If you want to understand how the Bush administration really works, you should write a check to Scooter Libby’s legal defense fund. Usually the public has to wait for the tell-all books published after a president leaves office for juicy depictions of the infighting, back–stabbing, and pettiness. But Libby’s trial, which starts in January, will offer a sneak preview. There will be memos and meeting notes about the most secret administration activities. And since the testimony from current and former Bush officials will be under oath, it’s likely to be closer to the truth than anything we’d ultimately find at the bookstore.
The Bush administration has been so opaque and has dissembled so often that we should embrace anything that forces candor about the past or encourages it in the present. Already we’ve learned from pretrial motions that President Bush made a highly informal declassification of the National Intelligence Estimate earlier than we had previously known (we also learned that Bush did not authorize the Plame leak).
Just how much more we learn about the Bush administration may depend on how well Libby and his team of lawyers do their jobs. Special counsel Patrick Fitzgerald would like to keep the trial focused on a narrow question: Did Libby lie to investigators and the grand jury investigating whether officials leaked Valerie Plame’s identity to punish her husband, Joe Wilson? Libby wants to talk about a lot more, from Wilson’s original assessment of Saddam’s efforts to buy uranium, to the president’s pledge to punish the Plame leaker, and everything in between. Only by painting on the broad canvas, Libby claims, will jurors see that any misstatements he made were innocent mistakes.
To put on this wide-ranging defense, Libby needs access to more of what’s in Fitzgerald’s file drawers. That’s what all the legal wrangling has been about lately: Fitzgerald says he has given over enough; Libby says he hasn’t. The defense argues that in order to rebut the claim that Libby was fixated on Plame’s CIA affiliation, they need access to anything that relates to the nature of the White House spin operation and its specific effort to rebut Joe Wilson’s claims. Only then can they show that Libby was focused on responding to the merits of Wilson’s allegations and not to whether his wife sent him on his mission. Libby also wants anything Fitzgerald has that might illuminate bureaucratic fighting between the vice president’s office, the State Department, and the CIA. The defense hopes to suggest to jurors that any witness who testifies against Libby from the State Department or CIA could be nursing a grudge. “There is certainly nothing unusual about a defendant arguing that the personal and professional allegiances of a witness may result in false or distorted testimony,” write Libby’s lawyers in their latest request for documents.
Questioning the motives of prosecution witnesses seems somewhat risky, since Libby denies Fitzgerald’s charge that he was trying to undermine Wilson by questioning his allegiances or motives. But there is a legitimate basis for Libby’s lawyers to take the tack of exposing intergovernmental conflict about Iraq’s WMD. If administration infighting was bad enough to influence the assessment of prewar intelligence, they could argue, why couldn’t the same sort of animus affect testimony from administration officials that Fitzgerald uses to build his case? Information from several of those former colleagues directly contradicts Libby’s testimony that he first heard about Plame from NBC’s Tim Russert, and that he never considered her role in sending her husband to Africa as critical.
Fitzgerald worries that Libby is trying to distract from the case at hand with lots of irrelevancies. He suggests in his filings that the defense’s strategy is not an effort to rebut the specific charges in the indictment but to divert them. It is a common defense tactic to create a sideshow that confuses jurors enough that they start having doubts.
I hope Libby wins this battle. The more we know about what went on before and after the invasion of Iraq, the better. And we want to see it now, while everyone’s memory is fresh and people can be put under oath. New instances of intelligence that contradicted the White House’s talking points—and never quite made it to the president or the public—continue to pop up on a regular basis. The Washington Post provided the latest account, about a military mission that concluded that Saddam’s alleged biological weapons trailers were nothing of the kind—and whose report the administration ignored and buried. Was it interagency distrust that led to such failures in the intelligence system, or was it the administration spin machine that misled the public? Libby’s plans to call Karl Rove and former CIA Director George Tenet should help answer those questions. And if nothing else, we’ll finally hear Rove talk about his central role in leaking Plame’s identity.
Naturally, Libby is going to present the evidence and the narrative that will keep him out of jail. He’ll be motivated to overplay the infighting and turn on his old colleagues to save himself. But he won’t be doing it in a vacuum. Fitzgerald will be there to challenge Libby, and administration officials will respond in their own defense, as they already have about Bush’ declassification/leak of the NIE. The press will be able to sift and sort through the three accounts and compare them with the existing public record. Bloggers should start catching up on sleep now. The better job Libby’s defense team does compelling Fitzgerald to open his files, the better we’ll understand what went wrong.
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