Materiality and Libby’s Indictment
Scooter Libby has been convicted of perjury for making false statements to a grand jury that was investigating whether someone had criminally leaked Valerie Plame’s identity to the public. It looks to me like he did make the false statements, and I would trust the jury on that. But is it a crime? I don’t see how it could be.
It is a crime only if the false statements were material to the investigation. They weren’t. Prosecutor Fitzgerald already knew that Richard Armitage had leaked Valerie Plame’s identity. He also must have known whether it was a crime to leak her name. He has not charged Armitage, so it must not have been a crime. In any case, the investigation had concluded its task, and Fitzgerald has not suggested that it had any other crimes to investigate. The grand jury’s job was over, though perhaps the jurors did not know it (I don’t know if Fitzgerald told them about Armitage). How, then, could Libby’s testimony have been material?
What the remedy should be is interesting from a procedural point of view. Libby did move to dismiss the indictment before the trial, but on different grounds. (The Justice Dept. has a good site with the indictment and other documents.) I suppose it is ordinarily too late to dismiss the indictment after a conviction. The grounds back then had to be different, though, because at that time Libby did not know that Fitzgerald knew that Armitage had leaked the information or that Fitzgerald had concluded that the leak was not criminal. Now Libby knows. Can he still move to dismiss the indictment?
Here is some of what the indictment has to say about purpose and materiality:
25. On or about September 26, 2003, the Department of Justice authorized the Federal Bureau of Investigation (“FBI”) to commence a criminal investigation into the possible unauthorized disclosure of classified information regarding the disclosure of Valerie Wilson’s affiliation with the CIA to various reporters in the spring of 2003. …
29. During the course of the Grand Jury Investigation, the following matters, among
others, were material to the Grand Jury Investigation:i. When, and the manner and means by which, defendant LIBBY learned that Wilson’s wife was employed by the CIA;
ii. Whether and when LIBBY disclosed to members of the media that Wilson’s wife was employed by the CIA;
iii. The language used by LIBBY in disclosing any such information to the media, including whether LIBBY expressed uncertainty about the accuracy of any information
he may have disclosed, or described where he obtained the information;iv. LIBBY’s knowledge as to whether any information he disclosed was classified at the time he disclosed it; and
v. Whether LIBBY was candid with Special Agents of the Federal Bureau of Investigation in describing his conversations with the other government officials and the media relating to Valerie Wilson.
Since Prosecutor Fitzgerald already knew all the facts about the alleged crime of leaking, isn’t statement 29 false? And isn’t making false statements in a court filing grounds for a lawyer’s being punished?
March 8. I found this at the Talkleft blog, comments section:
“To be convicted, the jury must find both that Libby intentionally lied and that his lies were material to the criminal investigation.”
Fitz argues in his instruction brief that the test for false statements should be:
O’Malley § 40.07, as proposed by the government:
1. That Mr. Libby knowingly made a false, fictitious or fraudulent statement;
2. That Mr. Libby made the statement willfully, that is, intentionally, knowing that it was false;3. That the statement was made in a matter within the jurisdiction of the FBI;and
4. That the statement was material, that is, that it had the effect of influencing
the decision or actions of the FBI, or was capable of or had the potential to do so.For the perjury charge, Fitz argues the test should be:
1. That Mr. Libby made a statement before the grand jury while he was under oath;
2. That such statement was false in one or more of the respects charged;
3. That Mr. Libby knew such statement was false when he made it; and
4. That the false statement was material to the grand jury’s inquiry, that is, that it had the effect of influencing the decision or actions of the grand jury, or was capable of or had the potential to do so.
That complicates things further. Libby couldn’t have influenced the decision of the grand jury, since it turns out there was no crime for them to charge, but it did affect their actions if the prosecutor had kept the facts from them. In fact, it could even affect their actions if they knew there was no crime, since their objective might be, for example, to try to entrap witnesses and create crimes rather than to do their job properly. I think the instruction is wrong– materiality should only apply to relevance to some crime, either that being investigated or some other that the grand jury might stumble upon.
Also, noeasyanswer has a thorough link page for the pleadings in the case. I’ll look at it- it may well answer my questions.
March 11:
NoEasyAnswer and Beldar have long posts with lots of comments on the materiality question. Neither of them come to grips satisfactorily with the question of whether a witness’s lie is material if the prosecutor already knows that no crime was committed.
March 17th, 2007 at 5:19 am
– whether a witness’s lie is material if the prosecutor already knows that no crime was committed. –
I’ve come to grips with it, albeit not satisfactorily to you.
In order to come to grips with it, you need to accommodate three separate notions. One, the existence of an investigation into an illegal leak. This first item presupposes that the investigation is legitimate. It is at this point that most “objectors” raise the issue of materiality. There should be no inquiry at all, if there is no crime.
But don’t blame Fitzgerald just yet. And an investigation there was, first commissioned by Ashcroft and the Department of Justice, then later, the testimonial evidence was passed to Fitzgerald.
That Libby answers are “material” to the inquiry as to whether or not Libby was a leaker, I think there is no question. And at the time Fitzgerald came to the scene, the investigation has already produced testimonial evidence.
The second notion is an evaluation as to whether or not there has been a leak crime. The third notion is an evaluation as to whether or not there has been a crime in giving statements to investigators.
If the investigator sees a crime as to the third point, his opinion is that a crime has been committed. Is it the crime that was the subject of the initial investigation? No. It is a different crime, the crime of giving false statements to investigators. So Fitzgerald doesn’t come on the scene and conclude “no crime.” He concludes “different crime.”
Now, I don’t doubt that this explanation also fails to meet your criteria for satisfactorily coming to grips with the question of whether a witness’s lie is material if a prosecutor (quote) “already knows no crime has been committed.” But I have no doubt that your position amounts to countenancing lying to investigators.
So, the next time you feel the urge to complain because somebody lied to an investigator, stifle your complaint until you can prove the rest of the elements to the crime.
March 17th, 2007 at 10:43 pm
It’s not quite on point, but in fact I don’t complain about people lying to investigators. I think the “Don’t lie to FBI agents” statute is both unjust and unwise. It is unjust because people do not know it is a crime, since there is no swearing-in as in legal proceedings, and most lies, even though material, are trivial. This gives the government too much power to selectively prosecute. It is unwise because the result of the statute is not to make uncooperative people tell the truth. Either they don’t know about the statute and lie anyway, or they do, and they refuse to talk to the FBI, which they have every right to do. I would much prefer a statute requiring people to talk to the FBI but permitting them to lie. The FBI ought to be able to get useful information from an interview even if they know the defendant might be lying.
March 17th, 2007 at 10:47 pm
Below is a chronology of dates (taken from the bigger chronology, with sources, at DKosopedia) relevant to how much the government knew about the leak at the time Libby was investigated. On July 8, 2003 Armitage told Novak about Valerie Wilson, and Novak wrote about her on July 14. The Justice Dept. opened an investigation on September 26. Armitage told people at the State Dept. that he was leaked to Rove on October 1, and that same day they told people at the Justice Department. A team of FBI agents and prosecutors interviewed Armitage the next day. 12 days later, on October 14, they interviewed Libby for the first time. Fitzgerald was appointed as prosecutor on December 30. Libby came before the grand jury for the first time on March 5, 2005.
The chronology below must not be taken as gospel truth, especially the parts dealing with Armitage. He says he only realized he was the leaker on October 1, after reading a Novak column that elaborated on the leaker’s characteristics. That seems incredible to me. More likely, he heard about the investigation that had started 5 days before he and decided to come clean. Tom Maguire brings up another possibility: that Armitage had also leaked to Judith Miller, who is used to dealing with State Dept. sources. (I do hope Libby’s lawyer cross-examined Judith Miller and asked if she had heard about Valerie Wilson from someone else before she talked to Libby. The prosecutors had made a deal with her that they would ask her only about Libby, not about other sources.)
I think now it is possible that the Libby FBI interview was material to the investigation. Maybe it covers even leaks that do not become public, and maybe Valerie Wilson was a covered person, and maybe it required knowledge of covered person status and malicious intent that Armitage did not have but Libby might have had (though Libby’s leak did not result in any public disclosures, so the malice was ineffective, if it was indeed present). But I would challenge the prosecutors to demonstrate these things, even by a mere preponderance of evidence, or even as conjectures plausible at the time.
If the Libby FBI interview was material, then his lies there would be a crime under the legal if unjust “Martha Stewart” statute, and his grand jury appearance later would be material to investigating the lies to the FBI.
What is below is quotation from DKosopedia , with many entries removed from the chronology there, a couple of additions, and not the links DKosopedia has to sources.
March 17th, 2007 at 10:54 pm
[…] I’ve just updated my Libby and Materiality entry extensively, in the comments section, including there a chronology of the events. […]