Calling the prosecution of former vice presidential chief of staff I. Lewis “Scooter” Libby a “sideshow” in his June 10 column, The Washington Post's David Broder accused special counsel Patrick J. Fitzgerald of getting “caught up in the excitement of the case and pursu[ing] Libby relentlessly.” But contrary to Broder's suggestion, the crimes for which Libby was ultimately convicted did not all occur in the course of Fitzgerald's “relentless” pursuit of him. Libby took one of the actions for which he was convicted even before Fitzgerald took over the case, during the Department of Justice's initial investigation. Further, Fitzgerald's investigation and subsequent indictment of Libby were not a “sideshow,” but, rather, the direct result of Libby's alleged obstruction of the underlying investigation of the leak of former CIA operative Valerie Plame's identity. Moreover, in suggesting that Fitzgerald was overzealous in pursuing Libby, Broder compared Fitzgerald to “other special prosecutors before him,” but the comparison, particularly when considered in the context of the best known independent counsels, Kenneth Starr, falls apart in at least one key respect.

In his column, Broder wrote that conservatives are “complain[ing]” that Libby's "conviction on felony counts of lying and obstruction of justice was a byproduct of a 'leak' investigation that itself was unnecessary." Broder agreed: “I think they have a point. This whole controversy is a sideshow. ... Like other special prosecutors before him, Fitzgerald got caught up in the excitement of the case and pursued Libby relentlessly, well beyond the time that was reasonable.” Broder also stated, however, that “on the fundamental point” of Libby's culpability, U.S. District Judge Reggie B. Walton and Fitzgerald “have it right. Libby let his loyalty to his boss and to the administration cloud his judgment -- and perhaps his memory -- in denying that he was part of the effort to discredit [Plame and her husband, former Ambassador Joseph C. Wilson IV].”

But far from being “a byproduct” and “a sideshow” of the CIA leak investigation, Libby's conviction resulted from his having lied in the initial stages of the investigation about matters material to the investigation. As documented in Libby's indictment, the Justice Department investigation into the leak of Plame's identity began on or about September 26, 2003. Libby was specifically charged with -- and convicted of -- making false statements during his October 14, 2003, and November 26, 2003, interviews with the FBI.

Indeed, Libby's lie was about a central issue in the case: when and from whom he first learned Plame's CIA identity. While Broder claimed that Libby was charged for “denying to the FBI and the grand jury that he had discussed the Wilson case with reporters,” Libby, in fact, admitted in his FBI interviews and March 6, 2004, grand jury testimony that he had spoken to NBC News Washington bureau chief Tim Russert on July 10 or 11, 2003, and that they talked about Wilson. However, the jury found that Libby falsely claimed that, during that conversation, Russert had told him about Plame's CIA employment, rather than the other way around. From Libby's indictment:

3. On or about October 14 and November 26, 2003, in the District of Columbia, I. LEWIS LIBBY, also known as “SCOOTER LIBBY,” defendant herein, did knowingly and willfully make a materially false, fictitious, and fraudulent statement and representation in a matter within the jurisdiction of the Federal Bureau of Investigation, an agency within the executive branch of the United States, in that the defendant, in response to questions posed to him by agents of the Federal Bureau of Investigation, stated that:

During a conversation with Tim Russert of NBC News on July 10 or 11, 2003, Russert asked LIBBY if LIBBY was aware that Wilson's wife worked for the CIA. LIBBY responded to Russert that he did not know that, and Russert replied that all the reporters knew it. LIBBY was surprised by this statement because, while speaking with Russert, LIBBY did not recall that he previously had learned about Wilson's wife's employment from the Vice President.

4. As defendant LIBBY well knew when he made it, this statement was false in that when LIBBY spoke with Russert on or about July 10 or 11, 2003:

a. Russert did not ask LIBBY if LIBBY knew that Wilson's wife worked for the CIA, nor did he tell LIBBY that all the reporters knew it; and

b. At the time of this conversation, LIBBY was well aware that Wilson's wife worked at the CIA.

The jury found that Libby in fact learned of Plame's CIA employment from several (all non-journalist) sources before July 10, 2003, as detailed in the indictment, including from Vice President Dick Cheney “in or about early June 2003” and from several people he had spoken to about it in the days before his conversation with Russert.

Broder further claimed that Libby “was convicted on the testimony of reporters from NBC, the New York Times and Time magazine -- a further provocation to conservatives.” But Broder did not mention key witnesses against Libby: former White House press secretary Ari Fleischer and then-vice presidential assistant for public affairs Catherine Martin, who, along with several other government officials and journalists, said that Libby had either told them about, or learned from them, Plame's employment before his purported conversation with Russert, undermining Libby's claim of “surprise[]” at Russert's information. As a January 30 Post article reported: “Fleischer testified that his lunch with Libby ... took place on July 7, 2003, before Libby spoke with Russert.” At this lunch, the Post reported, Fleischer testified that “Libby had told him Wilson's wife held a position in the CIA's counterproliferation division, where most employees work in a covert capacity.” On January 26, the Post reported that “Martin recalled giving Cheney and Libby information from CIA spokesman William Harlow that Wilson was the person sent to Niger 'and his wife works for the CIA.' ” The article also noted that “Martin is the fourth witness from the administration to bolster the prosecution's claim that Libby had to be lying when he said he learned about Wilson's wife weeks later from NBC's Tim Russert.”

Moreover, unlike “other special prosecutors,” Fitzgerald did not seek -- and did not need to seek -- to expand his mandate beyond its original scope. By contrast, independent counsel Kenneth Starr requested that his mandate -- to cover the Whitewater matter -- be expanded to cover Clinton's alleged perjury in the Paula Jones sexual harassment lawsuit. From Starr's September 9, 1998, report to the House of Representatives:

On January 12, 1998, this Office received information that Monica Lewinsky was attempting to influence the testimony of one of the witnesses in the Jones litigation, and that Ms. Lewinsky herself was prepared to provide false information under oath in that lawsuit. The OIC was also informed that Ms. Lewinsky had spoken to the President and the President's close friend Vernon Jordan about being subpoenaed to testify in the Jones suit, and that Vernon Jordan and others were helping her find a job. The allegations with respect to Mr. Jordan and the job search were similar to ones already under review in the ongoing Whitewater investigation.(9)

After gathering preliminary evidence to test the information's reliability, the OIC presented the evidence to Attorney General Janet Reno. Based on her review of the information, the Attorney General determined that a further investigation by the Independent Counsel was required.

In addition, a February 23 Washington Post graphic documented that Fitzgerald's investigation spent far less than almost all other independent counsels.

From Broder's June 10 Washington Post column:

Special prosecutor Patrick Fitzgerald learned soon after taking the job that Richard Armitage, a high-ranking State Department official, and presidential assistant Karl Rove were the sources whom columnist Robert D. Novak used in identifying the role of CIA employee Valerie Plame Wilson in her husband's covert mission that ultimately challenged the Bush administration's rationale for war with Iraq.

Armitage made his admission immediately, and Rove -- who made repeated trips to the grand jury -- apparently told a version of his own story that persuaded Fitzgerald not to indict him.

Despite the absence of any underlying crime, Fitzgerald filed charges against Libby for denying to the FBI and the grand jury that he had discussed the Wilson case with reporters. Libby was convicted on the testimony of reporters from NBC, the New York Times and Time magazine -- a further provocation to conservatives.

I think they have a point. This whole controversy is a sideshow -- engineered partly by the publicity-seeking former ambassador Joseph Wilson and his wife and heightened by the hunger in parts of Washington to “get” Rove for something or other.

Like other special prosecutors before him, Fitzgerald got caught up in the excitement of the case and pursued Libby relentlessly, well beyond the time that was reasonable.