A November 17 USA Today article by staff writer Mark Memmott offered the views of three attorneys -- one of them the attorney for I. Lewis "Scooter" Libby, Vice President Dick Cheney's former chief of staff -- on how Washington Post assistant managing editor Bob Woodward's recent disclosure regarding the alleged outing of CIA operative Valerie Plame can be used to undermine the case against Libby of charges related to the Plame case. The article excluded any differing views, and it made no mention of the view, articulated in other news reports, that the disclosure has no bearing on the indictment obtained against Libby, in which he is charged with perjury, obstruction, and making false statements.
Woodward claimed that an unnamed senior White House official informed him in June 2003 that Plame, former ambassador Joseph C. Wilson IV's wife, worked for the CIA. Libby's attorneys have argued that because Libby was indicted for claiming that he learned of Plame's identity from NBC host Tim Russert, which Russert denied, it is clear from Woodward's revelation that he merely confused Woodward and Russert, and therefore his misstatement was not a deliberate or material falsehood but, rather, a simple mistake. The article simply repeated this argument without noting any contrary legal opinions or what numerous news reports have noted -- that the indictment alleges that Libby learned Plame's identity not from a reporter but from his former boss, Cheney.
Two of the three attorneys quoted in the article are career prosecutors, while the third is one of Libby's attorneys, Ted Wells, whom the article described as leaving "little doubt that he considers Woodward's story to be helpful." One former prosecutor Memmott quoted -- Scott Fredericksen, former associate counsel in the Office of Independent Counsel during the Reagan administration -- said that Woodward's account could "bolster Libby's argument that he wasn't deliberately trying to mislead investigators or the grand jury when he testified that he thought he learned about Plame from NBC's Tim Russert." According to Fredericksen, Woodward's revelation helps Libby by allowing him to assert that he "was mistaken about which reporter he heard it [Plame's indentity] from, because so many (journalists) knew about her." The other prosecutor, former assistant U.S. Attorney Aitan D. Goelman, recommended to Libby's defense team the "talking point" that they could potentially discredit the investigation by stressing that special counsel Patrick J. Fitzgerald "had two years to investigate, he brings an indictment and he doesn't know one of the underlying facts."
But Memmott omitted the view of other legal experts who said that Woodward's account likely has no bearing on the accusations against Libby. For example, in a November 17 report, The New York Times cited University of Richmond law school dean Rodney A. Smolla's assessment that Woodward's revelation is "neutral as to Libby":
[S]ome legal experts were skeptical that Mr. Woodward's disclosure would significantly alter the case against Mr. Libby.
"I don't think that in a technical legal sense it matters," said Rodney A. Smolla, dean of the law school at the University of Richmond and a specialist in media law. "It's neutral as to Libby because he has been indicted for perjury and for lying, and nothing in his account seems to sanitize those lies if in fact they turn out to be lies."
As is clear from the indictment, the charges are based not only on the apparently literal falsehood in Libby's claim that he learned of Plame's identity from Russert but on his alleged efforts to deceive the grand jury as to who first told him about Plame - it was Cheney, according to the indictment, as The New York Times -- but not USA Today -- noted.
Citing Libby's account of his conversation with Russert, the indictment alleged that Libby "did knowingly and corruptly endeavor to influence, obstruct and impede the due administration of justice, namely proceedings before Grand Jury 03-3, by misleading and deceiving the grand jury as to when, and the manner and means by which, he acquired and subsequently disclosed to the media information concerning the employment of Valerie [Plame] Wilson by the CIA."
From the November 17 USA Today article headlined "Reporter's account could help Libby's defense":
Libby's lawyers could also use Woodward's account to bolster Libby's argument that he wasn't deliberately trying to mislead investigators or the grand jury when he testified that he thought he learned about Plame from NBC's Tim Russert in July 2003.
"They'll argue that it's perfectly understandable if he was mistaken about which reporter he heard it from, because so many (journalists) knew about her," said Scott Fredericksen, a partner at the law firm Foley & Lardner and a former associate counsel in the federal Office of Independent Counsel.
Libby resigned as Vice President Cheney's chief of staff Oct. 28, the day a grand jury indicted him on five counts of lying to investigators and the grand jury. The indictment charges that Libby lied when he testified that he learned about Plame from Russert. Fitzgerald said Libby was trying to cover up the fact that he had instead told at least two journalists about her.