Comey's Prosecution of Scooter Libby Leaves 'Truth' and 'Leadership' Behind

By VICTORIA TOENSING
April 25, 2018
TheHill.com

James Comey’s memoir, “A Higher Loyalty,” is subtitled “Truth, Lies, and Leadership.” His chapter discussing the prosecution of Scooter Libby, a case I know much about, is replete with factual distortions, omissions of material facts and a misunderstanding of the law. Perhaps “truth” and “leadership” should be deleted from the subtitle.

Comey asserts that newspaper columnist “Robert Novak had revealed the name of a covert CIA employee” in July 2003. When Novak published Valerie Plame’s name and her relationship to the CIA, she was not “covert,” a term specifically defined in the relevant statute. I drafted and negotiated the elements of that law when I was chief counsel for Senate Intelligence Committee chairman Barry Goldwater (R-Ariz.). Plame did not fulfill the requirement that she had to be “serving outside the United States” or had done so “within the last five years.”

The media furor that flowed from Novak’s column was really all about where a person stood on the Iraq war, as it was claimed that Bush administration officials disclosed her name in retaliation for an op-ed piece by her husband denying that Saddam Hussein attempted to acquire nuclear material. Libby and his boss, Vice President Dick Cheney, were anathema to those opposing the Bush war policy and, thus, to the media, which contrary to their own interests, called for prosecution of the “leaker.”

John Rizzo, then CIA general counsel, wrote in “Company Man” that he “dutifully” sent an obligatory “crimes report” to the Justice Department, expecting it to “do little or nothing.” Key to his attitude was that “there was no evidence indicating that any CIA source or operation — or Plame herself, for that matter — was placed in jeopardy as a result of the ‘outing.’ ” He noted that it appeared “dozens if not hundreds” knew she was an agency employee.

Comey was deputy attorney general on the receiving end of the perfunctory referral. He writes that proving the “crime” was “unlikely” because the law requires that the disclosure be done with a “specific and evil intent.” He also knew Richard Armitage (then deputy secretary of State and a darling of the media because he hampered President Bush’s Iraq policy) was the person who leaked Plame’s name to Novak because Armitage freely admitted it to the Justice Department.

Even though Plame was not “covert,” even though Comey knew who committed the non-crime, and even though he knew there was no basis for evil intent, Comey appointed his friend Patrick Fitzgerald, then U.S. attorney for Chicago, as special counsel. Although there was no way to prove an underlying crime, they were going to subject numerous people to years of stress, public vilification and attorneys’ fees. Comey remained the supervisor for the sham investigation.

Chapters later, Comey casually mentions that when he was U.S. attorney for the Southern District of New York, Libby was a “prominent” lawyer for Marc Rich, who President Clinton pardoned after receiving from Rich’s ex-wife $450,000 for the Clinton Library and $100,000 for Hillary’s U.S. Senate campaign. What he doesn’t mention is something that was discussed in Washington legal circles at the time: that he and Fitzgerald were furious with Libby — who had written the brief arguing that Rich had not violated U.S. tax laws, the basis for granting the pardon — when the two friends worked on Rich’s fugitive status as assistant prosecutors in the same office.

Comey writes that “at least three, and as many as six, Bush officials” had discussed Plame with reporters. It is only the first — Armitage — who matters, however. Additional conversations were reporters seeking confirmation, which is what happened with Libby. Significantly, because Libby had no knowledge of Plame’s status, he could not and did not verify it.

Without any corroborating evidence, Fitzgerald indicted Libby for his recollection — months after the conversations — that he had not revealed or confirmed Plame’s status with Time magazine’s Matt Cooper and the New York Times’s Judith Miller, when they recalled otherwise. Libby also recalled NBC’s Tim Russert raising Plame’s name with him; Russert, who at first agreed with Libby, later changed his testimony, claiming that although he could not recall the words specifically, he was sure Plame was not discussed. It was a prosecution based solely on differing memories.

Comey did not reveal that, prior to indictment, Libby’s lawyer was told by the special counsel that if he had any criminal information about Cheney, he would not be prosecuted.

Comey writes: “More evidence revealed that Libby had proactively discussed the CIA employee with reporters, at the vice president’s request.” Never happened. And he cites no evidence as support. Not one reporter or witness testified that Libby brought up Plame’s identity. In fact, the trial record shows Libby talked to roughly 10 reporters in the relevant time period before Novak’s column and had not discussed Plame with any. The issue was whether he discussed it when a reporter brought it up after publication.

Fitzgerald, ignoring the CIA assessment of no damage, misled the jury by arguing that revealing Plame’s intelligence relationship could point hostile intelligence services at CIA personnel: “They could arrest them. They could torture them. They could kill them.”

Libby was acquitted of certain charges but convicted on counts where Miller’s trial testimony was key. She “was the only journalist who testified that Libby had talked about Plame,” Miller wrote in a 2015 chronicle of her journalistic career, “The Story." In that book, Miller recanted her testimony inculpating Libby, explaining that Fitzgerald had kept from her material information causing her to misinterpret her notes. “Had I helped convict an innocent man?” she wrote after realizing that Libby had not discussed Plame with her.

Based in part on this recantation, the D.C. Court of Appeals unanimously reinstated Libby’s law license finding that he had presented “credible evidence” in support of his innocence. Comey does not mention her recantation or the reissuance of Libby’s law license on the basis of “credible evidence."

As Rizzo wrote about the Plame/Libby case: “The crimes reporting process had never been trivialized and distorted like that in all my years at the CIA.” The wrongful prosecution of Libby was not based on “truth” and denotes a failure of “leadership” by Comey, who claims both but in this case demonstrated neither.

Victoria Toensing, a founding partner in diGenova & Toensing, LLP, was Mr. Libby’s pardon Attorney.