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CIA Leak: Legal Ramifications

October 28, 2005 at 12:00 AM EDT


MARGARET WARNER: And to analyze these indictments and the legal case being against Lewis Libby, we’re joined by two experienced prosecutors: Robert Ray worked for and as independent counsel on the Whitewater, Monica Lewinsky, and White House Travel Office Investigations during the Clinton years; previously he and Patrick Fitzgerald served together as assistant U.S. attorneys for the Southern District of New York. Richard Ben-Veniste served as assistant U.S. attorney during the Watergate scandal and was chief counsel for the Democrats on the Senate Whitewater committee.

Welcome to you both.

Mr. Ray, as a former prosecutor, how does this case look to you?

ROBERT RAY: Well, it’s the beginning of the process. An indictment has been returned; as we’re always taught as prosecutors and reminded by judges, the indictment in some sense to the trial process means nothing. It’s simply an accusation. And it’s the commencement of legal proceedings. Obviously, this is what we refer to as a speaking indictment, and we now know a little bit more than we did before about –

MARGARET WARNER: I’m sorry, what does “a speaking indictment” mean?

ROBERT RAY: Well, it means something more than just the allegations involving, you know, the bare-bone charge, but explain, as Mr. Fitzgerald did at the press conference, a little bit more about the context under which he alleges that false statements, obstruction of justice, and perjury have been committed.

MARGARET WARNER: So Mr. Ben-Veniste, based on what’s laid out in these indictments right in front of you and what you heard Fitzgerald say, as another former prosecutor, how strong a case does this look? Is this a hand you’d like to play?

RICHARD BEN-VENISTE: Well, I think what we heard today was a piece of an opening statement at the trial. As Robert said, this indictment lays out the facts in chapter and verse in a dispassionate but very detailed way.

It lays out the fact that from four separate independent sources within the government Mr. Libby received information about Mr. Wilson and his wife. Yet, in statements to the F.B.I. and then subsequent statements on two occasions, under oath, before the grand jury, he claimed that he first learned this information from the press, from three different individuals in the press who he claimed he had no knowledge about the underlying facts before he heard that information from the press.

And it sounds like Mr. Fitzgerald would argue that he thought he could safely hide behind and disguise the true facts because he never believed that the individuals from the media with whom he had these discussions would ever testify about them.

MARGARET WARNER: So Mr. Ray, how hard or easy will it be to take this case to trial to prove this at trial, given just the evidence that is laid out in the indictment?

ROBERT RAY: I think it’s safe to say that perjury cases and false statements cases are very difficult to prove because they’re not simply about proving that statements that were made were false. You have to go further, and you have to prove that at the time the statements were made, they were intentionally false.

In this particular case, though, Prosecutor Fitzgerald has laid out a case that is not simply about allegations involving an isolated occurrence or two but he emphasized at his press conference this afternoon that the critical component of those allegations, which is the sum and substance of the obstruction charge, that what is alleged here was a repeated effort to mislead first investigators and then the grand jury.

MARGARET WARNER: And so, Mr. Ben-Veniste, does that make it – just following up on what he said — does that make it easier to prove or more complicated to prove?

RICHARD BEN-VENISTE: It makes it easier to prove because the defense will be that this was an honest mistake, if in fact it is shown that the statements he made were inaccurate or false.

Then the question is whether they were knowingly false, and whether the information that was alleged to be false was material to the investigation. In all of those instances, the prosecutor has now laid out the reason why they were important and material, and the reason why it would not be credible to believe that this was inadvertent since it was repeated, and since there were so many different sources within the government for that information, how could Mr. Libby have been mistaken in thinking he received that information in the first instance from the press.

This was a detailed investigation of Mr. Wilson and his family and his connections, and as the result of that, he was armed with information, which he then subsequently, according to this indictment, discussed with the press.

MARGARET WARNER: So you’re saying, in other words, the prosecutor would argue, look at all these conversations that he had with other members of the administration, and you bring them all in to testify, and then say, so how could he come in and tell the grand jury that the first he heard of it was Tim Russert, and he never even discussed it with Tim Russert.

RICHARD BEN-VENISTE: That’s right. Mr. Russert said he never had that conversation, as well as the other individuals with whom Mr. Libby apparently testified he learned about the connection of Mrs. Wilson when in fact those individuals claim he was the source of that information.

MARGARET WARNER: Robert Ray, how would you defend — if “Scooter” Libby were your client, what is the defense here?

ROBERT RAY: What the prosecutor is looking to do is to show, as I’ve suggested, a pattern of activity, and the allegations, therefore, center around on the back end the discussions that Mr. Libby allegedly had with more than one reporter now.

It’s not just simply Judith Wilson, not simply Tim Russert, but Mr. Cooper. And so it’s really the combination of all those things.

I think it still, obviously, would be a case defended, as every one of these cases would be defended, on the question of intent, that that was not his intention, and that his effort was not to mislead investigators, and that there was, you know, a failure of recollection that ultimately played out in terms of the multiple statements that he made, but that what he was not trying to do here was to violate the law.

MARGARET WARNER: Mr. Ray, also, explain what — and reporters asked this several times this afternoon — Fitzgerald said her job, Valerie Wilson’s job, the fact of her job at the agency was classified.

And he also alleged that “Scooter” Libby told several reporters about it, people not authorized to know this. Why couldn’t he, wouldn’t he bring a charge of disclosing classified information?

ROBERT RAY: Mr. Fitzgerald pointedly declined to answer that question. And there really can be only two reasons why he would have not brought charges here in connection with the types of statutes that you’re describing.

One possibility is that he may have concluded simply that he didn’t have sufficient evidence to prove that beyond a reasonable doubt. The second may be even assuming that he could prove it, he may have decided to exercise his discretion not to charge those offenses.

A good prosecutor knows when to say enough, and the worst mistake you can make is over charge a case.

In connection with, for example, the Classified Information Statute, I think most observers of that statute have correctly pointed out that that statute sweeps rather broadly. And it gets into questions as a matter of discretion as to which cases are appropriate to prosecute, given the vagaries of our system of classifying information and un-classifying or declassifying information.

It’s hard to pick and choose and divide lines between, you know, what’s over the line and what isn’t, and also it bumps up against legitimate parameters of the First Amendment, and the need of the press to know information that involves the operations at the highest levels of government.

RICHARD BEN-VENISTE: I would agree with that, Margaret.


RICHARD BEN-VENISTE: In that I think Pat Fitzgerald explicitly discussed the fact that this is a very broad statute, and that he did not feel that it was appropriate under the circumstances of this case to use it.

And this is a statute that can have a terribly chilling effect on the ability of individuals to discuss important matters with the press that warrant discussion.

This case has turned everything on its head. It’s turned whistle blowers on its head because you have someone who was trying to hide behind nondisclosure by the press, and use the press as a shield for his own information.

MARGARET WARNER: Briefly, let me just ask you, how did you read his language, Fitzgerald’s, and body language about continuing this investigation?

ROBERT RAY: I think I can answer that.


ROBERT RAY: The — the body language that I saw, which I think has escaped some attention, is that while it is nominally true that Mr. Rove remains under investigation, I think the signal was quite clear that if there is a cloud hanging over Mr. Rove, it is very far in the distance now, and if anything, I’m sure that Mr. Rove has breathed a heavy sigh of relief and can go back to doing what he was doing before this investigation commenced.

MARGARET WARNER: Briefly, do you agree?

RICHARD BEN-VENISTE: I do agree. I think that the substantive part of the investigation is more or less wrapped up. But a grand jury will be utilized, Mr. Fitzgerald said, if more information comes forward. He has also indicated that Mr. Rove is still under investigation.

MARGARET WARNER: All right, Richard Ben-Veniste, and Robert Ray, thank you both.