticism of the case for war.

Why isn't that a crime? Politically motivated leaks of intelligence to prove your own points and discredit others? Seeking out opponents and using information to destroy them, without giving anyone a chance to see the full picture?

But of course, that wasn't the only instance where what ought to be a crime was not seen so under the law. Fitzgerald's final witness was Tim Russert, who rebutted Libby's testimony that the two discussed Valerie Plame. But the crime here was that Scooter Libby, the chief of staff to the Vice President, called Russert to complain about Chris Matthews and Hardball, and Russert took the call without using the opportunity to question Libby, AND assumed the entire call was off the record:

If you're a journalist, and a very senior White House official calls you up on the phone, what do you do? Do you try to get the official to address issues of urgent concern so that you can then relate that information to the public?

Not if you're NBC Washington bureau chief Tim Russert.

When then-vice presidential chief of staff Scooter Libby called Russert on July 10, 2003, to complain that his name was being unfairly bandied about by MSNBC host Chris Matthews, Russert apparently asked him nothing.

And get this: According to Russert's testimony yesterday at Libby's trial, when any senior government official calls him, they are presumptively off the record.

That's not reporting, that's enabling.

That's how you treat your friends when you're having an innocent chat, not the people you're supposed to be holding accountable.

In fact, journalism comes out looking pretty bad in this whole trial. Clearly the White House knew how to use press sources to, as Atrios put it, "launder information" to give it a once-removed patina, so that it appeared more credible than if it was merely coming out of the mouth of the press secretary. And after the media knew they were burned by the OVP and the White House, used to sell a war and punish an enemy, after it was completely clear to all of them that they were nothing more than pawns on a chessboard, all they wanted to do was make it go away.

So as the facts of the White House cover-up now tumble out into open court, it's important to remember that if it hadn't been for Fitzgerald's work, there's little doubt the Plame story would have simply faded into oblivion like so many other disturbing suggestions of Bush administration misdeeds. And it would have faded away because lots of high-profile journalists at The New York Times, The Washington Post, Time, and NBC wanted it to.

In a sense, it was Watergate in reverse. Instead of digging for the truth, lots of journalists tried to bury it. The sad fact remains the press was deeply involved in the cover-up, as journalists reported White House denials regarding the Plame leak despite the fact scores of them received the leak and knew the White House was spreading rampant misinformation about an unfolding criminal case.

And that's why the Plame investigation then, and the Libby perjury trial now, so perfectly capture what went wrong with the timorous press corps during the Bush years as it routinely walked away from its responsibility of holding people in power accountable and ferreting out the facts.

Fitzgerald's challenge in this trial is having these knaves and losers as his key witnesses in the perjury trial. They aren't all that much more credible than Scooter Libby himself in the grand scheme of things. Of course, reporters were the defense's key witnesses as well, and on Monday they rapid-fire suggested that other Administration officials were leaking Plame's name, not Libby. One of these was former press secretary Ari Fleischer, who leaked to WaPo journalist Walter Pincus. This added to the intrigue, as it contradicted some of Fleischer's testimony for the prosecution, and suggested that he was only a witness to hold up his end of a bargain of immunity.

How the fact that Scooter Libby didn't tell everybody he knew about Plame exonerates him from lying is curious to me. But everyone comes off looking so bad in this thing that maybe Libby looks good by comparison. That appears to be the strategy:

Fitzgerald is wary of a defense "jury nullification" argument. He thinks the defense wants to argue that since Libby wasn't the leaker, and the real leakers, including Karl Rove, Richard Armitage and Ari Fleischer aren't being prosecuted, it would be unjust to convict Libby. But that's not what the defense is arguing. Everybody, including the jurors, knows that Libby isn't charged with being the leaker, only with being a liar [...]

The jury has been told over and over again that Valerie Plame Wilson's actual status with the CIA is neither relevant nor an issue in the case. They also know Libby didn't leak Plame Wilson's employment status, whatever it was, to Robert Novak. They are going to be consumed with the issue of whether Libby intentionally lied.

At any rate, the defense felt like they didn't need to do much else to impugn the prosecution's case, so they abruptly changed course, deciding that Dick Cheney and Libby wouldn't testify and closing their case. In so doing, they raised the ire of the judge, mainly because the prospect of Libby's testimony led him to hold information from the jury.

The trial fell well short of the Watergate and Iran-Contra trials that riveted the nation's attention. Defense attorneys decided not to call the two biggest witnesses they had dangled in pretrial proceedings: Libby and his former boss Cheney.

In 14 days of testimony, the trial never filled an overflow courtroom, with a video hookup, to handle the crowds expected — particularly for the cross-examination of Libby and Cheney.

Nevertheless, testimony showed that Cheney was intimately involved on a daily basis in July 2003 in rebutting Wilson's allegations that President Bush had lied about intelligence to push the nation into war with Iraq [...]

But the defense had to settle for a pale shadow of what it had planned to show: how preoccupied Libby was with topics he considered more serious. In anticipation of his testimony, the judge had ruled that he could introduce sanitized descriptions of the many topics in his daily CIA briefing and a statement that he was "very concerned" about some of the topics.

When Libby decided not to testify, Walton reversed course on Wednesday and barred almost all the classified evidence.

"My absolute understanding was that Mr. Libby was going to testify," Walton said. "My ruling was based on the fact that he was going to testify."

Pretty slick tactic, but I don't think you want to piss off the judge in this way headed into the jury instructions. Some have speculated that Libby and Cheney were never going to testify. They didn't want to get tripped up on cross-examination, period and open themselves up to more perjury charges.

Part of me thinks that Libby and his team believes that whole wingnut ideology of never showing weakness, so they're deliberately providing a bare-bones defense to "prove" how weak the prosecution's case is. Or something. But once again, what should be the crime here? Libby's whole case is that he has a faulty memory. Yet his boss was clearly so intimately involved in the leaking of Valerie Plame, how could he possibly have forgotten something that was such an extreme focus? And how can it be OK that the Vice President of the United States, someone who thinks his office exists in a special fourth branch where he doesn't have to comply with any executive OR legislative requests, can operate in a legal and ethical vaccuum?

Let's start with something that, if not quite a proven fact, is a clear inference from the trial so far: Special prosecutor Patrick Fitzgerald suspects that Vice President Dick Cheney told Libby to leak Valerie Plame Wilson's employment at the CIA to reporters during a flight aboard Air Force Two on July 12, 2003. In a post on Friday at Firedoglake, I excerpted a searing line of questioning from Libby's second grand jury appearance (in March 2004) in which Fitzgerald stacked up one reason after another why Cheney might have made such a recommendation, faced with an unexpected and unceasing media firestorm over the false intelligence behind the Iraq war [...]

In case you've forgotten, here's the issue again: Besides Libby's chats with Matt Cooper and Judy Miller, what other leaks of Valerie Plame Wilson's identity occurred on July 12 — the one to Walter Pincus, and what else? Did the Vice President of the United States authorize these leaks, and what evidence does special counsel Patrick Fitzgerald have to this effect?

Ladies and gentlemen, start your journalistic engines… and now, go!

I'm an amateur Plameologist who's only on page 16 of Anatomy of Deceit (h/t Vernonlee for letting me borrow it). But it seems to me that the real criminal acts being revealed in this trial are either unethical but legal, or incredibly illegal but not being discussed. And the implications are great for the future. While journalists may be more careful about how their conversations with official sources are being used, the Office of the Vice President and its current resident may endlessly evade any kind of oversight. Dick Cheney has created a shadow Presidency where he is completely above the law and can direct all the powers of the government at his command. How the Congress and the judiciary handle this - now and for the next Vice President - will really determine what kind of government we have going forward. For that reason alone, this trial has been of incalculable value, whether the jury renders a verdict of guilty or not (if I had to make a bet I'd say they will convict).