During the weekend before closing arguments in the perjury trial of former vice presidential chief of staff I. Lewis “Scooter” Libby, The Washington Post published two guest op-eds critical of the prosecution of Libby or of the conduct of the trial. Since a federal grand jury indicted Libby on October 28, 2005, the Post has published a total of four op-eds condemning the indictment and prosecution or suggesting that the trial is unfair. By contrast, since Libby was indicted, the Post has not published a single op-ed supporting the prosecution.

On February 17, the Post published a piece by National Review White House correspondent Byron York, who made the point that evidence regarding the status of former CIA operative Valerie Plame -- covert, classified, or neither -- has been excluded from the trial as irrelevant to whether Libby lied or obstructed justice, despite the fact that it was the leak of her identity that touched off the investigation. York concluded that "[t]he result is that jurors have heard constant suggestions that some sort of crime, committed by the administration and perhaps by Libby himself, lies at the bottom of the case. An air of accusation hangs over the courtroom. But the accusation can't be discussed." The second trial-related op-ed published by the Post since the start of the trial -- a February 18 Outlook section op-ed by Reagan administration Deputy Assistant Attorney General Victoria Toensing -- attacked the prosecution of Libby as irresponsible and laid out a set of “charges” against special counsel Patrick J. Fitzgerald, the CIA, Plame's husband and former Ambassador Joseph C. Wilson IV, former Attorney General John Ashcroft, and others. Several claims in her op-ed have been challenged as false (for example, here and here), and others have called the Post's publication of Toensing's piece an attempt at jury tampering.

A Media Matters for America survey of op-eds published in the Post that have mentioned Plame, Libby, or Fitzgerald since October 28, 2005, found that four have denounced or suggested unfairness in the prosecution and trial of Libby, including the pieces by Toensing and York in the past week. During the same period, no op-ed has appeared that was supportive of the prosecution. In addition, the Post has published two op-eds that took no position on the indictment or the trial. The Post also published 10 op-eds that commented on issues connected to, but ultimately separate from, the Libby trial.

Washington Post guest op-eds since October 28, 2005, that mention Plame, Libby, or Fitzgerald*:

(Against indictment) 10/29/2005, David B. Rivkin, Jr. and Lee A. Casey:

Special counsel Patrick Fitzgerald's indictment of I. Lewis “Scooter” Libby should be the final proof that the system of “special prosecutors” is bankrupt and ought to be abandoned.

Fitzgerald, a highly respected federal prosecutor from Chicago, was given the task of investigating whether Bush administration officials had violated the Intelligence Identities Protection Act by “leaking” the identity of CIA employee Valerie Plame.

It is clear that, at least by sometime in January 2004 -- and probably much earlier -- Fitzgerald knew this law had not been violated. Plame was not a “covert” agent but a bureaucrat working at CIA headquarters. Instead of closing shop, however, Fitzgerald sought an expansion of his mandate and has now charged offenses that grew entirely out of the investigation itself. In other words, there was no crime when the investigation started, only, allegedly, after it finished. Unfortunately, for special counsels, as under the code of the samurai, once the sword is drawn it must taste blood.

(Neutral on indictment) 10/30/2005, Lewis L. Gould, on the permanent campaign:

During a campaign, attacking the opponent's motives is part of the cut and thrust of politics, and so the substance of charges can be finessed with the claim that their author had worked for the opposition or had some other hidden agenda. In the case of Wilson, the attack on him fit with the principle of rapid retaliation so characteristic of a campaign. Less thought was apparently devoted to whether revealing the identity of his wife, a CIA employee, served the interests of wise and prudent governance. Whatever the outcome of the charges filed Friday against [Vice President Dick] Cheney aide I. Lewis “Scooter” Libby, the apparent blurring of the line between campaigning and governing is evident in the indictment returned by the federal grand jury.

(Neutral on indictment) 11/6/2005, Michael N. Levy, on the difficulties of obtaining a conviction on perjury charges:

In the coming months, the political battle over the meaning of the indictment of I. Lewis “Scooter” Libby, former chief of staff to Vice President Cheney, will be waged by Democrats and Republicans in the media and in the halls of Congress. The legal battle, however, will be waged by prosecutors and defense attorneys just three blocks west of the Capitol, at the E. Barrett Prettyman federal courthouse -- and the rules of engagement will be very different.

Only Special Counsel Patrick J. Fitzgerald's team knows the precise nature and scope of the evidence, but judging from the indictment, convicting Libby in a court of law is going to prove far more difficult than convicting the Bush White House in the court of public opinion.

That has a lot to do with the crimes alleged in the Libby indictment: perjury, making false statements and obstruction of justice. True, as any white-collar criminal defense attorney will tell you, it is often easier to convict someone of lying to investigators than it is to convict a person of committing the offenses that prompted the investigation in the first place. That's because there aren't many technicalities for defense lawyers to use when it comes to the relatively straightforward statutes about making false statements under oath. Indeed, that presumably explains why Fitzgerald, like those who prosecuted Martha Stewart, investment banker Frank Quattrone and the accounting firm Arthur Andersen, chose to pursue an indictment only on charges related to obstructing the investigation, not on the underlying offense. As is often the case, it's not the crime, it's the coverup.

(Tangential) 11/6/2005, Russell L. Riley, on diminishing White House paper trails and the increasing importance of oral history.

(Tangential) 11/27/2005, Douglas MacKinnon, on the direction of the Republican Party, mentions the Libby charges as one of many “damaging stories” that have caused the GOP to have a “perception problem.”

(Tangential) 1/8/2006, Paul J. Williams (satire):

Valerie Plame: “I would just like to say to everyone that I'm very sorry I ever worked for the CIA. I realize that this mess is my fault -- I never wanted to be a '-gate.' I should have just told people I was undercover. To anyone who may have leaked my name and hurt my career, I want to say that I forgive you, and that I take full responsibility for choosing that career in the first place.”

(Tangential) 3/5/2006, Alan Abramowitz, identifies Plame scandal as dragging down Bush's poll numbers.

(Tangential) 3/12/2006, David J. Rothkopf, “The Dick Cheney era of foreign policy is over. ... Third, Libby's legal woes over his alleged disclosure of a CIA operative's identity has been a huge distraction [for Cheney]."

(Tangential) 4/10/2006, Richard Sauber (Matthew Cooper's attorney), on source confidentiality and the issue of releases.

(Tangential) 4/23/2006, Ana Marie Cox, on Scott McClellan's attempts to keep the press at bay regarding the Plame story.

(Tangential) 6/18/2006, Joe Lauria, discussing his “role” in writer Jason Leopold's incorrect “scoop” that White House senior adviser Karl Rove had been indicted.

(Tangential) 6/29/2006, former Solicitor General Theodore B. Olsen, arguing for a federal reporter's shield law.

(Tangential) 7/9/2006, several journalism school deans, arguing that news organizations should err on the side of publishing, rather than withholding secrets. The piece asserts that sometimes the choice to not publish is clear: “For instance, there was no justification for columnist Robert D. Novak to have unmasked Valerie Plame as a covert CIA officer.”

(Against indictment) 7/20/2006, Bruce W. Sanford and Bruce D. Brown, “The Futility of Chasing Leaks”:

Almost three years to the day after he published his now-infamous “Mission to Niger” column in which he described Valerie Plame as a CIA “operative,” Robert D. Novak revealed last week what he had told special prosecutor Patrick Fitzgerald about the sourcing for his article. By supplying corroboration of what has long been suspected -- that Fitzgerald knew almost immediately and on his own who Novak's three sources were -- Novak has further confirmed another truth about leak investigations: They are a huge, dangerous waste of time.

It took three years of numbing legal process, including bruising battles in the federal courts that have left the relationships between journalists and their sources more vulnerable, to get us here. And where exactly are we?

The criminal investigation into who in the government disclosed Plame's identity has essentially rendered the mission to uncover the “Mission to Niger” a mission to nowhere. A reporter was jailed for almost 90 days, but Novak's principal source, whose identity he still protects under the terms of their agreement, has not and will not be indicted under the federal law criminalizing the purposeful disclosure of truly covert agents, because the stringent requirements of that statute could not possibly be met.

But there's more futility -- and fatigue -- to come. The futility will be evident in the acquittal next year of Vice President Cheney's former chief of staff, Lewis “Scooter” Libby, on charges of perjury and obstruction of justice. The acquittal will be yet another symbol of the misuse of prosecutorial time that is the big problem with leak investigations.

(Tangential) 2/14/2007, former Undersecretary of Defense for Policy Douglas J. Feith, mentions Libby in the course of defending his work at the Pentagon.

(Unfair trial) 2/17/2007, York:

It is The Thing That Cannot Be Spoken at the Libby trial.

From the first day, [U.S. District Court judge Reggie] Walton has said that jurors will not be allowed to know, or even ask, about the status -- covert, classified or otherwise -- of Valerie Plame Wilson, the woman at the heart of the CIA leak case. “You must not consider these matters in your deliberations or speculate or guess about them,” he told jurors in his opening instructions.

[...]

Walton's reasoning is this: The trial is about whether Libby lied to the grand jury in the CIA leak investigation. Prosecutor Patrick Fitzgerald never charged anyone with leaking the identity of a covert or classified agent. Libby isn't on trial for that, so jurors -- and judge -- don't need to know.

The problem is, the entire case stems from accusations that the Bush White House illegally leaked Mrs. Wilson's identity in an effort to get back at her husband, former ambassador Joseph Wilson, for his high-profile criticism of the administration's case for war in Iraq. That's why the CIA leak investigation began, and it's why Libby appeared before a grand jury, leading to the perjury charges against him. It's what the CIA leak case is about. Yet Walton has told jurors to put it out of their minds.

[...]

Then there was the argument Fitzgerald had with defense lawyer Ted Wells over Fitzgerald's theory that Libby lied because he was afraid for his job after President Bush announced that anyone who leaked classified information about a CIA agent would be fired.

Wait a minute, said Wells. “The jury has been instructed that the issue of whether it was classified or whether she was covert will not be presented in this case.”

“I'm not going to tell the jury the information was classified,” Fitzgerald responded. “I will tell the jury that there was an investigation into whether the law was violated.”

Of course, we all knew -- and the jury knew too, since it was discussed in Libby's grand jury testimony -- that the law to which Fitzgerald referred was the one barring disclosure of a covert agent's identity.

Outside the courtroom, Fitzgerald has said that Mrs. Wilson's status was in fact classified. The Libby indictment says that, too. But the judge has not allowed the jury to see the indictment, either.

The result is that jurors have heard constant suggestions that some sort of crime, committed by the administration and perhaps by Libby himself, lies at the bottom of the case. An air of accusation hangs over the courtroom.

But the accusation can't be discussed.

Maybe in the end, jurors will be able to make sense of it all. But it's more likely that even after the trial ends, they'll still have one question they want answered.

(Against indictment) 2/19/2007, Toensing:

Special Counsel Patrick J. Fitzgerald charged Vice President Cheney's former chief of staff with perjury on the theory that Libby had a nefarious reason for lying to a grand jury about what he told reporters regarding CIA officer Plame: He was trying to cover up a White House conspiracy to retaliate against Plame's husband, Joseph C. Wilson IV. Wilson had infuriated Vice President Cheney by accusing the Bush administration of lying about intelligence in the run-up to the Iraq war.

Fitzgerald apparently concluded that a purported cover-up was sufficient motive for Libby to trim his recollections in a criminal way. So when Libby's testimony differed from that of others, it was Libby who got indicted.

There's a reason why responsible prosecutors don't bring perjury cases on mere “he said, he said” evidence. Without an underlying crime or tangible evidence of obstruction (think Martha Stewart trying to destroy phone logs), the trial becomes a mishmash of faulty memories in which witnesses can seem as guilty as the defendant. Any prosecutor knows that memories differ, even vividly, and each party can be convinced that his or her version is the truthful one.

*As identified by the following search of the Nexis database: “pub(Washington Post) and section(Editorial or Op-Ed or Outlook or Opinion) and (Plame or Libby or (Pat! w/2 Fitz!)) and date aft 10/27/2005”