In reporting that “some lawyers involved in the case” say that CIA leak investigation special counsel Patrick J. Fitzgerald faces a “a difficult balancing test” in determining whether to bring perjury or obstruction of justice charges against I. Lewis “Scooter” Libby, Vice President Dick Cheney's chief of staff, The Los Angeles Times omitted mention of a discrepancy between Libby's grand jury testimony and documentary evidence obtained in the investigation that was reported by The New York Times three days earlier. That discrepancy now constitutes the basis for perjury and false statement charges against Libby. Libby was a suspect in the investigation into whether senior White House officials illegally outed CIA operative Valerie Plame after her husband, former ambassador Joseph C. Wilson IV, accused the Bush administration of twisting intelligence in the buildup to the Iraq war.

In the October 28 article, Los Angeles Times staff writer Richard B. Schmitt wrote that the investigation into wrongdoing by Libby “could turn largely on the testimony of New York Times reporter Judith Miller,” whose “truthfulness” has been questioned by her editors and who “cannot recall key portions” of her conversations with Libby. But Schmitt did not report an apparent falsehood in Libby's own grand jury testimony that is unrelated to Miller: Libby testified that he learned of Plame from reporters, but evidence suggests he actually learned of Plame from Cheney.

In his grand jury testimony, Libby reportedly named Tim Russert, host of NBC's Meet the Press, as the reporter who first informed him that Plame worked for the CIA. But evidence contradicting Libby's account has been widely available. Russert denied informing Libby of Plame's identity, as the Los Angeles Times (and Schmitt himself) reported on August 10, 2004. Russert's account was confirmed by some of Libby's personal notes obtained in the investigation, which demonstrate that Libby actually learned of Plame from Cheney, according to an October 25 New York Times report.

In contrast with the Los Angeles Times article, The New York Times reported on October 28:

In Mr. Libby's case, Mr. Fitzgerald has focused on his statements about how he first learned of Ms. Wilson's [Plame] identity. Early in the investigation, Mr. Libby turned over notes of a meeting with Mr. Cheney in June 2003 that indicated the vice president had told him about Ms. Wilson, the lawyers said.

But Mr. Libby told the grand jury that he learned of Ms. Wilson from reporters, lawyers involved in the case said. Reporters who are known to have talked to Mr. Libby have said that they did not provide him the name, could not recall what had been said or had discussed unrelated subjects.

Indeed, the October 28 indictment brought against Libby by Fitzgerald -- issued after the Los Angeles Times article ran -- confirms that each of two counts of perjury and false statement against Libby are wholly unrelated to Miller's testimony. Those charges stem from Libby's own statements about conversations he had with Russert and Time magazine reporter Matthew Cooper. According to the indictment, Libby falsely stated to FBI investigators that “Russert asked Libby if Libby knew that Wilson's wife worked for the CIA,” and Libby was “surprised to hear” that was true. The indictment charges that Libby later repeated that account of the conversation in his grand jury testimony (which resulted in a perjury charge). Similarly, Fitzgerald charged Libby with a second count of false statement for informing FBI investigators that he “told Cooper that reporters were telling the administration that Wilson's wife worked for the CIA, but Libby did not know if this was true”; Fitzgerald charged Libby with a second count of perjury for repeating that account in his grand jury testimony.

From the October 28 article in the Los Angeles Times:

Fitzgerald is investigating whether Plame's identity was leaked as part of an effort to discredit her husband, Joseph C. Wilson IV, a former ambassador who had accused the Bush administration of twisting the intelligence it used to justify the invasion of Iraq.

Fitzgerald is also said to be concerned about disparities between some of the testimony of Rove and Libby and that of some journalists the men spoke with. That could lead to perjury or obstruction of justice charges.

Despite speculation about possible indictments, some lawyers involved in the case said that Fitzgerald faced a difficult balancing test in deciding whether to bring charges.

Any case against Libby, for example, could turn largely on the testimony of New York Times reporter Judith Miller, who recently told Fitzgerald about three conversations she had with Libby in the days before Plame was identified publicly.

But Miller has said that she cannot recall key portions of their conversations, including whether Libby identified Plame to her by name. Miller's editors at the Times have recently questioned her truthfulness in reporting to them conversations she had with sources in the leak case. Those concerns could be used to attack her credibility as a witness if Libby were tried.