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In the days following the October 28 indictment of I. Lewis "Scooter" Libby on charges of obstruction of justice, perjury, and false statements, numerous conservative media figures have asserted that special counsel Patrick J. Fitzgerald's investigation of the CIA leak case found that no underlying crime had been committed. That assertion is false. Fitzgerald has stated only that he was unable to determine whether the alleged leak itself constituted a violation of the law. As set out in the indictment and at his October 28 press conference, Fitzgerald accused Libby of obstructing the grand jury's efforts to investigate the alleged leak, preventing a determination of whether it violated federal law.
In an October 28 press release summarizing the indictment, Fitzgerald explained that the grand jury's efforts to get to the bottom of the leak of CIA operative Valerie Plame's identity had been impeded by Libby's testimony:
Without the truth, our criminal justice system cannot serve our nation or its citizens. The requirement to tell the truth applies equally to all citizens, including persons who hold high positions in government. In an investigation concerning the compromise of a CIA officer's identity, it is especially important that grand jurors learn what really happened. The indictment returned today alleges that the efforts of the grand jury to investigate such a leak were obstructed when Mr. Libby lied about how and when he learned and subsequently disclosed classified information about Valerie Wilson.
In a press conference that same day, a reporter specifically asked Fitzgerald whether the investigation was over and whether the probe would fail to "lead to a charge of leaking." In response to the first question, the special counsel confirmed that the investigation had not concluded. In response to second question, Fitzgerald compared himself to an umpire who while attempting to determine whether a pitcher intentionally hit a batter had sand thrown in his eyes:
QUESTION: Mr. Fitzgerald, this began as a leak investigation, but no one is charged with any leaking. Is your investigation finished? Is this another leak investigation that doesn't lead to a charge of leaking?
FITZGERALD: Let me answer the two questions you asked in one. OK, is the investigation finished? It's not over, but I'll tell you this: Very rarely do you bring a charge in a case that's going to be tried and would you ever end a grand jury investigation. I can tell you, the substantial bulk of the work in this investigation is concluded. This grand jury's term has expired by statute; it could not be extended. But it's in ordinary course to keep a grand jury open to consider other matters, and that's what we will be doing.
Let me then ask your next question: Well, why is this a leak investigation that doesn't result in a charge? I've been trying to think about how to explain this, so let me try. I know baseball analogies are the fad these days. Let me try something. If you saw a baseball game and you saw a pitcher wind up and throw a fastball and hit a batter right smack in the head, and it really, really hurt them, you'd want to know why the pitcher did that.
In this case, it's a lot more serious than baseball. And the damage wasn't to one person. It wasn't just Valerie [Plame] Wilson. It was done to all of us.
And as you sit back, you want to learn: Why was this information going out? Why were people taking this information about Valerie Wilson and giving it to reporters? Why did Mr. Libby say what he did? Why did he tell [New York Times reporter] Judith Miller three times? Why did he tell the press secretary on Monday? Why did he tell Mr. [Matthew] Cooper [Time magazine correspondent]? And was this something where he intended to cause whatever damage was caused? Or did they intend to do something else, and where are the shades of gray?
And what we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He's trying to figure what happened, and somebody blocked their view. As you sit here now, if you're asking me what his motives were, I can't tell you; we haven't charged it. So what you were saying is the harm in an obstruction investigation is it prevents us from making the fine judgments we want to make.
In neither the press release nor the press conference did Fitzgerald assert or suggest that he had concluded that no crimes were committed in the act of leaking itself. Nonetheless, several conservative commentators responded by claiming that the probe had found that no underlying crime had been committed:
- New York Times columnist Wiliam Safire said on the October 30 broadcast of NBC's Meet the Press: "And everybody is walking around thinking, 'Well, you see? There was a conspiracy to undermine or uncover an agent.' Well, there wasn't. It was not. And he [Fitzgerald] said it very clearly. And so I think we ought to keep that in mind. This was a cover-up of a non-crime."
- Syndicated columnist Charles Krauthammer said of Fitzgerald on the October 28 edition of Fox News' Special Report with Brit Hume: "[W]hat he's telling us is, 'Look, I've spent two years on this, and I have not located that crime, it doesn't exist.' " On the October 28 edition of Fox News' Your World with Neil Cavuto, Krauthammer also stated that the "great alleged crime, the outing of a secret agent in order for a White House to embarrass and punish a critic, apparently never happened. Because if it did, you can be sure the prosecutor -- the Captain Ahab of the case -- would have indicted somebody for the crime."
- Former Attorney General Dick Thornburgh stated on the October 30 edition of CNN's Late Edition with Wolf Blitzer that "this 22-month investigation has not turned up any substantive violation of the criminal laws." On the October 31 edition of CNN's The Situation Room, Thornburgh also said, "It appears that after 22 months of investigation, as of now, that no crime was committed in the disclosure of Valerie Plame's CIA status."
Similarly, other conservative media figures suggested that Fitzgerald found that no underlying law had been violated. They each claimed that Libby had been indicted for allegedly covering up a crime he did not commit:
- New York Times columnist John Tierney wrote (subscription required) on October 29 that "The indictment merely demonstrated that the cliché about the cover-up being worse than the crime is especially true when there was no crime to begin with."
- On the October 30 edition of Fox Broadcasting Co.'s Fox News Sunday, Washington bureau chief and host Brit Hume stated that Libby "is accused of telling lies that he apparently didn't need to tell about a crime he didn't commit."
- MSNBC news analyst and former Republican presidential candidate Pat Buchanan said on the October 28 edition of MSNBC's Scarborough Country that "they nailed him on perjury and obstruction of justice, in an investigation of a crime Libby apparently didn't commit."
Republican attorney Victoria Toensing also described Libby's alleged obstruction as "a cover-up about something that's not a crime." Appearing on the October 28 broadcast of his nationally syndicated radio show, Toensing told Fox News host Sean Hannity that Fitzgerald had "dodged" a question at the press conference about whether the leak itself represented a violation of the law. But as the excerpt above shows, Fitzgerald did answer the question. He stated that Libby's efforts to obstruct the case had prevented him from determining whether the law had been violated.
During a one-on-one interview on ABC's October 30 broadcast of This Week, Sen. John Cornyn (R-TX) also echoed the claim that no crime had been committed. Cornyn said of the investigation, "The question was not only was there a crime committed in outing a covert CIA agent, which apparently there was not, but did someone cooperate and tell the truth to the grand jury?" Host George Stephanopoulos did not correct or challenge Cornyn's suggestion.
From the October 30 edition of CNN's Late Edition with Wolf Blitzer:
THORNBURGH: Well, that may be good politics, but that's a judgment that the president has to make. The fact of the matter is that this 22-month investigation has not turned up any substantive violation of the criminal laws. The derivative offenses that were charged are very serious, but the original basis for this investigation was that laws had been violated by the revealing of Valerie Plame's name.
BLITZER: And in the indictment, paragraph 21, it says this -- I'll read it, I'll put it up on the screen: "On or about July 10th or July 11th, 2003, Libby spoke to a senior official in the White House," described as Official A, "who advised Libby of a conversation Official A had earlier that week with columnist Robert Novak in which Wilson's wife was discussed as a CIA employee involved in Wilson's trip. Libby was advised by Official A that Novak would be writing a story about Wilson's wife."
THORNBURGH: Defies belief. It's really very difficult to figure out, particularly since there apparently was in the eyes of the special counsel no criminal violation existed. He wasn't covering up anything that was --
From the October 31 edition of CNN's The Situation Room:
THORNBURGH: Well, this is kind of like the old Sherlock Holmes tale -- the dog that didn't bark -- is the most significant thing. It appears that after 22 months of investigation, as of now, that no crime was committed in the disclosure of Valerie Plame's CIA status, and I think that's significant. We have serious charges brought against Mr. Libby. No one should denigrate the importance of people testifying truthfully and not interfering with investigations. But that's out in the realm of allegations, and now we'll have a trial.
From the October 20 broadcast of NBC's Meet the Press:
SAFIRE: But the most important thing is the whole basis of the political charge that came out of the CIA, which was desperate to try to cover up its own mistakes and its own huge failure in this case. This was an attempt by the CIA to get a Justice Department investigation of a law that had not been prosecuted in -- once, perhaps in 25 years. And everybody is walking around thinking, "Well, you see? There was a conspiracy to undermine or uncover an agent." Well, there wasn't. It was not. And he said it very clearly. And so I think we ought to keep that in mind. This was a cover-up of a non-crime.
From Tierney's October 29 column (subscription required) headlined "What Fitzgerald Didn't Say":
The indictment merely demonstrated that the cliché about the cover-up being worse than the crime is especially true when there was no crime to begin with. If the facts in the indictment are accurate, then Libby deserves to be prosecuted, and maybe his example will do some good in the future -- at the very least, officials will be more careful about protecting the identities of covert operatives.
From the October 30 broadcast of Fox Broadcasting Co.'s Fox News Sunday:
HUME: That's the key question. I mean, Fitzgerald's presentation, very impressive. Fitzgerald himself, equally impressive. His narrative of what happened sounds like an open-and-shut case. However, it's worth noting that this man is accused of telling lies that he apparently didn't need to tell about a crime he didn't commit, which raises questions.
From the October 28 edition of Fox News' Your World with Neil Cavuto:
KRAUTHAMMER: Well I think what's most interesting about this is what really didn't happen. I mean, the great alleged crime, the outing of a secret agent in order for a White House to embarrass and punish a critic, apparently never happened. Because if it did, you can be sure the prosecutor -- the Captain Ahab of the case -- would have indicted somebody for that crime. It didn't happen. So what we have, of course, is the usual Washington story of the crime about the non-crime, which is allegedly the perjury.
From the October 28 edition of Fox News' Special Report with Brit Hume:
KRAUTHAMMER: If that is such a heinous act, how come there is no indictment for the alleged underlying crime, i.e., outing a CIA agent? There is nothing in there. In fact, what he's telling us is, "Look, I've spent two years on this, and I have not located that crime; it doesn't exist."
From the October 28 edition of MSNBC's Scarborough Country:
BUCHANAN: Look, what happened today, Libby, they got him. It looks like they nailed him on perjury and obstruction of justice in an investigation of a crime Libby apparently didn't commit. Nobody outed Valerie Plame. There's no conspiracy. They didn't go after Karl Rove. The investigation is winding down. The investigator says, "Look, this is not going to be an investigation of the war."
From the October 28 broadcast of ABC Radio Networks' The Sean Hannity Show:
TOENSING: And Sean, it's a cover-up about something that's not a crime. I mean, Scooter Libby had said every single thing. Yeah, I learned it from uh, the CIA. I heard it from the CIA. I can't see that there would be a crime here. And in fact, Fitzgerald was asked that specific question.
HANNITY: Yes, he was.
TOENSING: And he dodged it, if you recall.
From the October 30 broadcast of ABC's This Week with George Stephanopolous:
CORNYN: The question was not only was there a crime committed in outing a covert CIA agent, which apparently there was not, but did someone cooperate and tell the truth to the grand jury? And so far, it appears the special counsel is satisfied that's been the case.