To enter or not enter, that seems to be the question top Republicans in Congress were asking themselves this week as they protested against the FBI raid into Democrat William Jefferson’s congressional office. They say the executive branch went way too far. Now Republicans in Congress are angry that their leaders are defending a Democrat.
Washington attorney Bob Bennett joined Chris Matthews to discuss FBI raids and CIA leaks. He’s a former federal prosecutor and lawyer for former “New York Times” reporter Judith Miller, one of the journalists at the center of the CIA leak case.
This is a transcript of their conversation.
CHRIS MATTHEWS, HOST, "HARDBALL": You understand politics as well as the law. Why do you think the special prosecutor keeps circling the vice president? In the latest filings, for example, you’ve got a conversation, some dialogue with the vice president and his chief of staff, who has been indicted, talking about Valerie Plame over and over again, five times a day, an incessant conversation.
Why hasn’t the vice president been nailed yet as part of this problem?
BOB BENNETT, JUDITH MILLER’S ATTORNEY: Well, I don’t know, Chris, that the vice president is a target.
I think Fitzgerald is trying to undercut the defense that Mr. Libby’s lawyers have very publicly raised, that he didn’t really remember, he made a mistake. I think what Fitzgerald is trying to say, if the vice president was actively involved and told you to do some things and wrote notes on newspapers or whatever to give to you, that’s not something you’d forget.
So I think it’s really largely a tactical thing.
MATTHEWS: If the prosecution establishes that the vice president was all wired up on this thing, all upset about the charges made by Joe Wilson, all upset about the possibility that he could perhaps blame the whole trip to Africa on a junket and not be held responsible himself, does that prove that Scooter Libby, the chief of staff, lied?
BENNETT: No. I don’t think it proves it one way or another.
I think what we keep forgetting is it’s a very narrow charge against Scooter Libby, but the context of the charge is very broad.
MATTHEWS: Here’s what I don’t understand.
Scooter Libby is a pretty smart guy, he’s a foreign policy expert, he’s not only, you know, national security adviser to the vice president, he’s not only chief of staff to the vice president, he was assistant to the president. And here he is faced with knowledge, his own knowledge purportedly, I think reasonably to assume, he had seven conversations in which the evidence, knowledge of Valerie Plame’s identity at the CIA. And then subsequent to those seven conversations, he had a conversation with Tim Russert of NBC.
After seven conversations in which he shows knowledge to each of the other persons he talked to, of knowledge of Valerie Plame’s undercover identity at the CIA, he claims he learned that information from Tim Russert in a subsequent conversation.
That’s a pretty bold denial, isn’t it, or assertion?
BENNETT: Yes, and I can’t explain it.
I always say to clients when they come in, don’t flunk the investigation, you know. If much of what Mr. Libby is now saying he had said at the front end, we wouldn’t be here talking about it.
MATTHEWS: Do you have a sense that at the end of all this prosecution, whether or not it includes more than Scooter Libby, we’ll know what happened in the vice president’s office and in the White House in terms of trying to destroy the public testimony of Joe Wilson about the war in Iraq?
BENNETT: I don’t think so, Chris. The reason for that is when I appeared weeks ago before the district court on the motions, Judge Walton made it very clear a number of times to Mr. Libby’s lawyer that he wasn’t going to try a broader case, that he was going to try the narrow charges.
MATTHEWS: So we’ll simply find out whether someone perjured themselves or obstructed justice?
BENNETT: I think so.
MATTHEWS: We won’t find out whether the vice president’s office engaged in a cabal to cover up a bad case for war?
BENNETT: I do not think so.
MATTHEWS: So it’ll be very unsatisfactory as a mystery story in the end?
BENNETT: I think it will be very unsatisfying.
Where are we going to end up on the shield situation?
You’ve defended Judith Miller. “Time” magazine is now being asked to provide evidence to the court by the special prosecutor. “The New York Times” may well have to provide documentation.
Where are we at in terms of a reporter’s right to keep a secret relationship with a source?
BENNETT: Well, let me add to your litany there.
We on behalf of Judy Miller don’t have to produce anything. He granted our motion in its entirety. I think the reporters’ rights here are all but extinct.
MATTHEWS: Unless there’s legislation at this point.
BENNETT: Unless there’s legislation.
I think any legislation will have a number of qualifiers in it, a number of exceptions in it.
So I really think at the end of the day, reporters are going to have to depend on the good judgment of prosecuting authorities and judges not enforcing various requests for documents.
MATTHEWS: So if one of us says, I’ll keep it on background or I’ll keep it off, we won’t say who I got the information from, that we won’t be able to carry out that ourselves; we’ll still have to make it contingent on the courts obviously?
BENNETT: I think that that’s right.
I think one unfortunate thing about this case is this was not a very good case. You know, they say bad facts make bad law. The Supreme Court decided many years ago the issue and there has been some softening over the years by some courts, but this was not a good factual case to have the courts take a step back from the Supreme Court.
MATTHEWS: Do you think Ted Wells can get an acquittal here on Scooter Libby? Are juries in this city still predominantly Democrat and minority, anti-Republican?
BENNETT: No, it’s really changed a lot since I was a federal prosecutor. I think you have much more mixed juries here.
I don’t have much doubt that Scooter Libby will get a fair trial, but I do think they would be more Democratically oriented, and I think a jury here will be very troubled about the background noise of this case, the outing of an agent.
MATTHEWS: Yes, and also the war too.
By the way, I never thought I’d ask this, but I was fascinated by the front page of the newspaper today about the Enron case. Here’s a huge rich guy, who’s a friend of the president, Kenny boy, we know all that, sort of an iconic symbol of all the corruption in the corporate world, looting the business at the expense of the stockholders and the employees get stuck without pensions.
That jury certainly made a character assessment of these guys, didn’t it?
BENNETT: Yes, I have to be careful, because, you know, I represented Enron in the case, and fortunately, the Justice Department agreed not to charge the company.
MATTHEWS: Were you surprised by the jurors’ comments as they came out saying, I thought one guy was too much of a big shot, he was telling the courtroom how to behave; the other guy knew too much about accounting to be ignorant of the crime itself?
Very sort of "seat of the pants" kind of judgments about people.
BENNETT: Well, I think that’s what juries do, they do make seat of the pants judgments.
I think it’s very difficult for a CEO of a company or chairman of a board of a company with the sterling resumes and degree after degree and all sorts of business acumen to say, well, I didn’t know this or I didn’t know that or I didn’t think this was wrong.
I think what was more troubling to the jury from what I’ve read is one of the initial premises of the whole defense, which it did surprise me a little bit to be candid with you, because I did represent the company, was the assertion that nothing wrong occurred at all and that this was just the product of news reports and things like that.
MATTHEWS: I see. Too much noise there to believe that there was nothing there.
BENNETT: I think so.
MATTHEWS: Let me ask about this interesting supposedly constitutional case.
For some reason, the wagons are being circled on Capitol Hill to include Democrats and Republicans, people have got a real mess on their hands like Bill Jefferson with this, you know, the marked bills in the refrigerator. And they sting him and then they go prove they’ve stung him by going into his fridge and finding $90,000 in marked bills in his freezer.
Why do you think Hastert is standing up and how good a case does he have as speaker to say institutionally because of the checks and balances, you cannot have a raid on a congressman’s office?
BENNETT: Well, that’s just constitutionally absurd.
There’s nothing in the Constitution either under separation of powers or the speech and debate clause which prohibits the FBI, under the auspices of the Justice Department, from doing what they did.
One thing that I’m very concerned about is that this will be intimidation of the FBI and the Justice Department. And if they are to keep their credibility with the American people, they had better not capitulate on this one. You have several investigations taking place involving members of Congress and staff. And this would be a very bad precedent.
You know, the Supreme Court decided in the Brewster case, Senator Brewster in 1972 that bribery was not a part of the legislative process, and so I think these arguments are silly.
The final point I would make is Congress itself does a horrendously bad job in watching the ethics of its own people. The ethics committees or committees on standards, which have this responsibility, while they have some very good staff people, their hands are tied. It’s a laughing stock. I find it more of a political move than anything.
MATTHEWS: A safe harbor for Congress on Capitol Hill then, right?
MATTHEWS: All right. Thank you.
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