No Easy Answers

    Terse commentary on the July 11, 2007 Statement of David B. Rivkin Jr. regarding the Libby case.

    Uncharacteristic for him in an official venue, Rivkin is a bit "snarky." He says "Prosecutor Fitzgerald is undoubtedly an honorable man, and, by all accounts, does not have a partisan bone in his body." But later in the same paragraph, he says the appointment of a special prosecutor fosters "Inspector Javier like pursuit of the individual being investigated." Was Ken Starr Inspector Javier like too? How about Barrett, was he? (office appointed May 24, 1995 - terminated May 3, 2006; "to prosecute offenses arising from any false statements that Cisneros had made to the FBI during the background investigation leading to his appointment as HUD Secretary"; at a cost of ??? -- and noting the ONLY allegation of wrongdoing is false statements!)

    Mr. Rivkin was much more direct in his criticism while speaking to Chris Matthews on Hardball. Here is what he says about the "undoubtedly honorable man" ...

I think the mistake was made by the vindictive and out-of-control prosecutor who aligned the facts in such a way that the jury had no choice...

    As to the Libby case, Rivkin fronts numerous (and old) bogus rationales in his statement:

• The investigation was unique in its efforts to pierce reporter shield
  • The DOJ has undertaken numerous incursions into the press - BALCO (steroid use) for example
  • The Reporters Committee for Freedom of the Press conduced a study on subpoenas to the press: Agents of Discovery, which lists other subpoenas
• The DOJ appointed Fitzgerald, while knowing who leaked to Novak (not Libby)
  • I credit Rivkin for not blaming Fitzgerald for being appointed, but the notions "there can only be one leaker" and "only the Novak leaker counts" and "only the first leaker counts" are false in a leak investigation.
• Fitzgerald knew that Plame wasn't covert under the terms of the IIPA
  • Lying to investigators is serious even when the reason for investigating is later known to be unfounded, and an investigator who is powerless to punish lying is unable to conduct a reliable investigation.
  • Rivkin hits on an unresolved factual issue: was Plame covert? The CIA says she was, Libby says she wasn't. Whatever the resolution of that, it doesn't affect a determination as to Libby's veracity.
• The case amounts to the difference between reporter and Libby memories
  • The prosecution alleged that Libby neglected to tell investigators he knew Wilson's wife worked at the CIA, where the knowledge came from authoritative sources such as morning briefer, Cathie Martin passing a CIA message along, and Libby's personal contact with CIA (that is, sources other than reporters). The defense smoke-screen focuses attention solely on the discrepancy between Libby and reporter statements, and utterly fails to address the issue of whether or not Libby knew, independently of reporters, that Wilson's wife worked at the CIA.
• Fitzgerald sought reporter testimony to "manufacture" a crime where none existed (or reporters are the only source of incriminating evidence)
  • Suspicion on Libby came from sources other than Cooper, Miller and Russert
  • Testimony from Cooper, Miller and Russert could have corroborated Libby's statements to investigators, and resulted in exoneration rather than incrimination
  • The fact that Russert was a source of incriminating evidence results from Libby's claim of being told by Russert. Substitute any reporter's name there, in case Libby is innocently mistaken as to which reporter told him, and it still doesn't cure Libby's claim that he had no recollection of asking or hearing from the CIA, his morning briefer, etc.
• Libby's sentence was extreme compared with Sandy Berger's (i.e., Libby's deal should resemble Berger's, because both men were accused of compromising national security secrets, and in contrast with the [implied appropriate] discretion shown toward Berger, Fitzgerald did not show appropriate discretion by insisting on taking the Libby case to trial)
  • Berger plead guilty to a misdemeanor in a plea bargain deal, admitted taking the documents, and cooperated with the Department of Justice once he was "caught."
  • Libby maintains he has no recollection of hearing directly from the CIA, indirectly via Cathie Martin, or his morning briefer - he has not admitted to committing the felony crimes of perjury and obstruction of justice
• The jury was misled into rendering a guilty verdict by Fitzgerald's offering of a narrative that outing Plame was a vindictive act aimed at destroying Wilson for criticizing the administration justification for the Iraq war
  • As between prosecution and Libby, the "acted out of revenge" motive was first raised when Libby said "the prosecution will accuse a conspiracy and Libby of acting out of revenge." The pattern of claiming a certain accusation was forthcoming followed by complaining when the claim was rebutted, was repeated in discovery, motions in limine, and at the trial - including the "cloud over the VP Office" exchange in closing arguments.
• Because the case involves the Iraq war and allegations of revenge, the investigation, prosecution and trial are an unfair and politicized process
  • "It's only about sex"
  • If it is politicized, whose fault is that?

My view of the Libby case is probably best distilled in two short essays, Scooter Libby - Scamming the Sham and Covert or Not in Purple Blogistan.

posted by cboldt  # 7/13/2007 10:20:00 AM