A Long-Ball Hitter Gets Benched

ON JUNE 5, I. LEWIS “SCOOTER” LIBBY was sentenced to thirty months in prison and fined $250,000 by U.S. District Court Judge Reggie B. Walton, following Libby’s March 6 conviction on four counts of obstruction of justice and perjury. On June 14, Walton ordered the vice president’s former aide to prepare to begin serving his term, while the Bureau of Prisons issued him a prison number and prepared a report instructing him when and where to show up—probably in July. On July 2, a three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit unanimously rejected Libby’s request to postpone his sentence during his appeal. Just hours after that ruling, President Bush commuted the prison sentence.

“I respect the jury’s verdict,” Bush said. “But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby’s sentence that required him to spend thirty months in prison.”

There were, in fact, four concurrent prison terms, all handed down within federal sentencing guidelines: thirty months for Count One, obstruction of justice; six months for Count Two, making false statements to FBI investigators; twenty-four months for Count Four, perjury (making false declarations to the grand jury); and fifteen months for Count Five, also perjury before the grand jury. While the presidential statement does not mention that Judge Walton’s decision to make the sentences concurrent had already reduced Libby’s prison time, Bush’s grant of executive clemency carefully commuted all of Libby’s prison sentences:

NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, pursuant to my powers under Article II, Section 2, of the Constitution, do hereby commute the prison terms imposed by the sentence upon the said Lewis Libby to expire immediately, leaving intact and in effect the two-year term of supervised release, with all its conditions, and all other components of the sentence.

Bush had appointed Judge Reggie Walton to the federal bench precisely because, when he served on the D.C. Superior Court, Walton was a known “long-ball hitter”—a judge who hands out severe sentences to deter crime. When the president let Libby walk, Walton quietly pointed out the flaw in Bush’s wording of the commutation. “Supervised release,” said the judge, is contingent upon release from prison. With no time served, there is literally no “release” possible; therefore, Libby is likely to evade probation as well as prison.

The right-wing noise machine, which excoriated judge, prosecutor and jury, is now celebrating the president’s decision while arguing that he didn’t go far enough when he stopped short of a pardon—one might come later. For Rush Limbaugh the trial was a “giant travesty.” Ann Coulter described the case as “a pointless investigation into nothing.” National Review published more than 150 articles on the case over the course of the trial. Coulter’s claim that Libby was declared a felon “because he had a faulty memory” succinctly reiterated the right-wingers’ claim that these were not real crimes, just perjury and obstruction of justice; that the investigation and trial were a waste of the Justice Department’s time and money.

Commuting the sentence can’t erase the public record created by the trial. Both the investigation of the CIA leak and the trial of Scooter Libby have produced a wealth of information of value and have corrected a historical record the White House had worked hard to distort.

WHAT LIBBY KNEW—To hear the White House tell it, the CIA cut the president and vice president out of the loop from 2001 through 2003—leaving the executive branch in the dark before 9/11 and when critical decisions were being made regarding the urgency of war in Iraq. That narrative, however, was not borne out by the investigation and prosecution of Scooter Libby. Congressional investigators would do well to review the trial transcripts if they ever get serious about resuming their inquiry into the lead-up to the Iraq War.

They can begin looking at day two of the Libby trial, January 24, 2007, which saw testimony from government witness Craig R. Schmall, a veteran CIA officer and a manager in the Directorate of Intelligence, who served as a CIA briefer for Scooter Libby and Vice President Cheney.

Schmall was among CIA managers who gave Libby and Cheney their equivalents of the “PDB”—the Presidential Daily Briefing. Schmall briefed Libby six days a week from the summer of 2002 through the fall of 2003. For a time, in winter 2002–03, he briefed both Libby and Cheney on Mondays and Tuesdays of each week at Cheney’s Observatory residence and briefed Libby on Saturdays at Libby’s home. From the fall of 2003 until the end of May 2004, he was one of Cheney’s intelligence briefers.

Schmall testified that he got up about 2:30 each morning to prepare for the briefings, which began at 7 a.m. and lasted about forty minutes. Briefings involved three binders, two briefing books to be read by Libby and Cheney and one preparation binder for Schmall. Results and taskings were then typed into a database and pooled with results from briefers of other senior government officials. Afterward, the binder contents went to a shredder and burn bag, while Schmall retained each binder’s table of contents: “They still exist,” Schmall testified matter-of-factly.

Libby’s attorneys cross-examined Schmall from detailed lists of specific threat items and other serious issues he raised in a single briefing. As part of a strategy to demonstrate that Libby was so overwhelmed with important details that his memory was fuzzy when it came to the matter of leaking the name of a CIA operative, defense counsel explored twenty-seven topics, including terrorist strikes and threats around the globe and significant actions by North Korea, Iran and Iraq. Schmall’s January 24 testimony confirms that CIA briefers were on the job every morning, informing the executive branch of issues critical to U.S. security.

A Congressional investigation of the lead-up to war, or an inquiry by a House committee preparing for impeachment hearings, would subpoena these tables of contents. Topics detailed for daily briefings would shed light on the White House efforts to cover up its unraveling claims that Saddam Hussein had weapons of mass destruction.

SECRETS AND LIES—What did Libby and Cheney learn (from their CIA briefers) regarding the separate topics of Al Qaeda and Iraq? And when did they learn it? Schmall testified that at some point he stopped providing Libby with complete lists of terrorist threats, presumably during the CIA leak investigation. The agency cut Libby out of complete terrorist-threat briefings as the administration kept Libby in the fold but out of the loop after his functionality was impaired.

Other testimony at the trial rebuts the White House claim that the U.S. went to war in Iraq as a last resort. Government witness Robert L. Grenier, for example, a twenty-seven-year veteran of the CIA, testified that he was an “Iraq manager” and served as “point person for Iraq” in 2002 and 2003—before the White House admitted its determination to invade Iraq.

From 2002 to 2004, as a CIA associate deputy director for operations, Grenier attended all Deputies Committee meetings—meetings of deputies from the National Security Council, State Department, Pentagon, CIA and other agencies—as agency director George Tenet’s “Iraq mission manager.” Meetings on Iraq were frequent, two or three times a week; regular events that marked the beginning of Grenier’s acquaintance with Cheney’s then–chief of staff, Scooter Libby, who also attended the Iraq meetings. Grenier attended these meetings in the White House Situation Room as “plus one”—a back-up note-taker. Principals and deputies did not go to these meetings alone.

Grenier entered the CIA leak narrative on June 11, 2003, when he received more than one tense phone call from Libby—who even pulled Grenier out of a meeting with CIA director Tenet. The meeting concerned former ambassador Joe Wilson, who had gone to the African nation of Niger to check out a bogus story that Iraq was purchasing uranium there. Grenier confirmed to Libby that the CIA had shown some interest in Wilson’s Niger trip, adding later the same day that Wilson’s wife, Valerie Plame Wilson, worked for the CIA. She in fact worked in the agency’s Counter-Proliferation Division, in the unit that specialized in weapons of mass destruction—where the “overwhelming majority” of analysts, according to testimony, were covert.

WHITE HOUSE HIT MEN—If testimony was detailed and complex, the crime that generated it was simple and straightforward: A cabal of decision-makers in the White House and the Office of the Vice President acted in concert to discredit Joe Wilson and, more important, his agent wife after Wilson had criticized the administration’s contentions about Iraq’s purchase of uranium in Niger. The coordinated attacks grew in intensity after Wilson published a July 6, 2003, New York Times op-ed article entitled “What I Didn’t Find in Africa,” debunking the administration’s Niger uranium story and undermining the “mushroom cloud” argument being used to justify the war. In his 800-word piece, Wilson had dismantled the central premise of the administration’s case for war in Iraq and revealed the famous “sixteen words” in Bush’s 2003 State of the Union speech to be false. (“The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.”)

The strike against Valerie Plame Wilson—one that ended her career in government—was a well-coordinated media-manipulation hit. Testimony and documents corroborate that, at a minimum, between June 13 and July 12, 2003, the information about Mrs. Wilson’s secret CIA identity was given to Washington Post reporter Bob Woodward by then–Deputy Secretary of State Richard L. Armitage, who also gave it to columnist Robert Novak. It was conveyed by Libby himself to departing White House press secretary Ari Fleischer, who also heard it, according to his grand jury testimony, from White House aide Dan Bartlett. Fleischer in turn gave it to three reporters, including NBC’s David Gregory, who did not publish it. Libby also divulged it in an “exclusive” to then–New York Timesreporter Judith Miller. White House chief of staff Karl Rove also confirmed the information for Robert Novak, who published it in a column on July 14, 2003, and gave it to Time magazine reporter Matt Cooper. Washington Post reporter Walter Pincus also received it, as did Post reporter Glenn Kessler. Other press contacts or attempted contacts in the same period included NBC’s Andrea Mitchell and Chris Matthews, the latter of whom told Wilson that Rove had called Mrs. Wilson “fair game.”

The coordinated operation, a PR firing squad in which no one can tell which cadet fired the fatal bullet, enabled Libby supporters and sympathetic media outlets to claim that Libby was merely a fall guy who was unfairly prosecuted and excessively sentenced.

THE COMPANY HE KEEPS—As a seasoned lawyer who had helped fugitive financier Marc Rich obtain a presidential pardon from Clinton before he went to work for Cheney, Scooter Libby had numerous friends in the legal community. Shortly before his bail hearing, the distinguished law professor Alan Dershowitz assembled a group of twelve lawyers who filed a friends-of-the-court brief arguing that the appointment of the special counsel who had prosecuted the case was unconstitutional.

Other law professors joined him: Vikram Amar of the University of California; Dershowitz’s Harvard Law colleague Richard D. Parker; Viet D. Dinh and fellow Georgetown Law colleague Randy E. Barnett; Douglas W. Kmiec and Robert J. Pushaw of Pepperdine Law School; Gary Lawson of Boston University; Earl M. Maltz of Rutgers; Thomas Merrill of Columbia; Robert F. Nagel of Colorado; and Robert H. Bork, the Watergate era solicitor general whom Nixon successfully ordered to fire his special prosecutor in the famous “Saturday Night Massacre.”

Judge Walton allowed the professors to file their brief, encouraging them, with somewhat sarcastic undertones, to become involved in helping other defendants in the future:


It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is an reflection of these eminent academics’ willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

Walton was professorial in his critique of the brief, saying it was “not something I would expect from a first-year law student.” He said he had the impression that eminent names had been “thrown out there” to apply pressure on the court. Three appellate judges denied, without comment, the law professors’ request to file their brief in the appeals court.

GLOBAL DIMENSIONS—Bush’s criticism of Libby’s sentence as “excessive,” a reflection on one of the few African-Americans he has appointed to the bench, followed private ad hominem attacks on Judge Walton. When Walton entered the courtroom on June 14 to rule on whether Libby should be ordered to report for prison pending appeal, he admitted “[in] the interest of full disclosure” that he had “received a number of angry, mean-spirited phone calls and letters regarding the sentence.” The messages, Walton explained, included “wishing bad things on me or my family. . . . At first I threw them away, but then I got more letters, even more hateful than the others. I’m preserving them—in the event that something does happen.”

Libby’s appeal is set to go forward but has not been filed. The prosecutor, Special Counsel Patrick Fitzgerald, has issued a statement that “[a]lthough the President’s decision eliminates Mr. Libby’s sentence of imprisonment, Mr. Libby remains convicted by a jury of serious felonies, and we will continue to seek to preserve those convictions through the appeals process.” Lawyers have observed that Libby could still be immunized against further prosecution, and thus he could testify about the actions of Bush and Cheney leading to war in Iraq.

The checks on power in our system of government are the will of the people and the rule of law. Both are under attack by strident proponents of the Iraq War who are still trying to justify their failed endeavor.

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