NATIONAL JOURNAL: Cheney 'Authorized' Libby to Leak Classified Information (02/09/2006)
By Murray Waas, National Journal
© National Journal Group Inc.
Thursday, Feb. 9, 2006
Vice President Dick Cheney's former chief of staff, I. Lewis (Scooter) Libby, testified to a federal grand jury that he had been "authorized" by Cheney and other White House "superiors" in the summer of 2003 to disclose classified information to journalists to defend the Bush administration's use of prewar intelligence in making the case to go to war with Iraq, according to attorneys familiar with the matter, and to court records.
Libby specifically claimed that in one instance he had been authorized to divulge portions of a then-still highly classified National Intelligence Estimate regarding Saddam Hussein's purported efforts to develop nuclear weapons, according to correspondence recently filed in federal court by special prosecutor Patrick J. Fitzgerald.
Beyond what was stated in the court paper, say people with firsthand knowledge of the matter, Libby also indicated what he will offer as a broad defense during his upcoming criminal trial: that Vice President Cheney and other senior Bush administration officials had earlier encouraged and authorized him to share classified information with journalists to build public support for going to war. Later, after the war began in 2003, Cheney authorized Libby to release additional classified information, including details of the NIE, to defend the administration's use of prewar intelligence in making the case for war.
Previous coverage of the CIA leak investigation from Murray Waas
Libby testified to the grand jury that he had been authorized to share parts of the NIE with journalists in the summer of 2003 as part of an effort to rebut charges then being made by former U.S. Ambassador Joseph Wilson that the Bush administration had misrepresented intelligence information to make a public case for war.
Wilson had been sent on a CIA-sponsored mission to investigate allegations that the African nation of Niger had sold uranium to Iraq to develop a nuclear weapon. Despite the fact that Wilson reported back that the information was most likely baseless, it was still used in the President's 2003 State of the Union speech to make the case for war.
But besides sharing details of the NIE with reporters during the effort to rebut Wilson, Libby is also accused of telling journalists that Wilson's wife, Valerie Plame, had worked for the CIA. Libby and other Bush administration officials believed that if Plame played a role in the selection of her husband for the Niger mission, that fact might discredit him.
A federal grand jury indicted Libby on October 28, 2005, on five counts of making false statements, perjury, and obstruction of justice, alleging that he concealed his role in leaking information about Plame to the media. He resigned his positions as chief of staff and national security adviser to Cheney the same day. Libby has never claimed that Cheney encouraged him to disclose information about Plame to the media.
In a January 23 letter, related to discovery issues for Libby's upcoming trial, Fitzgerald wrote to Libby's attorneys: "Mr. Libby testified in the grand jury that he had contact with reporters in which he disclosed the content of the National Intelligence Estimate ("NIE") … in the course of his interaction with reporters in June and July 2003.… We also note that it is our understanding that Mr. Libby testified that he was authorized to disclose information about the NIE to the press by his superiors."
Although it is not known if Cheney had told the special prosecutor that he had authorized Libby to leak classified information to reporters, Dan Richman, a professor of law at Fordham University and a former federal prosecutor for the Southern District of New York, said, "One certainly would not expect Libby, as part of his defense, to claim some sort of clear authorization from Cheney where none existed, because that would clearly risk the government's calling Cheney to rebut that claim."
The public correspondence does not mention the identities of the "superiors" who authorized the leaking of the classified information, but people with firsthand knowledge of the matter identified one of them as Cheney. Libby also testified that he worked closely with then-Deputy National Security Adviser Stephen Hadley and White House Deputy Chief of Staff Karl Rove in deciding what information to leak to the press to build public support for the war, and later, postwar, to defend the administration's use of prewar intelligence.
In the correspondence, Fitzgerald also asserted that Libby testified that he had met with then-New York Times reporter Judith Miller on July 8, 2003, with the "purpose" of intending "to transmit information" to her "concerning the NIE."
That particular meeting has been key to Fitzgerald's investigation because the special prosecutor alleges that Libby lied both to the FBI and to his federal grand jury by saying that he had not discussed Plame with Miller on that date, when in fact he did tell her of Plame's work for the CIA.
In an account of her grand jury testimony, Miller has written that Libby discussed the NIE with her: "Mr. Libby also cited a National Intelligence Estimate on Iraq, produced by American intelligence agencies in October 2002 … which he said had firmly concluded that Iraq was seeking uranium." Portions of the NIE were later declassified, but the material in it related to Niger was still classified at the time.
Libby, through a spokesperson, declined to comment, and the vice president, through a spokesperson, also declined to comment for this story.
The new disclosure that Libby has claimed that the vice president and others in the White House had authorized him to release information to make the case to go to war, and later to defend the administration's use of prewar intelligence, is significant for several reasons. First, it significantly adds to a mounting body of information that Cheney played a central and personal role in directing efforts to counter claims by Wilson and other administration critics that the Bush administration had misused intelligence information to go to war with Iraq.
Second, it raises additional questions about Libby's motives in concealing his role in leaking Plame's name to the press, if he was in fact more broadly authorized by Cheney and others to rebut former Ambassador Wilson's charges. The federal grand jury indictment of Libby alleges that he had lied to the FBI and the federal grand jury by claiming that when he provided information to reporters about Plame's CIA employment, he was only passing along what he understood to be unverified gossip that he had heard from other journalists.
Instead, the indictment charges that Libby had in fact learned of Plame's CIA status from at least four government officials, Cheney among them, and from classified documents. Indeed, much of Libby's earliest and most detailed information regarding Plame's CIA employment came directly from the vice president, according to information in Libby's grand jury indictment. "On or about June 12, 2003," the indictment stated, "Libby was advised by the Vice President of the United States that Wilson's wife worked at the Central Intelligence Agency in the Counterproliferation Division."
Libby testified that Cheney told him about Plame "in an off sort of, curiosity sort of, fashion," according to other information recently unsealed in federal court. Not long after that date, Libby, White House Deputy Chief of Staff Karl Rove, and a third administration official began to tell reporters that Plame had worked at the CIA, and that she had been responsible for sending her husband to Niger.
Finally, the new information indicates that Libby is likely to pursue a defense during his trial that he was broadly "authorized" by Cheney and other "superiors" to defend the Bush administration in making the case to go to war. Libby does not, however, appear to be claiming that he was acting specifically on Cheney's behalf in disclosing information about Plame to the press.
Libby's legal strategy in asserting that Cheney and other Bush administration officials authorized activities related to the underlying allegations of criminal conduct leveled against him, without approving of or encouraging him to engage in the specific misconduct, is reminiscent of the defense strategy used by Oliver North, who was a National Security Council official in the Reagan administration.
North, a Marine lieutenant colonel assigned to the National Security Council, implemented the Reagan administration's efforts to covertly send arms to Iran in exchange for the release of American hostages held in the Middle East, and to covertly fund and provide military assistance to the Nicaraguan Contras at a time when federal law prohibited such activities. Later, it was discovered that North and other Reagan administration officials had diverted funds they had received from the Iranian arms sales to covertly fund the Contras.
If Libby's defense adopts strategies used by North, it might be in part because the strategies largely worked for North and in part because Libby's defense team has quietly retained John D. Cline, who was a defense attorney for North. Cline, a San-Francisco partner at the Jones Day law firm, has specialized in the use of classified information in defending clients charged with wrongdoing in national security cases.
Among his detractors, Cline is what is known as a "graymail" specialist-an attorney who, critics say, purposely makes onerous demands on the federal government to disclose classified information in the course of defending his clients, in an effort to force the government to dismiss the charges. Although Cline declined to be interviewed for this story, he has said that the use of classified information is necessary in assuring that defendants are accorded due process and receive fair trials.
In the Libby case, Cline has frustrated prosecutors by demanding, as part of pretrial discovery, more than 10 months of the President's Daily Brief, or PDBs, the president's morning intelligence briefing. The reports are among the most highly classified documents in government, not only because they often contain sensitive intelligence and methods, but also because they indicate what the president and policy makers consider to be the most pressing national security threats. In the past, the Bush administration has defied bipartisan requests from the Intelligence committees in Congress to turn over PDBs for review.
After Cline demanded the PDBs, Fitzgerald wrote to him on January 9 that the prosecutor's office has only "received a very discrete amount of material relating to PDBs" and "never requested copies of PDBs" themselves, in part because "they are extraordinarily sensitive documents which are usually highly classified." Moreover, Fitzgerald wrote, only a relatively small number of PDB pages included reference to Wilson's trip to Niger.
But Cline has insisted that it is imperative for his client's defense to be able to review the PDBs because part of Libby's defense is that he may have had a faulty memory regarding conversations he had with government officials and reporters regarding Plame, in that he had so many other pressing issues to consider every day as chief of staff and national security adviser to the vice president.
In a January 31 court filing, attorneys for Libby argued: "Mr. Libby will show that, in the constant rush of more pressing matters, any errors he made in FBI interviews or grand jury testimony, months after the conversations, were the result of confusion, mistake, faulty memory, rather than a willful intent to deceive."
In the North case, the Iran-Contra independent counsel, Lawrence Walsh, was forced to dismiss many of the central charges against North, including the most serious ones-that North defrauded taxpayers by diverting proceeds from arms sales to Iran to finance the Nicaraguan Contras-because intelligence agencies and the Reagan administration refused to declassify documents necessary for a trial on those charges.
Walsh and many of his deputies believed that the Reagan Justice Department refused to declassify documents necessary to try North because officials were personally sympathetic to him. A North trial would also have politically embarrassed the Reagan administration, and a North conviction might have led to charges against higher officials.
In court filings, Walsh said that much of what intelligence agencies and the Reagan administration had refused to declassify had long before been published in the media or made public in some other way.
"It was a backdoor way of shutting us down," said one former Iran-Contra prosecutor, who spoke only on the condition that his name not be used, because his current position as a private attorney requires frequent dealings with attorneys who were on the other side of the North case at the time. "It was a cover-up by means of an administrative action, and it was an effective cover-up at that."
The former prosecutor added: "The intelligence agencies do not declassify things on the pretext that they are protecting state secrets, but the truth is that we were investigating and prosecuting their own. The same was true for the Reagan administration. Cline was particularly adept at working the system."
Is it possible that a prosecution of Libby might be impeded or even derailed entirely by the refusal of the Bush White House or its Justice Department to declassify information that might be necessary to try Libby? "Under the current statute, it may well be the attorney general's call-or whomever he designates-to ultimately decide what should be declassified, and what might not be, in the Libby case," said Michael Bromwich, a former associate Iran-Contra independent counsel and a former Justice Department inspector general.
William Treanor, the dean of Fordham University's Law School, and also a former associate Iran-contra special counsel, said that it is less likely that the Bush administration would challenge Fitzgerald as former administrations did with special prosecutors. Walsh, dealing with the Reagan and elder Bush administrations, and Whitewater independent counsel Kenneth Starr, dealing with the Clinton administration, often alleged that political appointees in the Justice Department worked purposely to undermine their investigations.
"Walsh and Starr were not appointed by an attorney general," Treanor said, noting that Walsh, Starr, and earlier special prosecutors had been appointed by a three-judge federal panel instead of by the Justice Department. Currently, he pointed out, special prosecutors are appointed by the attorney general or their designate.
"With Walsh or Starr, the president and his supporters could more easily argue that a prosecutor was overzealous or irresponsible, because there had been a three-judge panel that appointed him," Treanor said. "With Fitzgerald, you have a prosecutor who was appointed by the deputy attorney general [at the direction of the attorney general]. The administration almost has to stand behind him because this is someone they selected themselves. It is harder to criticize someone you yourself put into play."
There are other reasons why it might prove difficult to undercut Fitzgerald, including outstanding questions about the role that Cheney and others in the Bush administration played in the effort to discredit Wilson, and the fact that Cheney is still the point man in defending the White House's use of prewar intelligence on Iraq.
And the new disclosure, that Libby is alleging that Cheney and other Bush administration officials "authorized" him to disclose classified information as a means to counter charges that the administration misused prewar intelligence, might also make it difficult for this administration to refuse to declassify information for Libby's trial.
But a Libby defense strategy asserting that he released classified information or took other actions as broadly authorized by Cheney might have other advantages, if the North case is any guide. At North's trial, the counts on which the jury acquitted him tended to be those involving actions that appeared to be authorized by superiors. He was found guilty of three felonies on which the evidence indicated that he was acting on his own initiative or for his own financial benefit.
"It was a memorable and powerful moment when North told the jury that he was 'a pawn in a chess game played by giants,'" Treanor said.
The claims by North that his activities had been broadly authorized by higher-ups, including even the president, also worked to his advantage when he was sentenced. Despite the fact that North had been convicted of three felonies and that Iran-Contra prosecutors argued before sentencing that letting North off with "only a slap on the wrist … would send exactly the wrong message … [only] 15 years after Watergate," he was sentenced to only probation, a fine, and community service.
North's trial judge, U.S. District Court Judge Gerhard Gesell, took note that the jury had acquitted North of criminal charges mainly where it appeared that his conduct might have been authorized by higher authorities: "Observing that many others involved in the events were escaping without censure or with prosecutorial promises of leniency or immunities, [the jury] used their common sense. And they gave you the benefit of a reasonable doubt."
Explaining his own leniency in sentencing the former NSC aide, Gesell told North: "I do not believe you were a leader at all, but really a low-ranking subordinate to carry out initiatives of a few cynical superiors. You came to be a point man in a very complex power play developed by higher-ups."
Later, North's convictions were overturned on appeal because of concerns that some of the evidence used against him during his trial might have been derived from his testimony before the House-Senate Iran-Contra investigating committee. North had been given immunity for that testimony.
But most outside legal observers say that Libby, because he was himself such a high-ranking official, will most likely face a much more difficult time than North did in arguing that, in some of his activities, he was just carrying out orders from Cheney or other senior White House officials.
"A defendant can make a claim that he is just a victim of Washington politics or doing the bidding for someone else," said Richman, the former prosecutor, "But there may be limits to a jury's sympathy when that defendant himself was so high-ranking. Given Libby's position in the White House, the jury is less likely to view him as a sacrificial lamb than as a sacrificial ram."
© National Journal Group Inc.
Thursday, Feb. 9, 2006
Vice President Dick Cheney's former chief of staff, I. Lewis (Scooter) Libby, testified to a federal grand jury that he had been "authorized" by Cheney and other White House "superiors" in the summer of 2003 to disclose classified information to journalists to defend the Bush administration's use of prewar intelligence in making the case to go to war with Iraq, according to attorneys familiar with the matter, and to court records.
Libby specifically claimed that in one instance he had been authorized to divulge portions of a then-still highly classified National Intelligence Estimate regarding Saddam Hussein's purported efforts to develop nuclear weapons, according to correspondence recently filed in federal court by special prosecutor Patrick J. Fitzgerald.
Beyond what was stated in the court paper, say people with firsthand knowledge of the matter, Libby also indicated what he will offer as a broad defense during his upcoming criminal trial: that Vice President Cheney and other senior Bush administration officials had earlier encouraged and authorized him to share classified information with journalists to build public support for going to war. Later, after the war began in 2003, Cheney authorized Libby to release additional classified information, including details of the NIE, to defend the administration's use of prewar intelligence in making the case for war.
Previous coverage of the CIA leak investigation from Murray Waas
Libby testified to the grand jury that he had been authorized to share parts of the NIE with journalists in the summer of 2003 as part of an effort to rebut charges then being made by former U.S. Ambassador Joseph Wilson that the Bush administration had misrepresented intelligence information to make a public case for war.
Wilson had been sent on a CIA-sponsored mission to investigate allegations that the African nation of Niger had sold uranium to Iraq to develop a nuclear weapon. Despite the fact that Wilson reported back that the information was most likely baseless, it was still used in the President's 2003 State of the Union speech to make the case for war.
But besides sharing details of the NIE with reporters during the effort to rebut Wilson, Libby is also accused of telling journalists that Wilson's wife, Valerie Plame, had worked for the CIA. Libby and other Bush administration officials believed that if Plame played a role in the selection of her husband for the Niger mission, that fact might discredit him.
A federal grand jury indicted Libby on October 28, 2005, on five counts of making false statements, perjury, and obstruction of justice, alleging that he concealed his role in leaking information about Plame to the media. He resigned his positions as chief of staff and national security adviser to Cheney the same day. Libby has never claimed that Cheney encouraged him to disclose information about Plame to the media.
In a January 23 letter, related to discovery issues for Libby's upcoming trial, Fitzgerald wrote to Libby's attorneys: "Mr. Libby testified in the grand jury that he had contact with reporters in which he disclosed the content of the National Intelligence Estimate ("NIE") … in the course of his interaction with reporters in June and July 2003.… We also note that it is our understanding that Mr. Libby testified that he was authorized to disclose information about the NIE to the press by his superiors."
Although it is not known if Cheney had told the special prosecutor that he had authorized Libby to leak classified information to reporters, Dan Richman, a professor of law at Fordham University and a former federal prosecutor for the Southern District of New York, said, "One certainly would not expect Libby, as part of his defense, to claim some sort of clear authorization from Cheney where none existed, because that would clearly risk the government's calling Cheney to rebut that claim."
The public correspondence does not mention the identities of the "superiors" who authorized the leaking of the classified information, but people with firsthand knowledge of the matter identified one of them as Cheney. Libby also testified that he worked closely with then-Deputy National Security Adviser Stephen Hadley and White House Deputy Chief of Staff Karl Rove in deciding what information to leak to the press to build public support for the war, and later, postwar, to defend the administration's use of prewar intelligence.
In the correspondence, Fitzgerald also asserted that Libby testified that he had met with then-New York Times reporter Judith Miller on July 8, 2003, with the "purpose" of intending "to transmit information" to her "concerning the NIE."
That particular meeting has been key to Fitzgerald's investigation because the special prosecutor alleges that Libby lied both to the FBI and to his federal grand jury by saying that he had not discussed Plame with Miller on that date, when in fact he did tell her of Plame's work for the CIA.
In an account of her grand jury testimony, Miller has written that Libby discussed the NIE with her: "Mr. Libby also cited a National Intelligence Estimate on Iraq, produced by American intelligence agencies in October 2002 … which he said had firmly concluded that Iraq was seeking uranium." Portions of the NIE were later declassified, but the material in it related to Niger was still classified at the time.
Libby, through a spokesperson, declined to comment, and the vice president, through a spokesperson, also declined to comment for this story.
The new disclosure that Libby has claimed that the vice president and others in the White House had authorized him to release information to make the case to go to war, and later to defend the administration's use of prewar intelligence, is significant for several reasons. First, it significantly adds to a mounting body of information that Cheney played a central and personal role in directing efforts to counter claims by Wilson and other administration critics that the Bush administration had misused intelligence information to go to war with Iraq.
Second, it raises additional questions about Libby's motives in concealing his role in leaking Plame's name to the press, if he was in fact more broadly authorized by Cheney and others to rebut former Ambassador Wilson's charges. The federal grand jury indictment of Libby alleges that he had lied to the FBI and the federal grand jury by claiming that when he provided information to reporters about Plame's CIA employment, he was only passing along what he understood to be unverified gossip that he had heard from other journalists.
Instead, the indictment charges that Libby had in fact learned of Plame's CIA status from at least four government officials, Cheney among them, and from classified documents. Indeed, much of Libby's earliest and most detailed information regarding Plame's CIA employment came directly from the vice president, according to information in Libby's grand jury indictment. "On or about June 12, 2003," the indictment stated, "Libby was advised by the Vice President of the United States that Wilson's wife worked at the Central Intelligence Agency in the Counterproliferation Division."
Libby testified that Cheney told him about Plame "in an off sort of, curiosity sort of, fashion," according to other information recently unsealed in federal court. Not long after that date, Libby, White House Deputy Chief of Staff Karl Rove, and a third administration official began to tell reporters that Plame had worked at the CIA, and that she had been responsible for sending her husband to Niger.
Finally, the new information indicates that Libby is likely to pursue a defense during his trial that he was broadly "authorized" by Cheney and other "superiors" to defend the Bush administration in making the case to go to war. Libby does not, however, appear to be claiming that he was acting specifically on Cheney's behalf in disclosing information about Plame to the press.
Libby's legal strategy in asserting that Cheney and other Bush administration officials authorized activities related to the underlying allegations of criminal conduct leveled against him, without approving of or encouraging him to engage in the specific misconduct, is reminiscent of the defense strategy used by Oliver North, who was a National Security Council official in the Reagan administration.
North, a Marine lieutenant colonel assigned to the National Security Council, implemented the Reagan administration's efforts to covertly send arms to Iran in exchange for the release of American hostages held in the Middle East, and to covertly fund and provide military assistance to the Nicaraguan Contras at a time when federal law prohibited such activities. Later, it was discovered that North and other Reagan administration officials had diverted funds they had received from the Iranian arms sales to covertly fund the Contras.
If Libby's defense adopts strategies used by North, it might be in part because the strategies largely worked for North and in part because Libby's defense team has quietly retained John D. Cline, who was a defense attorney for North. Cline, a San-Francisco partner at the Jones Day law firm, has specialized in the use of classified information in defending clients charged with wrongdoing in national security cases.
Among his detractors, Cline is what is known as a "graymail" specialist-an attorney who, critics say, purposely makes onerous demands on the federal government to disclose classified information in the course of defending his clients, in an effort to force the government to dismiss the charges. Although Cline declined to be interviewed for this story, he has said that the use of classified information is necessary in assuring that defendants are accorded due process and receive fair trials.
In the Libby case, Cline has frustrated prosecutors by demanding, as part of pretrial discovery, more than 10 months of the President's Daily Brief, or PDBs, the president's morning intelligence briefing. The reports are among the most highly classified documents in government, not only because they often contain sensitive intelligence and methods, but also because they indicate what the president and policy makers consider to be the most pressing national security threats. In the past, the Bush administration has defied bipartisan requests from the Intelligence committees in Congress to turn over PDBs for review.
After Cline demanded the PDBs, Fitzgerald wrote to him on January 9 that the prosecutor's office has only "received a very discrete amount of material relating to PDBs" and "never requested copies of PDBs" themselves, in part because "they are extraordinarily sensitive documents which are usually highly classified." Moreover, Fitzgerald wrote, only a relatively small number of PDB pages included reference to Wilson's trip to Niger.
But Cline has insisted that it is imperative for his client's defense to be able to review the PDBs because part of Libby's defense is that he may have had a faulty memory regarding conversations he had with government officials and reporters regarding Plame, in that he had so many other pressing issues to consider every day as chief of staff and national security adviser to the vice president.
In a January 31 court filing, attorneys for Libby argued: "Mr. Libby will show that, in the constant rush of more pressing matters, any errors he made in FBI interviews or grand jury testimony, months after the conversations, were the result of confusion, mistake, faulty memory, rather than a willful intent to deceive."
In the North case, the Iran-Contra independent counsel, Lawrence Walsh, was forced to dismiss many of the central charges against North, including the most serious ones-that North defrauded taxpayers by diverting proceeds from arms sales to Iran to finance the Nicaraguan Contras-because intelligence agencies and the Reagan administration refused to declassify documents necessary for a trial on those charges.
Walsh and many of his deputies believed that the Reagan Justice Department refused to declassify documents necessary to try North because officials were personally sympathetic to him. A North trial would also have politically embarrassed the Reagan administration, and a North conviction might have led to charges against higher officials.
In court filings, Walsh said that much of what intelligence agencies and the Reagan administration had refused to declassify had long before been published in the media or made public in some other way.
"It was a backdoor way of shutting us down," said one former Iran-Contra prosecutor, who spoke only on the condition that his name not be used, because his current position as a private attorney requires frequent dealings with attorneys who were on the other side of the North case at the time. "It was a cover-up by means of an administrative action, and it was an effective cover-up at that."
The former prosecutor added: "The intelligence agencies do not declassify things on the pretext that they are protecting state secrets, but the truth is that we were investigating and prosecuting their own. The same was true for the Reagan administration. Cline was particularly adept at working the system."
Is it possible that a prosecution of Libby might be impeded or even derailed entirely by the refusal of the Bush White House or its Justice Department to declassify information that might be necessary to try Libby? "Under the current statute, it may well be the attorney general's call-or whomever he designates-to ultimately decide what should be declassified, and what might not be, in the Libby case," said Michael Bromwich, a former associate Iran-Contra independent counsel and a former Justice Department inspector general.
William Treanor, the dean of Fordham University's Law School, and also a former associate Iran-contra special counsel, said that it is less likely that the Bush administration would challenge Fitzgerald as former administrations did with special prosecutors. Walsh, dealing with the Reagan and elder Bush administrations, and Whitewater independent counsel Kenneth Starr, dealing with the Clinton administration, often alleged that political appointees in the Justice Department worked purposely to undermine their investigations.
"Walsh and Starr were not appointed by an attorney general," Treanor said, noting that Walsh, Starr, and earlier special prosecutors had been appointed by a three-judge federal panel instead of by the Justice Department. Currently, he pointed out, special prosecutors are appointed by the attorney general or their designate.
"With Walsh or Starr, the president and his supporters could more easily argue that a prosecutor was overzealous or irresponsible, because there had been a three-judge panel that appointed him," Treanor said. "With Fitzgerald, you have a prosecutor who was appointed by the deputy attorney general [at the direction of the attorney general]. The administration almost has to stand behind him because this is someone they selected themselves. It is harder to criticize someone you yourself put into play."
There are other reasons why it might prove difficult to undercut Fitzgerald, including outstanding questions about the role that Cheney and others in the Bush administration played in the effort to discredit Wilson, and the fact that Cheney is still the point man in defending the White House's use of prewar intelligence on Iraq.
And the new disclosure, that Libby is alleging that Cheney and other Bush administration officials "authorized" him to disclose classified information as a means to counter charges that the administration misused prewar intelligence, might also make it difficult for this administration to refuse to declassify information for Libby's trial.
But a Libby defense strategy asserting that he released classified information or took other actions as broadly authorized by Cheney might have other advantages, if the North case is any guide. At North's trial, the counts on which the jury acquitted him tended to be those involving actions that appeared to be authorized by superiors. He was found guilty of three felonies on which the evidence indicated that he was acting on his own initiative or for his own financial benefit.
"It was a memorable and powerful moment when North told the jury that he was 'a pawn in a chess game played by giants,'" Treanor said.
The claims by North that his activities had been broadly authorized by higher-ups, including even the president, also worked to his advantage when he was sentenced. Despite the fact that North had been convicted of three felonies and that Iran-Contra prosecutors argued before sentencing that letting North off with "only a slap on the wrist … would send exactly the wrong message … [only] 15 years after Watergate," he was sentenced to only probation, a fine, and community service.
North's trial judge, U.S. District Court Judge Gerhard Gesell, took note that the jury had acquitted North of criminal charges mainly where it appeared that his conduct might have been authorized by higher authorities: "Observing that many others involved in the events were escaping without censure or with prosecutorial promises of leniency or immunities, [the jury] used their common sense. And they gave you the benefit of a reasonable doubt."
Explaining his own leniency in sentencing the former NSC aide, Gesell told North: "I do not believe you were a leader at all, but really a low-ranking subordinate to carry out initiatives of a few cynical superiors. You came to be a point man in a very complex power play developed by higher-ups."
Later, North's convictions were overturned on appeal because of concerns that some of the evidence used against him during his trial might have been derived from his testimony before the House-Senate Iran-Contra investigating committee. North had been given immunity for that testimony.
But most outside legal observers say that Libby, because he was himself such a high-ranking official, will most likely face a much more difficult time than North did in arguing that, in some of his activities, he was just carrying out orders from Cheney or other senior White House officials.
"A defendant can make a claim that he is just a victim of Washington politics or doing the bidding for someone else," said Richman, the former prosecutor, "But there may be limits to a jury's sympathy when that defendant himself was so high-ranking. Given Libby's position in the White House, the jury is less likely to view him as a sacrificial lamb than as a sacrificial ram."
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