Will Bush Pardon Scooter Libby?

Maybe you are thinking that Special Counsel Patrick Fitzgerald's case against Scooter Libby is yesterday's news, or, worse, in its last throes. Think again.

It has recently come to my attention that the title of the Ukrainian national anthem is "Ukraine Is Not Dead Yet." (Seriously, it is.) The same could be said of Special Counsel Patrick Fitzgerald's ongoing prosecution of Vice President Cheney's former aide I. Lewis "Scooter" Libby: The case -- involving charges of perjury, false statements, and obstruction of justice in connection with Fitzgerald's investigation into the unauthorized disclosure of the identity of former Ambassador Joseph Wilson's wife, Valerie Plame, as a CIA operative -- is not dead yet, nor is it even ailing.

U.S. v. Libby is Alive and Well

U.S. v. Libby is not only alive and well; it is also set to begin on January 16, 2007, just three and a half months from now. In June, the defense requested a one-month continuance, but U.S. District Judge Reggie Walton responded by granting a mere one-week extension and reiterating that pretrial filings had to be submitted by both parties in mid-November 2006.

Indeed, a review of court documents makes it abundantly clear that Judge Reggie Walton has no intention of letting this matter laze around on his docket. Filings in the case make it no less clear that Lewis Libby's opportunities to make the charges go away by exercising his rights within the judicial system are dwindling rapidly. Early on, Walton ruled that any motions to dismiss that the defendant wished to bring should be filed by February 24, 2006. Libby's attorneys filed one such motion and it was denied.

In that motion, Libby's defense team argued that the case should be dismissed because it was "obtained, approved and signed by an official -- Special Counsel Patrick J. Fitzgerald -- who was appointed and exercised his powers" in violation of the Constitution. Without getting too technical, the defense argument was that Fitzgerald was taking actions that could only be taken by a presidential appointee. This was essentially a more lawyerly version of accusations the Republican National Committee (directly tied into the Bush administration's political arm, the Office of Strategic Initatives) had begun hurling even before Libby's indictment. In various veiled -- and sometimes not so veiled -- attacks, they argued that Patrick Fitzgerald was "overzealous" and had exceeded his authority by bringing perjury and false-statements charges when he was, according to the Libby defense team and the RNC, only authorized to investigate the possible unauthorized disclosure of a CIA officer.

Not surprisingly, Judge Walton was unimpressed with Libby's motion. He ruled that it was perfectly appropriate and prudent for the Department of Justice to appoint someone outside the hierarchy of the Executive Branch when its highest officials were under investigation. He also said that Fitzgerald's letters of authority "unambiguously" authorized him to investigate and prosecute not only the disclosure of a CIA employee's identity, but also "any violations of federal law that arise during the course of that investigation."

Hoping that Graymail will be a Silver Bullet

Libby does, however, have one other hope for dismissal of the charges prior to trial: graymail -- a defense tactic so named because it is a subtle form of blackmail that forces a prosecutor to choose between disclosing highly classified information and continuing to proceed with a case. Such a tactic can be particularly effective when, as in this case, White House officials, who guard the classification system, would be as happy as clams if the whole case went away.

This is what has happened so far: In March, based on Libby's expressed intent to argue that he made false statements during the investigation because he was preoccupied with national security matters, Judge Walton ordered the government to produce -- for certain weeks in 2003 and 2004 -- a list of topics covered, and inquiries made by Libby, in his morning intelligence briefings. In effect, Judge Walton ordered the government to turn over tables of contents; he did not order it to disclose any substance contained within a classified document.