For the last two years we’ve been told over and over by media pundits and White House officials alike, “You can indict a ham sandwich.” This reference was again made concerning the October 28 federal indictment of the now former chief of staff to the Vice President Cheney, I. Lewis “Scooter” Libby, for obstruction of justice, the making of false statements and perjury.
Libby was indicted on charges that had little to do with the initial investigation. But it was that very investigation that connected Libby, other White House officials and certain news reporters to a possible crime. Why was the investigation initiated in the first place? Let’s cut to the facts. This investigation was begun to determine who had identified Valerie Plame as a CIA employee to reporters over two years ago. Valerie Plame was first identified as an undercover operative of the CIA in Robert Novak’s July 14, 2003, column. The act of identifying an undercover CIA agent is a violation of federal law. The particular law was written to basically keep CIA undercover operatives from revealing the identify of other undercover operatives, i.e., to keep a CIA covert agent from being “outed.” An “outed” undercover operative is rendered useless in her/his assignment and is in danger of being killed. Further, his/her assets and sources may be identified, compromised and endangered. Evidently Ms. Plame had not been overseas in any covert capacity for the past five years, suggesting that her assignment may have been more analytical than “Jamie Bond’ian” in nature.
No cover to be blown
As the above appears to be the case, it would be hard for Libby or anyone else to have “blown” Plame’s cover when, in reality, she had no cover. As an Army Intelligence Agent and an FBI Agent, I’ve worked in many countries and had contact with many CIA employees, some in deep cover and some who simply used the cover of working for another government agency other than “the Agency.” Evidently Department of Justice Special Counsel Patrick Fitzgerald came to the opinion that there was no evidence to suggest that Libby had “intentionally or knowingly” outed Plame, and in fact, no one has been charged with such an offense. Where Libby appears to have gone wrong is in his statements to FBI agents investigating the original allegation and in his testimony before a federal grand jury concerning this investigation.
You could come to the opinion that Plame’s husband, former U.S. Ambassador Joe Wilson, used his relationship with his wife to wrangle an assignment with the CIA to travel to Africa in 2002. He investigated reports that Iraq was attempting to acquire uranium, perhaps to further its attempts to build a nuclear weapon, a Weapon of Mass Destruction. Plame’s assignments have also included studying WMDs.
Wilson was touted as a hero when in 1991, while in the U.S. Embassy in Baghdad, he hid hundreds of Americans from Saddam. This was his job, but it was still a brave and gutsy thing to do.
Some suggest that Wilson’s African trip failed to reveal that Iraq had uranium, but others note that he did allow for Iraq’s attempt to obtain such material. That is, Wilson’s trip revealed that Iraq may have wanted to build “the bomb,” but they had not succeeded in obtaining the needed nuclear material (yellowcake) from the African country Niger. Wilson then writes an Op-ed for The New York Times accusing the Bush administration of manufacturing intelligence to support its claim of the significant threat that Iraq presented at that time — the run up to war. What has slipped between the lines of most newspapers is that in this article Wilson claimed Vice President Cheney sent on this mission. However, he was asked to take this trip, perhaps after lobbying by his wife, by some mid-level CIA bureaucrat without any knowledge of the VP. Allegedly, it was because of Wilson’s statements against the Bush administration that the information concerning his wife came out. Thus the story began, “administration officials, angry with Wilson, outed his wife, to ‘get’ him through his wife’s employment,” as least as some would suggest.
That may be true, but I can only look at this through the eyes of an investigator. Were I Wilson and had used my wife’s sensitive employment with the government to get such a special assignment, would I draw attention to myself, and to my wife, by going public in a national newspaper? If so, I’d have to take some level of personal responsibility for potentially exposing my wife to scrutiny from both the media and perhaps certain foreign intelligence services. I would never have done such a thing unless I was convinced that my spouse’s employment was so overt. That’s my conventional wisdom, and if I felt the need to become a whistle blower, I’d sure find a medium that would not endanger my wife, complicate her job or her life. But that’s me and Joe Wilson speaks for himself.
Lies, damn lies and really dumb lies
Next there’s the issue of “Scooter” Libby allegedly lying to the FBI in the course of the FBI’s investigation into the alleged outing of Plume. If this is the case, if Libby did lie intentionally, I think he should be indicted, tried, and convicted if his actual intent was to violate the law. After 25 years of conducting federal investigations, I know how I felt when someone lied to me in an official interview. First and foremost we wanted to get to the truth. Secondly, if you lied to us we still “got ya.” It amazed me for my entire career how suspects, subjects, or the currently politically correct term, “persons of interest,” will tell some story other than the truth. That simply gives the FBI something to dig into because it’s a violation of Title 18, U.S. Code, Section 1001 — a law that says it’s a violation of federal law to lie to an FBI Agent. Although not always charged, it is on the books for a good reason. There has to be some law against lying. When you swear to tell the truth it should mean something.
Libby is a lawyer (Columbia ‘75) and he, of course, was and is represented by legal counsel. How could someone so bright be so dumb as to set himself up for indictment by lying about things that could be proved otherwise, and then follow up such alleged lies by providing similarly alleged false testimony before a federal grand jury? If true, Libby shot himself not in just one, but in both feet. We have asked this question of Richard Nixon, Bill Clinton, and many other bright people who either intentionally lied, or otherwise tried to use their power and authority to twist the criminal justice system to suit their own will. Why didn’t Libby just say he didn’t know, or he had forgotten, or anything else other than telling certain stories that evidently have been proven false by the FBI?
It’s the above that continues to challenge me concerning smart people. Libby more than anyone should have known that the original substantive charge, the alleged outing of Valerie Plame Wilson, was one that likely could never have been proved. The initial hurdle of the criminal justice system, proving criminal intent on his part, apparently was just not there. By this, no one apparently “blew” Plame’s cover on purpose with the intent of causing her personal or professional harm, notwithstanding that many have reported that her husband had introduced her around Washington, D.C. as “his CIA wife.” After Bob Novak’s story, the CIA conducted a damage control survey concerning Plame. The results? No damage. Even Victoria Toensing, the attorney who wrote this law, has stated that it was never meant to include something like the case surrounding Plame, another fact that has been lost in the partisan politics that have seen some try to make this matter the moral and legal equivalent of Watergate.
“Scooter” Libby appears to be neither a “ham sandwich” nor a criminal, not yet anyway. His defense may be the “I was too busy to recall” defense, something that may in fact be partially, if not totally correct. The grand jury has been dismissed and the indictments are apparently over in this case. The “really big fish,” chief presidential political advisor and confidant Carl Rove seems to have gotten a pass. He probably made a last second appearance, one of perhaps five before the grand jury, the last of which may have corrected statements made by him before this same grand jury, statements that Libby apparently did not take the opportunity to correct.
Lessons learned
No matter what you do, do not misstate your case to investigators, the FBI, or to a grand jury. When the substantive case goes away, your lies or misstatements will still stand. They are the ones that can be proved false and they are the ones that can send you to jail. Libby is, of course, innocent until proven guilty, but some of his statements, like that of President Bush when he told us on January 28, 2003, that “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa,” may prove to be words that he may deeply regret. Remember what your mother told you when you were young, “If you don’t have anything good to say, don’t say anything at all.” Amazing isn’t it? All the lawyers in the world and mom still knows best.
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Clint Van Zandt is an MSNBC analyst. He is the founder and president of Inc. Van Zandt and his associates also developed , a Website dedicated "to develop, evaluate, and disseminate information to help prepare and inform individuals concerning personal and family security issues." During his 25-year career in the FBI, Van Zandt was a supervisor in the FBI's internationally renowned Behavioral Science Unit at the FBI Academy in Quantico, Virginia. He was also the FBI's Chief Hostage Negotiator and was the leader of the analytical team tasked with identifying the "Unabomber."