updated 10/29/2005 4:46:57 PM ET 2005-10-29T20:46:57

Guests: Robert Ray, Lanny Davis, Jackson Hogen, Peter Brookes, Jon Sale

RITA COSBY, HOST:  Good evening, Keith, thanks so much.  And good evening everybody.

It‘s a truly momentous day in Washington and the country.  Vice president Cheney‘s chief of staff “Scooter” Libby indicted in the CIA leak investigation.  In the most extraordinary press conference, prosecutor Patrick Fitzgerald laid out the five charges against Libby, exposing his alleged crimes for the first time.

Tonight, for those of you who have not seen this riveting and remarkable event, we‘re going to show it to you right here on LIVE AND DIRECT for the next hour. 

Plus, expert analysis from our panel including former independent council Robert Ray, who investigated the Monica Lewinsky and Whitewater scandals, Lanny Davis, who served as special counsel to the president, to President Clinton and MSNBC‘s Tucker Carlson. 

Special prosecutor Patrick Fitzgerald minced no words.  He laid out “Scooter” Libby‘s five charges right from the get go. 

One count of obstruction of justice of the federal grand jury, two counts of perjury, and two counts of making false statements.  He then details all the crimes in a clear and crisp manner and never had to look at his notes.  This was a prosecutor who knew his stuff.

(BEGIN VIDEO CLIP)

PATRICK FITZGERALD, SPECIAL COUNSEL FOR THE JUSTICE DEPT.:  Essential when a witness comes forward and gives their account of how they came across classified information and what they did with it that it be accurate.  Now that brings us to the fall of 2003 when it was clear that Valerie Wilson‘s cover had been blown, an investigation began. 

In October 2003, the FBI interviewed Mr. Libby.  Mr. Libby is the vice president‘s chief of staff.  He‘s also an assistant to the president and assistant to the vice president for national security affairs.  The focus of the interview was what was it that he had known about Wilson‘s wife, Valerie Wilson, what he knew what Ms. Wilson, what he said to people, why he said it and how he learned it. 

And to be frank, Mr. Libby gave the FBI a compelling story.  What he told the FBI is that essentially he was at the end of a long chain of phone calls.  He spoke to reporter Tim Russert and during the conversation, Mr.  Russert told him that, hey, do you know that all the reporters know that Mr. Wilson‘s wife works at the CIA. 

And he told the FBI that he learned that information as if it were new and it struck him, so he took this information from Mr. Russert and later on he passed it on to other reporters including reporter Matthew Cooper of “TIME” magazine and reporter Judith Miller of “The New York Times”.

And he told the FBI that when he passed the information on, on July 12, 2003 two days before Mr. Novak‘s column, that he passed it on understanding that this was information he had gotten from a reporter.  That he didn‘t even know if it was true.  And he told the FBI that when he passed the information on to reporters, he made clear that he did not know if this was true. 

This was something that all the reporters were saying and, in fact, he just didn‘t know.  And he wanted to be clear about it.  Later, Mr. Libby went before the grand jury.  On two occasions in March of 2004, he took an oath and he testified.  And he essentially said the same thing.  He said that, in fact, he had learned from the vice president earlier in June 2003 information about Wilson‘s wife, but he had forgotten it. 

Now he had learned the information from Mr. Russert during this phone call, he learned it as if it were new.  And when he passed the information on to reporters, Cooper and Miller late in the week, he passed it on thinking it was just information he received from reporters and that he told reporters that, in fact, he didn‘t even know if it were true.  He was just passing gossip from one reporter to another with a long end of a chain of phone calls. 

It would be a compelling story that would lead the FBI to go away if only it were true.  It is not true according to the indictment.  In fact, Mr. Libby discussed the information about Valerie Wilson at least half a dozen times on before this conversation with Mr. Russert ever took place.  Not to mention that when he spoke to Mr. Russert, Mr. Russert and he never discussed Valerie Wilson or Wilson‘s wife.  He didn‘t learn it from Mr.  Russert.  And if he had, it would not have been new at the time. 

Let me talk you through what the indictment alleges.  The indictment alleges that Mr. Libby learned the information about Valerie Wilson at least three times in June of 2003 from government officials.  Let me make clear there was nothing wrong with government officials discussing Valerie Wilson or Mr. Wilson or his wife in imparting the information to Mr. Libby.  But in early June, Mr. Libby learned about Valerie Wilson and the roles she was believed to play in having sent Mr. Wilson on a trip overseas from a senior CIA officer on or around June 11 from an undersecretary of state on or around June 11 and from the vice president on or about June 12. 

It‘s also clear as set forth in the indictment that sometime prior to July 8, he also learned it from somebody else working in the vice president‘s office.  So at least four people within the government told Mr.  Libby about Valerie Wilson, often referred to as Wilson‘s wife working at the CIA and believed to be responsible for helping organize a trip that Mr.  Wilson took overseas. 

In addition to hearing it from government officials, it‘s also alleged in the indictment that at least three times Mr. Libby discussed this information with other government officials.  It‘s alleged in the indictment that in June 14 of 2003, a full month before Mr. Novak‘s column, Mr. Libby discussed it in a conversation with his CIA briefer in which he was complaining to the CIA briefer his belief that the CIA was leaking information about something or making critical comments and he brought up Joe Wilson and Valerie Wilson.  It‘s also alleged in the indictment that Mr. Libby discussed it with a White House press secretary on July 7, 2003 over lunch. 

What‘s important about that is that Mr. Libby, the indictment alleges, was telling Mr. Fleischer something on Monday that he claims to have learned on Thursday.  In addition to discussing it with Mr.—the press secretary on July 7, there was also a discussion on or about July 8, in which counsel from the vice president was asked a question by Mr. Libby as to what paperwork the Central Intelligence Agency would have if an employee had a spouse go on a trip.  There are at least seven discussions involving government officials prior to the day when Mr. Libby claims he learned this information as if it were new from Mr. Russert and, in fact, when he spoke to Mr. Russert, they never discussed it.

But in addition to focusing on how it is that Mr. Libby learned this information and when he thought about it, it‘s important to focus on what it is that Mr. Libby said to reporters.  And the account he gave to the FBI and to the grand jury was that he told reporters Cooper and Miller at the end of the week on July 12.  Now what he told them was he gave them information that he got from other reporters. 

Other reporters were saying this and Mr. Libby did not know if it were true and, in fact, Mr. Libby testified that he told reporters he did not even know if Mr. Wilson had a wife.  And in fact, we now know that Mr.  Libby discussed this information about Valerie Wilson at least four times prior to July 14, 2003 on three occasions with Judith Miller of “The New York Times” and on one occasion with Matthew Cooper of “TIME” magazine. 

The first occasion in which Mr. Libby discussed it with Judith Miller was back in June 23 of 2003 just days after an article appeared online in “The New Republic”, which quoted some critical commentary from Mr. Wilson.  After that discussion with Judith Miller on June 23, 2003, Mr. Libby also discussed Valerie Wilson on July 8 of 2003.  And during that discussion, Mr. Libby talked about Mr. Wilson in a conversation that was on background as a senior administration official.  And when Mr. Libby talked about Wilson, he changed the attribution to a former Hill staffer. 

During that discussion, which was to be attributed to a former Hill staffer, Mr. Libby also discussed Wilson‘s wife Valerie Wilson working at the CIA and then finally again on July 12.  In short, and in those conversations Mr. Libby never said this is something that other reporters are saying.  Mr. Libby never said this is something that I don‘t know if it‘s true.  Mr. Libby never said, I don‘t even know if she had a wife. 

At the end of the day, what appears is that Mr. Libby‘s story that he was at the tail end of a chain of phone calls passing on from one reporter what he heard from another was not true.  It was false.  He was at the beginning of the chain of phone calls, the first official to disclose this information outside the government to a reporter and that he lied about it afterwards under oath and repeatedly. 

(END VIDEO CLIP)

COSBY:  Patrick Fitzgerald.  Well, let‘s bring in our distinguished panel of guests who are going to be with us for this hour on this historic day.  Robert Ray, an independent counsel during the Monica Lewinsky and Whitewater scandals.  Also Lanny Davis who served as special counsel to President Clinton and our own Tucker Carlson, host of “THE SITUATION”.

Robert Ray, let me start with you.  This prosecutor seems like honorable, no nonsense type of guy.  What did you think of him? 

ROBERT RAY, INVESTIGATED MONICA LEWINSKY SCANDAL:  I think it would be fairly characterized as the performance of a lifetime.  This is one with a blue-collar voice and a Harvard Law degree who carried on for up to an hour without notes and gave an impressive and detailed account of the entirety of the investigation. 

COSBY:  You know what?  Lanny, did you detect any partisanship?  I think this is going to be a hard guy for the White House to attack.

LANNY DAVIS, SERVED AS SPECIAL COUNSEL TO PRES. CLINTON:  Well I was thinking, I‘m glad I‘m not over there compared to the much easier task of showing Ken Starr to be a political partisan figure.  This prosecutor is so objective and so professional and so careful in the words.  The most important moment to me, and I wonder whether Mr. Ray agrees with this philosophy, is that a prosecutor doesn‘t speak words outside of the four corners of an indictment. 

He doesn‘t hold press conferences.  He doesn‘t comment on other charges.  He keeps himself confined to the case that‘s presented in the indictment, which he intends to prove in court.  And when he said that, I was wondering, I wish there were more prosecutors like that. 

COSBY:  You know, and Robert Ray, don‘t you think he really did do a good job of giving us a full picture but staying within the box? 

RAY:  It was restrained and it obviously shows his experience and judgment.  I think more than anything else, he was careful, as Lanny suggest, to stay within the four corners of the indictment.  But also, all of this you know should be seen in the light of what happened today. 

This is the bringing of an indictment.  It is an accusation.  The presumption of innocence applies.  And as to whether or not these charges have merit, that‘s obviously for the court now and for a jury ultimately to decide. 

COSBY:  You know, and Tucker, it seems that this prosecutor is not someone you want to go up against, particularly if you‘re accused of lying.  He seems no nonsense, one of those folks who judges everybody equally, which is the kind of guy you want in that seat. 

TUCKER CARLSON, HOST, “THE SITUATION”:  Yes, maybe so.  We‘ll find out.  I wouldn‘t want to tangle with him.  He intimidated me just watching.  He clearly knows the case well.  He‘s an impressive speaker.  He did not stay within the four corners of the indictment, however.  He opened up with a little lecture about the effect to the harm to national security that this leak did. 

That‘s not in the indictment at all.  And when asked to explain how exactly this leak harmed American national security, he refused to answer.  So in fact, there was a kind of disingenuous, not kind of, quite disingenuous moment in all this because of course if he thinks this leak was a crime, he should indict on it and he hasn‘t.

COSBY:  Lanny, what‘s your response to that?

DAVIS:  Actually, I don‘t have the paragraph.  You may be interpreting it differently, Tucker.  But on the first or the second page of the indictment, there‘s a bottom paragraph that specifically says that the discussion of Ms. Plame as an employee at the CIA and the overall substance of what is being looked into impacted and he listed national security intelligent sources and methods.  I think you‘re right that he didn‘t say the specific obstruction or perjury had an impact on national security...

CARLSON:  Right.

DAVIS:  ... he‘s charged with, but did he mention that issue.

CARLSON:  No, but again and again—and I was impressed by this sentiment.  He said in these cases you ought to either charge someone or be quiet.  You shouldn‘t throw around charges and not back them up with indictments.  If people aren‘t going to be charged, you ought to keep them out of it.  And, again, he opened it up with a discussion of the leak itself. 

And, again, that‘s not in the indictment.  The leak itself is not something anybody is being charged for, but he characterized it as something that hurt American national security.  And the reason it‘s significant in my view is there‘s evidence that‘s not true.  Andrea Mitchell today reported on MSNBC that the CIA did a damage assessment of this leak to determine who was hurt by it and they concluded there wasn‘t damage to American national security, so it‘s significant. 

COSBY:  Yes, he did trick on it.  Let me go back to actually—to the actual charges.  The cover-up, not the leak per se, but the cover-up of what he did he find “Scooter” Libby guilty of.  And I want to bring this to Robert Ray because these charges are pretty serious. 

One count of obstruction of justice, two counts of making false statements, two counts of perjury.  He did hit home that these are serious issues, don‘t you think? 

RAY:  I think the thing that was striking about the press conference was his return to the kind of case that he intends to present ultimately to a jury and that was to use repeated instances, his words, of efforts to mislead or impair the investigation through statements to federal investigators and then thereafter to the grand jury.  But also at the same time, he was careful here, I think, not to overcharge this case. 

And I think has been pointed out over several weeks, there are some fundamental problems with the classified information statute as well as the particular statute that relates to the disclosure of the identity of an undercover CIA operative that probably counseled in favor of him sticking to the tried and true, i.e., efforts to engage in a cover-up and not so much about whether or not an underlying crime was committed. 

COSBY:  Yes, it seems that he stuck with safer ground.  Everybody, stick with us if you could.  Our panel is going to continue with us for this special edition of LIVE AND DIRECT. 

He is the first White House official to be indicted in more than 100 years, but who really is “Scooter” Libby?  We‘re going to talk to two people who know him well. 

Plus...

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  ... reference to a senior official over at the White House, Official A...

UNIDENTIFIED MALE:  Official A, a leaker?

(END VIDEO CLIP)

COSBY:  Is Official A really Karl Rove?  And what role did he have in the CIA leak?  That‘s next on LIVE AND DIRECT.  Stick with us, everybody.

(COMMERCIAL BREAK)

COSBY:  Lewis “Scooter” Libby was perhaps the most powerful man in Washington you never heard of until now.  I spoke with him myself a few times when I was based in Washington.  “Scooter” Libby served three Republican presidents and was so close to Vice President Cheney working as his right-hand man, he actually rode to work each day in Cheney‘s limo. But now the CIA leak investigation has focused the type of attention on Libby that he has tried so hard to avoid all these years.

So who is Scooter Libby?  LIVE AND DIRECT tonight from Reno, Nevada is Jackson Hogen.  He‘s one of Scooter Libby‘s friends.  And also joining us is Peter Brookes.  He‘s a former CIA operative.  He‘s also an author of the book “A Devil‘s Triangle: Terrorism, Weapons of Mass Destruction and Rogue States”.

Mr. Hogen, let me start with you.  How long have you known “Scooter” Libby? 

JACKSON HOGEN, FRIEND OF “SCOOTER” LIBBY:  Forty years. 

COSBY:  And when was the last time you talked to him? 

HOGEN:  Last weekend. 

COSBY:  What kind of a guy is he, you know, for folks who don‘t know him?

HOGEN:  Well to begin with, he‘s a lot more fun than you might imagine.  He‘s not shy about a good time if it‘s available.  And he‘s very meticulous, super bright and extremely competent. 

COSBY:  Is he someone who is forgetful or might forget the facts or who he spoke to? 

HOGEN:  Seems somewhat out of character. 

COSBY:  Let me bring in Peter Brookes.  Peter, you actually—he actually interviewed you for a job.  Tell us about that. 

PETER BROOKES, FORMER CIA OPERATIVE:  That‘s right.  Before the inauguration in 2001, he interviewed me for a job in the vice president‘s office before I ultimately became a deputy assistant secretary over at the Pentagon. 

COSBY:  You never took the job, right? 

BROOKES:  No, I wasn‘t offered the job and ended up that—the way things worked out is I got a principle‘s job over at the Pentagon, which was a terrific job as well. 

COSBY:  And what were your impressions of him at that point, Peter? 

BROOKES:  Well I met him a few times since then as well, but he‘s a very smart man.  He‘s very serious man.  He‘s very capable and very, very qualified.  I was quite impressed with him actually.

COSBY:  Were you surprised when he was sort of swept up in all of this?  You know for folks—you know Washington well, Peter. 

BROOKES:  Yes.

COSBY:  He was a key player, not a known guy, but one of those sort of silent key players.

BROOKES:  Absolutely, I mean he was a confidant of the vice president.  He was not only his chief of staff, which is usually a separate job, he was also his senior advisor for national security affairs and that‘s where I crossed paths with him.  So he really was dual-hatted.  That‘s a very, very big job.  So he not only did domestic policy for Vice President Cheney, but he also did his national security affairs as well.  And as you know, Rita, Cheney was very serious about national security issues.

COSBY:  You bet.  That was like forefront on his mind.  Jackson Hogen, were you surprised that your longtime friend, “Scooter” Libby, was sort of swept up in all of this?

HOGEN:  I wasn‘t surprised that he was implicated in the investigation...

COSBY:  Why not? 

HOGEN:  ... given the broad scope—well because of his broad scope

of his responsibilities.  He after all does represent the vice president

and given the fact that the vice president is not, is somewhat media shy

himself, it seemed sort of natural that “Scooter” would play a role, sort

of intercepting the media, you know for the vice president‘s office.  So

being in some fashion implicated wasn‘t a shock, but I can‘t say that I‘m -

I feel the same way about his indictment.

COSBY:  Knowing who he is and what he‘s facing now, if he does know something, again, this is just an indictment, it‘s going to be a bit of a process.  Is he the kind of guy who‘s going to bite the bullet for the administration or knowing that he could face now 30 years, if he has something, he might share it? 

HOGEN:  (INAUDIBLE) boy, this is in the area of wild speculation, but I don‘t think he‘d bite the bullet.  “Scooter” is a competitive person by nature.  I think he‘s going to fight back.  He‘ll defend... 

COSBY:  You do...

HOGEN:  I think he‘ll defend himself.

COSBY:  To the bitter end? 

HOGEN:  Well, that‘s, again, that‘s even further out in the speculative trail but I would say so.

COSBY:  All right, Jackson Hogen, thank you very much for giving us some insight...

HOGEN:  My pleasure, Rita.

COSBY:  ... and also Peter Brookes.  Thank you very much.  We appreciate both of you being with us.  And Peter stick with us. 

So now we know a little bit about “Scooter” Libby from these guys, but who is this mysterious person, the special prosecutor Patrick Fitzgerald referred to as Official A.  A lot of people are wondering who that person could be.

Listen to what was said about that today. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  For all the sand thrown in their eyes, it sounds like you do know the identity of the leaker.  Is it in reference to a senior official over at the White House, Official A, who had a discussion with Robert Novak about Joe Wilson‘s wife.  Can you explain why that official was not charged? 

FITZGERALD:  I‘ll explain this.  I know that people want to know whatever it is that we know.  And they‘re probably sitting at home with TV thinking, I want to jump through a TV, grab him by his collar and tell him to tell us everything that he figured out over the last two years.  We just can‘t do that.

It‘s not because we enjoy holding back information from you.  That‘s the law.  And one of the things we do with a grand jury is we gather information and the explicit requirement is if we‘re not going to charge someone with a crime, if we decide that a person did not commit a crime, we cannot prove a crime, doesn‘t merit prosecution, we do not stand up and say we gathered all of this information on the commitment that we‘re going to follow the rules of grand jury secrecy, which say we don‘t talk about people not charged with a crime and then at the end say, well, it‘s a little inconvenient not to give answers out so I‘ll give it out any way. 

I can‘t give you answers on what we know and don‘t know other than what‘s charged in the indictment.  It‘s not because I enjoy being in that position.  It‘s because the law is that way.  I actually think the law should be that way.  We can‘t talk about information not contained in the four corners of the indictment. 

UNIDENTIFIED MALE:  You said earlier in your statement here that Mr.

Libby was the first person to leak this information out to the government.  First of all, that implies that there might have been other people inside the government who made such leaks.  Secondly in paragraph 21, the one about Official A, you implied that Novak might have heard this information about the woman, Ms. Wilson, from another source but you don‘t actually say that.  What can you tell us about the existence that you know of or don‘t know of or whatever of other leakers?  Are there definitely other leakers?  Is Official A, a leaker or just a facilitator?  Are you continuing to investigate other possible leakers? 

FITZGERALD:  I‘m afraid I, going to have to find a polite way of repeating my answer to Mr. Isikoff‘s question, which is to simply say I can‘t go beyond the four corners of the indictment.  And I‘ll probably just say I repeat it so I don‘t misstep and give you anything more than I should.  Yes.

UNIDENTIFIED FEMALE:  Can you say whether or not you know whether Mr.  Libby knew that Valerie Wilson‘s identity was covert and whether or not that was pivotal at all in your inability or your decision not to charge (INAUDIBLE)?

FITZGERALD:  Let me say two things.  Number one, I am not speaking to whether or not Valerie Wilson was covert.  And anything I say is not intended to say anything beyond this.  That she was a CIA officer from January 1, 2002 forward.  I will confirm that her association with the CIA was classified at that time through July 2003. 

And all I‘ll say is that look, we have not made any allegation that Mr. Libby knowingly, intentionally outed a covert agent.  We have not charged that.  And so I‘m not making that.

UNIDENTIFIED MALE:  Would you oppose a congressional investigation into the leak of Valerie Plame‘s identity and if not, would you be willing to cooperate with such an investigation by handing over the (INAUDIBLE)? 

FITZGERALD:  Well, I guess that‘s two questions and I‘m not—I know I can answer the first—I can answer the second part.  Turning over the work product, there are strict rules about grand jury secrecy if there were an investigation and frankly, I have to pull the book out and get the—the people smarter than me about grand jury rules in Chicago and sit down and tell me how to works. 

My gut instinct is that we do not—very, very rarely is grand jury information shared with the Congress.  And I also think I have to be careful about what my charter is here.  I don‘t think it‘s my role to opine or whether the Justice Department would oppose or not oppose some other investigation, so I‘m certainly not going to figure that out standing up here with a bunch of cameras pointed at me. 

(END VIDEO CLIP)

COSBY:  Let‘s bring back in our panel Robert Ray, Lanny Davis, Tucker Carlson, and let‘s also welcome into our panel Jon Sale, who is a former federal prosecutor in the Watergate scandal. 

Jon, let me start with you.  You‘re familiar with how White Houses work, sort of the inner circles.  How high could this leak go? 

JON SALE, FORMER FEDERAL PROSECUTOR:  Well that‘s the special thing about an independent counsel or special prosecutor.  They‘re able to without any conflict investigate and wherever the chips fall, they fall and, you know, when Mr. Fitzgerald says his investigation is not over, I think we have to take him at his word.  And it‘s going to continue until, as he said, he can look people in the eye and say we‘ve uncovered every last stone. 

COSBY:  You get a sense Jon he‘s going to get to the bottom of this? 

SALE:  Oh I think he‘s going to do everything possible within the law and I believe he‘s nonpartisan.  But you know I also want to say we‘ve got to remember that Mr. Libby is presumed innocent.  I haven‘t heard much discussion about that. 

COSBY:  Good point.  We did just hear from two friends and, in fact, one of them who definitely believes he‘s innocent.  Let me bring in Robert Ray. 

Robert, do you think we‘re ever going to know who Official A is?  Who the leak source is, the ultimate leaker? 

RAY:  Remember, we‘re only at the beginning of this process.  Obviously what‘s envisioned here or what may be envisioned here ultimately is a trial.  I could certainly conceive of circumstances where the disclosure of who that Official A would occur during the course of a proceeding at trial. 

And it also should be just simply noted that Mr. Fitzgerald is correct given what is alleged in that particular paragraph of the indictment since that person was not charged with a crime.  It would be improper for him under department of—existing Department of Justice policy to have named who the individual was. 

COSBY:  Lanny, any sense on who the leaker is?  You know in a town full of leaks, we‘ve heard just a couple of tricklings, but we still don‘t know sort of the official leak on the leaker? 

DAVIS:  Well looking at this as a pure crisis management perspective from the White House and from President Bush‘s standpoint, he wants to put to rest these unanswered questions.  And I think the one big elephant in the room, if I can use a mixed metaphor, is what did the vice president know?  When did he know it?  And what role did he play here? 

Him putting a statement out that he‘s not going to comment about Mr.  Libby‘s case is appropriate and he shouldn‘t.  There is a presumption of innocence.  We all agree on that.  But I‘d like to know and the American people have a right to know is why did he tell Mr. Libby that this woman worked at the CIA?  What was he trying to accomplish by attacking Ambassador Wilson by mentioning that his wife sent him to Africa?

What is his role?  He needs to do a Geraldine Ferraro press conference, answer all the questions, not address the issues involving Mr.  Libby, but Vice President Cheney is in this case now as a political matter and as I think a moral matter because of the endangerment of the outing of Valerie Plame.  He needs to tell people whether he had any role here and what was it. 

COSBY:  And Tucker, I‘m going to go to you.  I‘m going to ask you about Cheney, but I also want to show what you just crossed the AP a little bit ago.  Tucker, you may not have seen this.  Three people close to the investigation, this is according to The Associated Press, each asking to remain unidentified because of grand jury secrecy, identified this person, Official A, as Karl Rove.

CARLSON:  Right.

COSBY:  What‘s the sense there...

CARLSON:  I mean I can tell you everybody here thinks that...

(CROSSTALK)

COSBY:  That‘s what I‘ve been hearing for years. 

CARLSON:  Yes, of course, yes, everybody thinks that.  I want to say quickly about Cheney.  Give me a break.  I mean, look, this guy, Wilson, writes this piece.  He‘s criticizing the administration, leaking to Nic Kristof about his time in Niger.  The vice president is mad.  Who is this guy? 

How—why did CIA send him, because his wife works there.  He‘s talking to his chief deputy telling him this.  That‘s not a crime.  It‘s not unusual.  It‘s not even weird and everyone knows it.

(CROSSTALK)

CARLSON:  No, no, hold it.  What‘s disturbing about the second part of this, Official A, whether it‘s Karl Rove or not, is that this guy is not indicted.  Whoever he is, it looks very much like the prosecutor knows who committed the original—quote—“crime in question” and that is who leaked this information, supposedly confidential or classified, to Robert Novak? 

If he knows, he ought to indict the guy or at least explain why he‘s not.  He gets up there and says you want to ring my neck, but I can‘t tell you.  Well I do want to ring your neck because I want to know and I think we have a right to know.  We‘re paying for...

COSBY:  Let me give Lanny 10 seconds to respond, because we have to take a hard break.

DAVIS:  Ten seconds?

COSBY:  I‘ll give you 15.

DAVIS:  If it‘s not a big deal, my good friend, Tucker, why is Dick Cheney whispering out of the corner of his mouth behind closed doors?  This has been a secretive process.  They did not want to come out directly and challenge Wilson.  They whispered anonymously in reporters‘ ears. 

Why was Dick Cheney so afraid of being public and direct?  And that raises questions he‘s got to respond to.  Maybe he has good answers.

CARLSON:  If this showed that Cheney called reporters or is telling people without security clearances about Valerie Wilson, that‘s a big deal.  But that‘s not what we‘re talking about.  We‘re talking about Cheney talking to his chief deputy, the guy who spends all day...

DAVIS:  Then why the secrecy? 

CARLSON:  Because they‘re having a conversation...

DAVIS:  But why was Cheney so secretive? 

CARLSON:  Because it‘s confident...

DAVIS:  This has been a whisper.  Not only was Libby afraid to say that he was a White House official on background, he actually got Judy Miller to say that he was a former Hill staffer.  They were afraid of this being known for reasons that you can‘t...

(CROSSTALK)

CARLSON:  Both of you, I‘m going to be afraid if I don‘t make this commercial break.  Everybody, hang tight, if you could.  Still a lot more ahead with our great, feisty panel. 

Just how serious of a crime was committed?  And what effect, if any, is it having on national security?  That‘s next on LIVE & DIRECT as we continue to listen to one of the most amazing news conferences ever held in Washington. 

(BEGIN VIDEO CLIP)

FITZGERALD:  One day I read that I was a Republican hack.  Another day, I read I was a Democratic hack.  And the only thing I did between those two nights was sleep.  I‘m not partisan.  I‘m not registered as part of a party. 

(END VIDEO CLIP)

(COMMERCIAL BREAK)

COSBY:  And welcome back, everybody, to LIVE & DIRECT on this critical night in American politics. 

Today, Scooter Libby became the first White House official in more than 100 years to be indicted.  He‘s accused of lying to investigators over who leaked a CIA agent‘s name to the media.  In an extraordinary press conference, Special Prosecutor Patrick Fitzgerald said this case goes beyond politics and is really an issue of national security. 

(BEGIN VIDEO CLIP)

FITZGERALD:  Valerie Wilson was a CIA officer.  In July 2003, the fact that Valerie Wilson was a CIA officer was classified.  Not only was it classified, but it was not widely known outside the intelligence community. 

Valerie Wilson‘s friends, neighbors, colleagues and classmates had no idea she had another life.  The fact that she was a CIA officer was not well-known, for her protection or for the benefit of all of us.  It‘s important that, if a CIA officer‘s identity be protected, that it be protected not just for the officer but for the nation‘s security. 

It was known that a CIA officer‘s identity was blown.  It was known that there was a leak.  We needed to figure out how that happened, who did it, why, whether a crime was committed, whether we could prove it, whether we should prove it. 

And given that national security was at stake, it was especially important that we find out accurate facts. 

This is a very serious matter.  And compromising national security information is a very serious matter.  But the need to get to the bottom of what happened and whether national security was compromised by inadvertence, by recklessness, by maliciousness is extremely important. 

We need to know the truth.  And anyone who would go into a grand jury and lie, and obstruct, and impede the investigation has committed a serious crime. 

I will say this:  Mr. Libby is presumed innocent.  He would not be guilty unless and until a jury of 12 people came back and returned a verdict saying so.  But if what we allege in the indictment is true, then what is charged is a very, very serious crime that will vindicate the public interest in finding out what happened here. 

UNIDENTIFIED MALE:  In your investigation, have you determined how it was that Ambassador Wilson became the person to be sent to Niger to investigate this situation? 

How directly involved was his wife involved in this his selection, how much pressure she may have put on officials?  And also, I‘m wondering about the cooperation you‘ve received from the CIA? 

FITZGERALD:  And I think all government agencies that we have turned to for cooperation have cooperated.  I‘m not going to comment on the circumstances of the trip. 

I think the only thing that‘s relevant, frankly, is the belief in the mind of some people that she was involved in the trip or responsible for sending the trip—the dispute as to whether, in fact, she was is irrelevant to the charge before us. 

What we‘re talking about is why—the investigation was why someone compromised her identity.  And issue, in this indictment, is whether or not Mr. Libby knowingly and intentionally lied about the facts.  And whatever happened in that trip and what role, if any, the wife played is really irrelevant and not our focus. 

UNIDENTIFIED MALE:  People who are opposed to the war, critics of the administration, have looked to your investigation and hope, in some ways, they might see this indictment as a vindication of their argument that the administration took the country to war on a false premises.  Does this indictment do that? 

FITZGERALD:  This indictment is not about the war.  This indictment is not about the propriety of the war.  And people who believe fervently in the war effort, people who oppose it, people who have mixed feelings about it should not look to this indictment of any resolution of how they feel or any vindication of how they feel. 

(END VIDEO CLIP)

COSBY:  That was Patrick Fitzgerald.  We‘re going to have more with the special prosecutor in a moment.

But first, let‘s bring back in our panel.  Independent Counsel Robert Ray, Lanny Davis, who served as special counsel to President Clinton, also the host of THE SITUATION, MSNBC‘s Tucker Carlson, and former CIA operative Peter Brookes.  Plus, we also have former federal prosecutor Jon Sale, who worked on Watergate. 

Peter Brookes, was national security at stake? 

BROOKES:  Well, yes, it is.  In a certain—there is a law out there, the Intelligence Identity Protections Act.  And it is very important, as Fitzpatrick said, that the identities of undercover CIA operatives be protected.  It is a national security issue.  So it is very important. 

COSBY:  You know, Jon Sale, how do you look at it, in terms of national security?  Do you believe it‘s sort of all a cover-up to cover the real reason for war? 

SALE:  No, not at all.  The national security, of course, is of paramount importance.  But when Mr. Fitzgerald was appointed, there were really two questions.  Who outed Valerie Plame?  And who else in the White House might have been involved? 

This indictment, even the allegations, this indictment does not provide any answers to either of those two questions. 

COSBY:  Yes, are you surprised it doesn‘t? 

SALE:  Well, there apparently is not sufficient evidence to prove that anybody violated the statute. 

COSBY:  You know, Robert Ray, one of the focuses here is clearly the sort of smear campaign that a lot of people believe was the reason all of these things were leaked, if indeed they were leaked, of course, the big allegation that it was to cover up for something else. 

This wouldn‘t be the first time.  You‘ve investigated a lot of White Houses, you know, Clinton White House, others, which have done concerted smear campaigns, right? 

RAY:  I think the importance, though, of that is that if the purpose was in an effort to show bias by, you know, the husband-and-wife team here, that would, in part, explain why Mr. Fitzgerald might not have felt comfortable in charging in those areas.

Because, you know, really what you‘re looking for is proof that a defendant intentionally disclosed confidential information or outed a CIA operative.  I don‘t think that that‘s what the facts would apparently show. 

That was not the reason.  The reason that the information was shared into the public domain was for the purpose of exploring whether or not there was bias and how he came to get his job to do this mission to Africa.  And I think that‘s probably what explains why he decided not to bring charges in that area. 

COSBY:  Lanny, what do you think was behind all of this? 

DAVIS:  Well, I‘d like to try not to be a lawyer for one second and just talk about right or wrong or fair or unfair. 

What we know is undenied is that Mr. Libby told people that Ambassador Wilson‘s wife worked at the CIA.  That is a classified fact that he should not have said, for the reason that he was trying to undermine the credibility of Ambassador Wilson, number one.

Number two, he concealed his doing that, even in the conversation reported by Judy Miller in the “New York Times” piece.  He held up documents to his chest.  He negotiated a identity that was misleading, a former Hill staffer, rather than an administration official.

And his boss, Dick Cheney, did not go public and directly confront Ambassador Wilson on the merits, instead of what we see the vice president so often do is a whisper out of the side of his mouth, hiding behind the cloak of anonymity. 

Something is wrong here.  We don‘t know why this leak occurred.  And I agree with everyone that these questions haven‘t been answered.  But the concealment and the conduct here strike me as wrong and unfair.  And President Bush should acknowledge that and apologize to Valerie Plame. 

COSBY:  Tucker, what do you think is behind all of this?  And do you think we ever will hear more from the president? 

CARLSON:  Well, look, let me just say, I‘m not flacking for Scooter Libby.  If the guy lied, he committed perjury, told untruths before the grand jury, he‘s in trouble and he ought to be. 

But all of this national security business is a handy dodge.  You can just say, “Oh, it‘s a matter of national security,” right?  “It‘s a secret.” 

Well, I‘ve lived here a long, long time.  Everybody here knows a lot of things that are officially secret.  And sometimes those secrets being revealed hurt America.  Often they don‘t.  But it‘s very easy for the federal government, various branches of it, to slap the label “Secret” on something for their own reasons. 

And so I think it‘s important for all of us to be satisfied that the leak of this information, in fact, hurt our country.  It‘s not enough to just smugly say, “Yes, it did.  We have a war on terror, and this hurts us.” 

Really?  How?  If you make that allegation, which is a very serious allegation, you should have to make it up.  And no one who has made it has had to back it up.  And I object to that.

And as to the whole why the whole White House leaked this, you know, there are probably a lot of reasons.  There‘s a very complicated relationship between CIA and the White House, as I‘m sure you know.  There‘s a lot of internecine and warfare there.

And, you know, in the end, it maybe proved that the White House did a dastardly thing.  And I will never defend dastardly acts, from them or anyone else.  But the first round ought to be people explaining why this hurt our country.

COSBY:  All right, guys.  That‘s going to have to be the last word.  Gentlemen, everybody, still with us.  We appreciate it.  We have a lot more after the break. 

Where does the investigation go from here?  Plus, one of the darkest weeks in President Bush‘s second term.  We‘re going to talk about how and if the administration can ever bounce back, when LIVE & DIRECT continues on this momentous day.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  While we‘re all saddened by today‘s news, we remain wholly focused on the many issues and opportunities facing this country.  I got a job to do.  So do the people that work in the White House. 

(END VIDEO CLIP)

COSBY:  So what‘s next for the CIA leak investigation?  Special Prosecutor Patrick Fitzgerald has made it clear this ain‘t over yet. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  This began as a leak investigation, but no one was charged with any leaking.  Is your investigation finished?  Is this another leak investigation that doesn‘t lead to a charge of leaking? 

FITZGERALD:  Let me answer the two questions you asked in one.  OK, is the investigation finished?  It‘s not over.  But I‘ll tell you this:  Very rarely do you bring a charge in a case that‘s going to be tried and would you ever end a grand jury investigation. 

I can tell you the substantial bulk of the work of this investigation is concluded.  This grand jury‘s term has expired by statute and could not be extended.  But it‘s an ordinary course to keep the grand jury open to consider other matters, and that‘s what we‘ll be doing. 

Let me then answer your next question.  Well, why does this leak investigation that doesn‘t result in a charge?  I‘ve been trying to think about how to explain this, so let me try.

I know baseball analogies are the fad these days.  Let me try something.  If you saw a baseball game, and you saw a pitcher wind up and throw a fastball and hit a batter right smack in the head and really, really hurt them, you‘d want to know why the pitcher did that. 

You‘d wonder whether or not the person just reared back and decided, “I‘ve got bad blood with this batter.  He hit two home runs off of me.  I‘m just going to hit him in the head as hard as I can.” 

You also might wonder whether or not the pitcher just let go of the ball, or his foot slipped and he had no idea to go any—throw the ball anywhere near the batter‘s head.  And there‘s lots of shades of gray in between. 

You might learn that he wanted to hit the batter in the back.  It hit him in the head because he moved.  He might want to throw it under his chin, but it ended up hitting him in the head. 

And what you‘d want to do is have as much information as you could.  You‘d want to know what happened in the dugout.  Was this guy complaining about the person he threw at?  Did he talk to anyone else?  What was he thinking?  How does he react?  All those things you‘d want to know. 

And then you‘d make a decision as to whether this person should be banned from baseball, whether they should be suspended, whether you should do nothing at all and just say, “The person threw a bad pitch.  Get over it.”

In this case, it‘s a lot more serious than baseball.  And the damage wasn‘t to one person.  It wasn‘t to Valerie Wilson.  It was done to all of us. 

As you sit back, you want to learn, why was this information going out?  Why were people taking this information about Valerie Wilson and giving it to reporters?  Why did Mr. Libby say what he did?  Why did he tell Judith Miller three times?  Why did he tell the press secretary on Monday?  Why‘d he tell Mr. Cooper? 

And was this something where he intended to cause whatever damage was caused? 

UNIDENTIFIED MALE:  Do you have any evidence that the vice president of the United States, one of Mr. Libby‘s original sources for this information, encouraged him to leak it or encouraged him to lie about leaking? 

FITZGERALD:  I‘m not making allegations about anyone that aren‘t charged in the indictment.  Now, let me back up, because I know what that sounds like to people if they‘re sitting at home.  We don‘t talk about people that are not charged with a crime in the indictment. 

UNIDENTIFIED MALE:  Is Karl Rove off the hook?  And are there any other individuals who might be charged?  You‘re saying you‘re not quite finished.  

FITZGERALD:  All I can say is the same answer I gave before.  If you ask me any name, I‘m not going to comment on any one name, because we either charge someone or we don‘t talk about them. 

(END VIDEO CLIP)

COSBY:  And next on LIVE & DIRECT, our panel is going to weigh in on where the investigation is heading.  Could this be the tip of the iceberg? 

Plus, a tough week for the White House, from Iraq to the Supreme Court.  What will it take to turn things around?

(COMMERCIAL BREAK)

COSBY:  Bad week for the White House, and a really bad day for Scooter Lewis Libby, who is, of course, the chief of staff for Vice President Dick Cheney.  So what is the White House going to do now? 

Let‘s bring back in our panel.  Let me start with Tucker. 

What do you think they‘re going to be doing now? 

CARLSON:  I think they‘re probably pleased.  I mean, this wasn‘t as bad as it might have been.  I mean, from my perspective...

COSBY:  Yes, it could have been a lot worse if it was Karl Rove, boy, right?

CARLSON:  I mean, it looks like a pretty much complete disaster to me, given all the other things, the 2,000 mark that we reached in Iraq this week, gas prices.... 

COSBY:  Harriet Miers. 

CARLSON:  Yes, it just goes on and on and on.  Harriet Miers is, actually, good news, I think, for the White House. 

But, look, it could have been worse.  And I think there are strong indications—and, you know, I‘ve been wrong many times before, and maybe I‘ll be wrong now, but that Karl Rove is not going to be charged in this.  So, you know, I think the White House is probably happy, perverse as that sounds. 

COSBY:  Lanny Davis, do you think Karl Rove is out of the woods quite yet?  I mean, if you listen to the words, it sounded like maybe if new information comes forward, that he might go after him.  It sounds like he hasn‘t closed the books totally. 

DAVIS:  First of all, if this is my last comment, I want to say I agree with most of what Tucker Carlson has said. 

COSBY:  Oh, I‘m shocked.  I‘m shocked to hear that, Lanny. 

DAVIS:  I don‘t want to ruin his reputation.  But, look, my observation, without knowing—and it‘s really something Mr. Fitzgerald knows more than all of us—is that Karl Rove did what most of us do when you‘re in the White House and you‘re trying to knock down a story, and you think you‘re dealing with information that‘s already out there. 

That to me is not a crime.  It may have been a political misjudgment.  In my opinion, it was a political misjudgment, with the wisdom of hindsight.  But I don‘t think, from my observation, that Karl Rove is guilty of a crime.

But Mr. Fitzgerald has really impressed me with how he went out of his way to emphasize the presumption of innocence and to try to stay much more restrained than most prosecutors at a press conference.  We‘ve got to leave it up to him to make that judgment. 

COSBY:  No, he was.  I will say, he was really sort of straight and narrow.  I was very impressed by sort of his equal justice principle, which was impressive.

Robert Ray, you know, you‘ve been in this seat before.  Reading the language that we heard from Fitzgerald today, is it over with yet?  Is it isolated to Libby?  What do you think? 

RAY:  I think you need to read the signals and weigh carefully what he said. 

COSBY:  What do you think? 

RAY:  I think he was sending a pretty strong signal that it‘s over with regard to Karl Rove, unless some extraordinary development occurs about which, you know, we obviously have, you know, no information. 

COSBY:  Jon Sale, do you agree? 

SALE:  No.  I think that, since Karl Rove also testified multiple times before the grand jury, he also is at risk for a perjury indictment.  Anyone who goes in three, four, five times, a prosecutor who is so inclined can find inconsistencies in those various appearances.

COSBY:  So, Jon, you think the door is still open there?

SALE:  Well, I take Mr. Fitzgerald at his word, that his investigation is not closed and the grand jury can be recalled or a new one impaneled. 

COSBY:  You know, Peter, let‘s talk about also the two scenarios.  Say Scooter Libby, say these things continue to go forward, again, it‘s in a presumption of innocence, but if it goes forward, he can either, a, cut a deal, or, b, it goes to trial.  That‘s not going to be pretty for the White House, right, Peter? 

BROOKES:  No, because that will put it back in the news once again.  Obviously it would be best if it just goes away and gets out of the news cycle.  But we‘re just going to have to see in the upcoming days and what else comes back into the news cycle in the future. 

COSBY:  Guys, real quick, I‘m going to go around the table and ask you how do you think this day is going to be viewed in history? 

Robert Ray, real quick?

RAY:  I think, if there was a cloud over the White House, it certainly lifted significantly.  And I agree with Tucker.  It could have been far worse.  They‘ll whether this storm, and the president struck the right note.  It‘s back to business.  These are serious times. 

COSBY:  Yes, absolutely. 

Tucker, five seconds, please. 

CARLSON:  I think Karl Rove is fine.  I think there‘s something weird going on with these charges against Scooter Libby.  They don‘t fully—they don‘t comport with what we know about Scooter Libby.  And I just think there‘s something else here.  So I don‘t think we‘re at the end.  I think we‘re probably at the mid-point at best. 

SALE:  It‘s not earth-shattering, because they have not charged anyone with illegal leaking or outing the agent.

COSBY:  Not another Watergate, as you were used to there, Jon, right? 

SALE:  Not at this point. 

COSBY:  Peter Brookes? 

BROOKES:  I think it‘s quite minor, despite all the taxpayers dollars that‘s been spent and the time and effort that‘s been put into it. 

COSBY:  Lanny Davis, you get the last word, my friend. 

DAVIS:  I agree with Tucker, but I come down, what did Dick Cheney know and when did he know it?  And journalists in this city tomorrow morning are going to try to find the answer to that question.  And at some point, Cheney is going to have to do a Geraldine Ferraro press conference.

COSBY:  We‘re going to be watching.  Guys, thank you, everybody.

And we‘re going to be right back.

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