Libby Convicted of Perjury, Obstruction of Justice
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RAY SUAREZ: It took the jury 10 days to reach guilty verdicts in the perjury trial of Lewis “Scooter” Libby, Vice President Cheney’s former chief of staff.
Libby was convicted on four of five counts resulting from Special Prosecutor Patrick Fitzgerald’s investigation into who leaked the name of CIA operative Valerie Plame.
As she had been throughout the trial, Carol Leonnig of the Washington Post was in the courtroom when the verdicts were announced, and she joins us once again.
And after the jury being out for a long time, Carol, there must have been some anticipation and reaction when the verdicts were read.
CAROL LEONNIG, The Washington Post: There was. You know, there was a lot of feeling on the part of reporters that, you know, what’s going on with the jury? Why is it taking so long? Ten days of deliberations after a 14-day trial, it seemed a little out of whack.
And when the verdict was read, actually what was striking was there was almost no emotion, no visible sign of any reaction on the part of the defendant, Scooter Libby, the vice president’s former chief of staff.
RAY SUAREZ: There were five counts in all. Could you quickly walk us through how they broke down?
CAROL LEONNIG: I sure can. There were five counts. Two counts were felony charges of lying to the FBI; two counts of lying to the grand jury, perjury counts; and one count, the most serious of all, which was obstruction of justice.
The jury found Mr. Libby guilty on all but one of those counts. On the one that he was found innocent of was one that the jury had struggled with for the last five days, lots of questions back and forth. It was the charge suggesting that Mr. Libby had lied to the FBI about conversations he had about Valerie Plame, the CIA officer, who’s at the center of this leak probe, conversations he had with Time magazine’s Matt Cooper about her.
And the concern the jury had at the time was that, in notes they sent to the judge, that they weren’t sure that the FBI had gotten these statements Mr. Libby had made exactly right. So there are a lot of experts today we’ve spoken to already this afternoon who feel that the jury was giving him the benefit of the doubt.
On another related count, in which Mr. Libby described that same conversation with Mr. Cooper to the grand jury, the jury in this case found him guilty of lying about that conversation with Mr. Cooper.
RAY SUAREZ: And we know that was the hold-up with the jury how? Were the jurors open about that after they were dismissed today?
CAROL LEONNIG: Well, we know it two ways. One is that the notes. They were over and over again asking in different incarnations how exactly, your honor — and all these notes were addressed to the judge — how shall we deal with this issue in count three? Can we use the information from the grand jury to make a decision about Libby’s statements to the FBI?
Keep in mind, if you can’t remember this, keep in mind that the defense had very effectively during trial raised questions about the accuracy of the FBI’s report or its own notes about Libby’s statements to them about the conversation with Matt Cooper. There was a suggestion the FBI didn’t accurately describe that conversation.
Now, the grand jury testimony that Libby gave, in which he described this conversation, was tape-recorded and transcribed.
Next steps for Libby
RAY SUAREZ: Today on the courthouse steps, Scooter Libby's attorney, Theodore Wells, said his client was totally innocent and did not do anything wrong. He said he would request a new trial and, failing that, appeal.
Did he talk about the basis for appeal? What he thought about the trial gave him some hope of getting it revisited in another courtroom?
CAROL LEONNIG: No, he has not publicly disclosed that. But I would give your viewers an idea of what are some possibilities, based on Mr. Wells' and defense attorney Bill Jeffress's remarks in trial.
In trial, one thing that hasn't really been written a lot about is the fact that the defense side repeatedly tried to make clear to the judge that they were making a record for a possible appeal, in case the verdict went not their way. And so there were elements in which they disagreed with the judge.
They felt the judge's instructions were unfair or prejudicial to their client. There were instances where they complained about questions that the prosecutor was allowed to ask that they objected to. So all of these things could be fodder for an appeal.
As well, experts we've talked to today say, keep in mind, things that jurors say after the fact can be mined for a feeling or an impression that they got the wrong idea about how they were supposed to decide this case. And that's some material that the defense could use in seeking a new trial and potentially in appealing.
RAY SUAREZ: When will we next see Scooter Libby and his defense team in court?
CAROL LEONNIG: Well, right now, in terms of physically seeing him, the next chance will be in June. However, don't worry. We're not going away. There will likely be some voluminous pleadings from the defense about the request for a new trial, and that should be within the next 30 to 40 days.
RAY SUAREZ: And what kind of penalties could Lewis Libby face at this point?
CAROL LEONNIG: The prosecutor in this case has not clarified what he would seek. And because of a recent Supreme Court ruling, the judge has a lot of latitude to make a decision.
Federal sentencing guidelines would suggest that anywhere from 1.5 to 3 years; some people take a more rigid interpretation and think that the time frame could be a little bit longer.
But keep in mind, since this Supreme Court decision, the judge in this case, Judge Walton, has a lot of room to make that decision. The prosecutor still has to make a recommendation. And keep in mind, as well, that Judge Walton is known in defense circle as a long-ball hitter.
RAY SUAREZ: And when you give those frames for sentences, is that per count?
CAROL LEONNIG: No, it's all based on conduct. And all of this conduct is related to basically a series of statements, a series of now-convicted lies, his description of what he said to reporters and his description of how he learned about this CIA officer's classified status.
Remember, this all boils down to three things. The prosecution says that Scooter Libby lied to try to conceal his role in this leak and that he lied about the fact that he learned this information from Cheney. He tried to say that he felt he learned it all over again from a reporter and that he passed along that information as unconfirmed gossip to other reporters.
Of course, the reporters testified differently. The reporter that he says told him this information says, "I never told him that, because I never knew it."
RAY SUAREZ: Carol Leonnig of the Washington Post, thanks for joining us.
CAROL LEONNIG: Thank you.
Former U.S. attorneys react
RAY SUAREZ: For more on today's verdict, we're joined by Richard Ben-Veniste, former assistant U.S. attorney for the southern district of New York. He worked for the special prosecutor investigating Watergate and was the Democratic chief counsel on the Senate Whitewater Committee.
And we're joined by Victoria Toensing, a former assistant U.S. attorney in Detroit. She served as deputy assistant attorney general during the Reagan administration. Both are now in private practice here in Washington.
And, Richard Ben-Veniste, let me start with you. What do you make of today's verdict?
RICHARD BEN-VENISTE, Former Assistant U.S. Attorney: Well, this was a jury that took its time and deliberated over 10 days, so no one can suggest that there was a rush to judgment. It was a case that was very well-tried by both the prosecution and the defense.
I think we saw the best of class in both categories, and they had a hard-fought case. But at the end of the day, four out of the five counts were guilty beyond a reasonable doubt.
And I think the implication beyond that for Scooter Libby, which is always a tragedy for the family and the individual and, in this case, a brilliant and accomplished man whose career may well be over in the law, that's a difficult thing to take.
But the jury, in considering the defense put forward, indeed, the notion that Scooter Libby was a fall guy for others in the administration, certainly in the comments made after the verdict seemed to resonate with the jury. There was a lot of sympathy for Mr. Libby in that jury room.
And yet, at the end of the day, they looked at the evidence and concluded beyond a reasonable doubt that he -- not only that his statements were false, but that he must have known they were false at the time that he gave them.
RAY SUAREZ: Victoria Toensing, your reaction?
VICTORIA TOENSING, Former Assistant U.S. Attorney: First, I believe that the argument by the defense that Scooter Libby was a fall guy was really a political argument trying to put the trial in the context of what many of us believe it was: There was a political fight going on between the White House and the CIA at the time.
And so, therefore, that's how the defense wanted to posture it, as best it could, given what the confines you have when you have to obey the trial evidence.
A 'he said-he said' case?
RAY SUAREZ: And it seems, from what the jury said, that that argument hit home to a certain extent.
VICTORIA TOENSING: It did. I mean, I thought it was a bizarre comment that something on the jury said, "Well, where's Karl Rove? Why isn't he here?"
And actually that brings me to a piece that I wrote a couple of weeks ago about -- I have always criticized the standard of evidence that was required in this case to be brought. To me, it's a basic he said-he said case.
I don't know of a case where the prosecutor didn't bring in something that was outside extraneous, like another witness who said, "Well, he came into me. He said I'm really afraid. And would you kind of help me? I didn't say this, did I?"
I mean, that, if you have another witness coming in and saying that, that's meaningful, and it's a proper case to be brought. But this whole case doesn't...
RAY SUAREZ: So when you say -- you wanted corroboration beyond the two parties to all these conversations?
VICTORIA TOENSING: Beyond inconsistent conversations, because, if you go in to a good many of the witnesses, the important witnesses, there were as many inconsistent statements on their part with somebody else in the case as there was between Scooter Libby and the Matt Cooper statement and Scooter Libby and the Tim Russert statement.
RAY SUAREZ: He said-he said, Richard Ben-Veniste?
RICHARD BEN-VENISTE: I think it's more he said-they said. In proving the state of mind of an individual, that is that he must have known that he was testifying falsely at the time he gave the testimony, unless you have a confession or unless you have a statement to another person, "I was lying when I went into the grand jury," then you must prove that evidence through circumstantial evidence, that is, whether the number of people and the circumstances under which he had the information, how did he obtain the information, from what number of sources? How much time did he devote to this issue?
He was doing the vice president's bidding in trying to attack a critic of the administration, Ambassador Wilson, who was very clear that the statements that were made by the president about uranium had been twisted, and he was incensed about that. And now, the vice president unleashed an attack on Wilson personally.
And in the course of that, I think Valerie Plame's identity and her involvement with the CIA was simply collateral damage. Nobody thought what this would mean to an individual who had devoted her life to the CIA and had the United States spending a great deal of time, effort, money, and security on her status.
And so, as things unfolded, I think it was the jury stacking up all of this circumstantial evidence and concluding that Mr. Libby must have known at the time he gave that testimony that it was erroneous.
VICTORIA TOENSING: But, see, there's something wrong with political attacks. This goes on every single day here in Washington. Somebody comes out, and Joe Wilson comes out, and says the president lied in his State of the Union. Of course, any White House. Name me a White House in the last 40 years who wouldn't gear up and say, "All right, now what's wrong with this? Why is he saying this? How come we didn't we know?"
Because in his op-ed piece, Wilson said -- made it seem like the vice president sent him on this trip. You can understand why the vice president's office says, "Well, we've got to find out about this, and we've got to set the record straight. Let's figure out what happened."
So I really think that's -- you know, in fact, that's my point, is that attack should not be criminalized.
But when you start taking a situation -- for example, Fitzgerald came up to Ari Fleischer and said, "Hey, I'm going to give you immunity, and I don't even know what you're going to say." Now, that shows he had some kind of an agenda. He was going in some certain direction, because Ari Fleischer's testimony was at trial was as inconsistent with the Washington Post reporter, Walter Pincus, as Scooter Libby's was...
Grounds for appeal?
RAY SUAREZ: Let me get a quick response from you, because you're talking about the fact that the underlying crime was never charged, and there may not even be a crime. But once you're sitting in a grand jury and you take an oath to tell truth, isn't that kind of besides the point? If you start to tell stories about what you did, the fact that there was an underlying crime or not being charged doesn't really matter, right?
VICTORIA TOENSING: Absolutely, Ray, but here's my point, and why prosecutors have to be very careful to bring these cases when there is only inconsistent testimony with somebody else. People get into that kind of setting.
Look, Tim Russert, who's a great person, a smart person, has a law degree, took the stand and said he didn't know that a lawyer could not go into the grand jury with the client. The lawyer had to stay outside. So I'm sure maybe he misspoke, whatever, but as he was continually pressed about it, he said, "No, I'm not a criminal lawyer, I don't practice."
And so people in a situation like that sometimes say something that's a little bit off. Ari Fleischer said something that wasn't correct. That happens, and that's why a prosecutor needs to have independent evidence outside of just the two statements that differ.
RAY SUAREZ: Grounds for appeal. Are there?
RICHARD BEN-VENISTE: I don't know of any offhand. There are always arguments during the trial about admissibility of evidence of the instructions given to the jury, but let me reflect on something that was...
RAY SUAREZ: Hold on just a second.
RICHARD BEN-VENISTE: ... that was said a moment ago about politicization. Not even the president of the United States, anyone in the administration, has attacked Mr. Fitzgerald on the basis of a political motive for bringing this case. And I'm very surprised at that, to hear that. Nobody has suggested that Mr. Fitzgerald...
VICTORIA TOENSING: I don't make that, so let me...
RAY SUAREZ: Quickly, grounds for appeal?
VICTORIA TOENSING: ... of course not. I question his judgment. The politicizing was the food fight that was going on, that was the basis for all of this. Several grounds, materiality of statements, even just the appointment of Fitzgerald being constitutional. There are a number, and I'm sure you'll address them when the time comes.
RAY SUAREZ: And we will. Thank you. Thank you both.