Libby's Innocent and the President Should Pardon Him

If the President hasn't already pardoned Lewis (Scooter) Libby, I beg him to reconsider and do so, for Libby is an innocent man.

Most of what people believe about the Scooter Libby case was proven wrong at trial.  Many wrongly believe: 1) Libby leaked the CIA employment of Valerie Plame; and 2) he then lied to cover his leaking. 

But Libby was acquitted of the only charge before the jury that he leaked her identity to reporters and lied about it.  In fact, the evidence at trial showed Libby did not disclose Plame's identity to reporters Robert Novak (Deputy Secretary of State Richard Armitage and CIA spokesman Bill Harlow did that), or Bob Woodward (Armitage, again), Walter Pincus (White House Spokesman Ari Fleischer did) or Matt Cooper (Karl Rove did that one).  In fact, on the only such charge submitted to the jury, the evidence established that Libby went out of his way to tell Cooper --when Cooper volunteered that he'd heard that Wilson's wife worked at the CIA -- he wasn't sure if that information was even true and the jury acquitted Libby on that count.

So Libby was not convicted of leaking, or of lying about what he told reporters.  In fact, the Judge found there was "no evidence whatsoever" that Libby ever understood that Plame's status was classified.  So it's hard to imagine what reason he would have had for lying about these conversations even if he had disclosed something about her. 

On what basis, then, was Libby convicted?  Libby was convicted for his recollection of what a reporter told him -- a part of a phone call with reporter, Tim Russert, in which the prosecution maintained Plame was never mentioned.

The Prosecution first claimed that Libby lied about his Russert conversation to conceal his real source -- the Vice President -- for the information about Plame.  This was what the Prosecutor, in his famous phrase, called "the cloud over the Vice President."  But the uncontested evidence at trial -- evidence that even the Prosecution admitted to be true -- demolished this claim.  Libby had told the investigators about his conversation with the Vice President from the very first time that he testified.  In addition, uncontested evidence at trial showed that just after he spoke to Russert, Libby had a separate conversation in which he learned that the media was talking about Plame's CIA employment.  So Libby had no need to make up anything about Russert.  The only cloud over the vice-president's office was the one the prosecutor put there to cover for the absence of any rational case against Libby or Cheney.

More fundamentally, the Prosecution had claimed that Libby lied about Russert because he had to make up a reporter who could be his source for the information he had supposedly leaked to reporters the next day.  But as I noted,   Libby was acquitted of the only charge that he had leaked anything to reporters the next day. Since he hadn't leaked to any reporter, he had no need to lie to conjure up a mythical press source. There was, in fact, a great deal of drama surrounding the testimony of one reporter (Judith Miller) but, and this is often neglected, the Judge threw out the only charge respecting her before the matter was handed over to the jury.  The Judge threw the charge out because, as he said, there was no evidence whatsoever to support it -- a fact known to the prosecution from the start.

It is true that Libby and Russert at trial had differing versions of their conversation. Both men were first asked about the conversation in the fall of 2003, several months after it occurred.  At that time, Libby believed Russert told him about Plame; and the FBI recorded Russert telling them that he could have told Libby (much as Libby recalled).   But at trial in 2007, Russert testified that he had not said that to the FBI and that he had not known about Plame when he spoke to Libby and so could not have told Libby.   There was plenty of evidence, however, that either Russert or Libby could be innocently wrong in their recollections months later of this brief call.  Russert also said he would have known about Plame and could have told Libby if his top reporters at NBC knew, and uncontradicted trial evidence proved that at least one of the Russert team did know prior to Russert's  conversation with Libby. Ari Fleischer testified without contradiction he had told one member of the Russert team.  Trial testimony also showed unequivocally that Russert's memory was dead wrong on a number of issues.

But Libby also argued persuasively that he could be innocently wrong. Uncontested evidence at trial showed that Libby had several conversations with other reporters who knew about Plame and were asking White House officials about her at the time.  Evidence at trial showed that Libby, months after the fact, could have innocently confused one of these conversations with his conversation with Russert.  Tragically, however, the jury never saw the most relevant evidence of all on this point.  Libby tried to introduce expert evidence about the frequency and causes of memory errors, a topic on which the scientific community has made great progress in recent years. A recent study done jointly by  professors at Harvard and  the University of Virginia has examined the phenomenon of the normal memory lapses of a person who isn't told until after he's heard something that the information is significant.  In a forthcoming article they describe their experimental observation that people's memories are less clear when their Motivation to Remember (MTR) -- their recognition that a particular fact is important -- only arises after the fact.  When others, such as juries, then examine testimony after the importance of a particular fact has been established, "they sometimes expect others to remember more than they possibly can."  The authors coin the term "The Scooter Libby Effect" to describe this phenomenon. ("Misconceptions of Memory: The Scooter Libby Effect," by Professors Daniel Gilbert of Harvard University, and Professor Timothy Wilson of the University of Virginia, accepted for publication in Psychological Science magazine.")

Yet, ironically, Libby was not allowed to call a single memory expert to testify in his defense.  After the trial, one juror even wondered why -- in a trial that was entirely about conflicting memories -- no memory expert had testified.

Equally damaging to Libby's defense was that he was not allowed to produce evidence on the riveting, complex and pre-occupying national security challenges that dominated his attention in the summer of 2003.  He was prevented from presenting this evidence either. In the absence of such information, as any memory expert would testify, no reasoned conclusion could be reached on whether he had a memory failure or not.

In sum, on the only charge of a leak which the jury considered (to Time's Matt Cooper) Libby was acquitted .The jury never found that he'd leaked Plame's identity to anyone. Nor was there any evidence of any rational motivation to lie on his part about any of the conversations into which the FBI or the grand jury was probing. There was a significant body of  evidence that, as with virtually every witness for the prosecution, Libby, too, may have -- many months  later -- innocently confused the substance of the Russert conversation with similar conversations with others in that same time period. But make no mistake about it:  This recollection of a conversation in which Wilson's wife was never mentioned by Libby (but may have been mentioned by  Russert) -- and which took place at a time when there was no reason to think, in any event, that such information was of the slightest significance -- is the entire basis for Libby's conviction.

Yet, because the prosecution constructed a case so complex that even the jury and the judge couldn't remember important facts -- and because the prosecution got away with making unproven and false allegations about the harm allegedly done to Wilson's wife -- an innocent man was convicted and the career of one of the Bush Administration's most dedicated public servants has been destroyed.  A pardon would at least repair some of the damage, although far from all of it.  For Scooter Libby's sake, and also for his own place in history, I hope the President pardons him before leaving office.
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