WASHINGTON, D.C. — Special Counsel Patrick Fitzgerald's first charges in
the White House leak case don't get to the heart of his two-year probe:
the leak.
CHARLES DHARAPAK / AP
Special Prosecutor Patrick Fitzgerald speaks during a press
conference regarding the CIA leak criminal investigation, Friday
at the Justice Department in Washington, D.C.
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The indictment of vice presidential adviser I. Lewis "Scooter" Libby Jr.
is built on charges of obstruction of justice, making false statements
and perjury - and it will rest primarily on testimony from a handful of
Washington reporters.
"In some ways it seems less satisfying," said Michael Cahill, a Brooklyn
Law School professor, adding that false statements might have impeded
the probe into whether top Bush administration officials knowingly
revealed the identity of CIA agent Valerie Plame.
Steven Reich, a New York attorney and former senior associate counsel to
President Bill Clinton, said Fitzgerald has his reasons for not charging
anyone with the leak. "Either he thought there was not a crime, or he
thought he couldn't prove it. No one will know which but him," he said.
It may have been smart strategy, however, for the prosecutor to go with
safer charges, considering the stakes in investigating the highest
levels of the White House.
"Perjury and false statement can be remarkably easy to prove," said
Andrew D. Levy, a criminal defense lawyer in Baltimore who teaches at
the University of Maryland. "So often it's the cover-up that ensnares
people."
Levy said the indictment is "very narrow, very focused: it follows, very
provable."
The indictment alleges that Libby lied about his conversations with
reporters. Witnesses at the trial will likely include Tim Russert of NBC
News, Matt Cooper of Time Magazine and New York Times
reporter Judith Miller, all of whom testified before the grand jury that
returned Friday's indictment.
Erwin Chemerinsky, a Duke Law School professor, said it is not unusual
for criminal probes to change their focus.
"What brought down the Nixon administration wasn't the burglary itself,
but the cover-up of it," Chemerinsky said, adding that what caused
Clinton's impeachment "wasn't that he had an affair with Monica Lewinsky
but he lied about it."
The charges in the Friday indictment are similar to the ones used in
Martha Stewart's criminal case. She was convicted last year for
obstructing justice and lying about why she sold ImClone Systems stock,
just before a negative government decision on an ImClone drug. She
served a five-month prison term followed by home confinement.
"Very rarely do obstruction of justice cases and perjury cases come as
neatly tied as Martha Stewart's ... it is by no means a slam dunk," said
Viet Dinh, a law professor at Georgetown University and former Justice
Department lawyer in the Bush administration.
The prosecutor must prove beyond a reasonable doubt that Libby
"knowingly and willfully" made false statements and lied to the grand
jury. He could claim that any misstatements were not intentional.
"These are sophisticated people," Mark A. Godsey, a University of
Cincinnati law professor, said of the top White House advisers. "Playing
dumb, the jury might not buy that. At the same time they're extremely
busy. Are they in the loop or not in the loop?"
Libby, a Columbia University law school graduate, has not been in
trouble before.
"Although it always helps a criminal defendant not to have a criminal
record, a D.C. jury will be open to the idea that politicians are
willing to lie," said Gabriel J. Chin, a criminal law professor at the
University of Arizona.
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