A glorious campaign for reporters’ rights had ended up as a bitter family fight—poisoned by Miller’s prewar reporting.
ON THE morning of October 28, 2005, Bush delivered a speech on the war on terrorism to a group of 2,500 military members and local business and political leaders in Norfolk, Virginia. No tickets for the event had been made available to the general public. The number of American troops killed in Iraq had recently topped 2,000. Public opinion polls showed support for the war weakening. And in the wake of the administration’s ineffective response to Hurricane Katrina, the withdrawal of the underwhelming Harriet Miers as a Supreme Court nominee, and the collapse of Bush’s campaign to privatize a portion of Social Security, the president’s approval rating had fallen below 40 percent—then a record low for his presidency. (Within days, a CNN/USA Today/Gallup poll would find that 53 percent believed that the Bush administration had deliberately misled the public about Iraq’s weapons of mass destruction—an increase from a year earlier—and a Washington Post poll would report that 58 percent doubted Bush’s honesty, the first time a majority of Americans questioned his integrity.) As Bush took the stage, he half joked, “It’s good to be out of Washington.”
His forty-minute-long speech was a full-throttle defense of his Iraq policy. The mission in Iraq, he said, was to defeat anti-American terrorists in league with (the still-at-large) Osama bin Laden. “We must recognize Iraq as the central front in our war against terror,” he said. Even though experts in and out of the government were suggesting that the Islamic jihadists in Iraq affiliated with al-Qaeda made up only a small slice of the insurgency, Bush equated the entire insurgency with bin Laden’s murderous band. He referred to Iraq as “the heart” of power for al-Qaeda and its allies, and he suggested that if the United States were to disengage in Iraq, bin Laden would be “in control of Iraq.” (He was ignoring the Sunni, Shiite, and Kurdish forces.) He noted that “progress isn’t easy, but it is steady.” And Bush declared, “We will never back down, never give in, and never accept anything less than complete victory.”
He received a long standing ovation.
THREE and a half hours later, Patrick Fitzgerald came to the podium in a conference room at the Justice Department. Scores of reporters and dozens of cameras were present. Next to him was FBI Special Agent Jack Eckenrode. That morning, the grand jury in the CIA leak case had issued a five-count indictment against Scooter Libby, charging him with one count of obstruction of justice, two counts of perjury, and two counts of making false statements. The indictment accused Libby of having lied during his interviews with FBI agents and his two grand jury appearances about his role in the leak and his conversations with Tim Russert, Matt Cooper, and Judy Miller.
The indictment revealed some of what Fitzgerald had uncovered: that Libby had obtained information from the CIA about Valerie Wilson; that Cheney had told him that Joe Wilson’s wife worked at the CIA’s Counterproliferation Division; that Libby had disclosed the CIA connection of Wilson’s wife to Miller and confirmed it to Cooper; that Russert had contradicted Libby’s claim that he (Libby) had learned about Wilson’s wife from the Meet the Press host. The indictment asserted that Libby had talked to “Official A”—a “senior official in the White House,” who soon would be identified as Karl Rove—who had acknowledged speaking about Wilson’s wife with Bob Novak before the leak story ran.
The indictment indicated that Libby had discussed Wilson’s wife with no fewer than eight U.S. government officials, including Cheney; David Addington, Cheney’s chief counsel; and White House press secretary Ari Fleischer; as well as Rove—and all this before he had spoken to Matt Cooper on July 12, 2003 (when, Libby claimed, he had told the Time reporter he didn’t even know that Joe Wilson had a wife). Given the number of witnesses, Fitzgerald’s indictment presented a strong case that Libby had lied. And it undercut the administration’s claim that the White House hadn’t been involved in the leak. It suggested that Libby and Rove had been at the center of it. Conspicuously absent from the indictment was any allegation that Libby, or anyone else, had violated the Intelligence Identities Protection Act, the law banning the disclosure of the identity of covert CIA officers. The strict standard of the law—that the violator had to be aware of the covert status of the officer—was difficult to prove. Nor were there any charges against Rove, Matt Cooper’s original source about Valerie Wilson, or against Richard Armitage, who had gotten the whole thing rolling by talking to Novak.
The prosecutor began with an opening statement noting that Valerie Wilson’s status as a CIA officer was “classified” and “not widely known outside the intelligence community.” Realizing that some of his critics had claimed no law had been broken in the outing of Valerie Wilson, he said, “It was known that a CIA officer’s identity was blown, it was known that there was a leak. We needed to figure out how that happened, who did it, why, whether a crime was committed, whether we could prove it, whether we should prove it.” And in such an investigation, he said, it was crucial that witnesses tell the grand jury the truth. “Given that national security was at stake,” Fitzgerald said, “it was especially important that we find out accurate facts.” Libby, he said, had impeded this investigation by telling a false cover story. That was why he had been indicted.
Then Fitzgerald took questions. Was the investigation finished? “The substantial bulk of the work in this investigation is concluded,” he said. Was this another case of a leak investigation that did not end with a leak prosecution? Fitzgerald argued that the charges he had filed against Libby were as serious as leaking. Had the vice president encouraged Libby to leak or lie? “We don’t talk about people that are not charged with a crime in the indictment,” Fitzgerald replied. Is Karl Rove off the hook? Same answer. Fitzgerald wouldn’t answer questions about what damage had been caused by the outing of Valerie Wilson or whether Novak had cooperated with the investigation. Would he be issuing a final report explaining what he had uncovered? “I do not have the authority to write a report.”
One reporter asked Fitzgerald if the Libby indictment was a “vindication” of the “argument that the administration took the country to war on false premises.” Fitzgerald gave a firm reply: “This indictment is not about the war…. This is simply an indictment that says, in a national security investigation about the compromise of a CIA officer’s identity that may have taken place in the context of a very heated debate over the war, whether some person—a person, Mr. Libby—lied or not. The indictment will not seek to prove that the war was justified or unjustified…. I think anyone who’s concerned about the war and has feelings for or against shouldn’t look to this criminal process for any answers or resolution of that.”
PATRICK FITZGERALD was right. The indictment was not about the war. It was not even about the leak. But it was about a lie. And that lie had come about because the most senior officials of the White House, including Bush and Cheney, had been determined to counter the claim that they had misled the nation into a war that had not gone well. They refused to concede that they had misrepresented the intelligence and had hyped the threat to win public and congressional approval for the invasion of Iraq. And in all the time since Bush had told the American public that there was “no doubt” that Saddam Hussein posed a pressing WMD danger to the United States, there had been no official scrutiny of the administration’s use of the prewar intelligence. The selling of the war had escaped investigation.
THAT day, Scooter Libby resigned his post in Cheney’s office. The vice president released a statement calling him “one of the most capable and talented individuals I have ever known.”*89 The White House sent a memo to staffers reminding them not to talk about the ongoing leak investigation.
Bush watched the first fifteen to twenty minutes of Fitzgerald’s press conference in his private dining room. Shortly after the prosecutor finished, the president spoke for two minutes on Libby’s resignation. He noted that “we’re all saddened by today’s news”; but, he added, “I got a job t
o do.”
Afterword: No Regrets
LATE ON the afternoon of June 12, 2006, Karl Rove was sitting in a plane at Baltimore/Washington International Airport, heading toward Manchester, New Hampshire, when he received an e-mail on his BlackBerry from his lawyer: FITZGERALD CALLED. CASE OVER. After investigating Rove for nearly two and a half years and calling him before the grand jury five times, Patrick Fitzgerald had determined that he didn’t have enough evidence to indict the White House aide for perjury, obstruction, or any other crime in connection with the leak of Valerie Wilson’s CIA identity. Rove was a free man. When he arrived in New Hampshire, he was relieved—and pumped.
Rove had come to the Granite State to be the star attraction at a fund-raising dinner for the local Republican Party. His talk that night was vintage Rove, only more so—a nasty, polarizing speech that blasted Democratic critics of the war. Rove assailed not just Senator John Kerry (whom he and Bush had vanquished a year and a half earlier) but also Representative John Murtha, a longtime Democratic hawk who had initially supported the war but was now calling for withdrawing U.S. troops. “They are ready to give the green light to go to war,” Rove said of Kerry and Murtha, “but when it gets tough, and when it gets difficult, they fall back on that party’s old pattern of cutting and running. They may be with you at the first shots, but they are not going to be with you for the last, tough battles.” If Murtha’s advice was followed, Rove declared, Iraq would become “a launching pad for the terrorists to strike the United States and the West.” He added, “We were absolutely right to remove [Saddam] from power and we have no excuses to make for it.”
Unencumbered by worries of indictment, Rove was dipping into a familiar playbook. Ever since September 11, he had sought to divide the electorate on the national security issue and exploit the public’s fears for the president’s benefit. With polls showing support for the Iraq War steadily sinking, Rove was seeking to redefine the debate for the fall congressional elections—once again casting the Democrats as untrustworthy custodians of the public safety. But in going after Murtha and depicting him as a pusillanimous “cut-and-run” man, Rove was being especially audacious. As a young man, Rove had escaped the Vietnam draft with a student deferment (even though he was for a period only a part-time student at the University of Utah). Now he was impugning the moral courage and commitment of Murtha, who had served thirty-seven years in the Marines and had been decorated for valor in combat. Rove wasn’t just countering a policy critique of the war; he was seeking to delegitimize another Iraq War critic. This was the sort of conduct that had gotten Rove, Libby, and the White House into trouble in the first place.*90 The speech was a clear sign that Bush’s number one aide was unrepentant—about the war, about the leak, about how he and the White House played politics, about everything. He had good reason to be. As the Associated Press’s Pete Yost noted in a story the next day, “The decision not to charge Karl Rove shows there often are no consequences for misleading the public.”
THE previous October, shortly before Fitzgerald indicted Libby, the prosecutor had been close to indicting Rove for perjury stemming from his initial testimony, in which he had denied talking to Matt Cooper about Valerie Wilson. Fitzgerald visited the Washington law offices of Luskin. He told Luskin he was considering bringing charges, Luskin later said. But the ever-facile lawyer presented an explanation that saved Rove.
The key issue for Fitzgerald and his investigators was why Rove had changed his testimony. He had first told the grand jury in February 2004 that he hadn’t had any conversation with Cooper about Valerie Wilson. Then, eight months later, he had handed over an e-mail showing that he had talked to Cooper about the Wilson affair (though he still claimed not to recall this phone call). Trying to explain this away, Luskin told Fitzgerald about his occasional chats over drinks at a Washington restaurant called Cafe Deluxe with Viveca Novak, a seasoned reporter at Time. (She is no relation to Bob Novak.)
During one of these conversations, Luskin had said to her, “Rove doesn’t have a Cooper problem”—meaning Rove hadn’t been Cooper’s source. “That’s not what I hear,” Novak shot back. It was a casual if careless remark, for Novak figured Luskin was spinning her and that he had to know his client had talked to Cooper. Luskin, though, was surprised by Novak’s comment. He ordered Rove’s aides to check Rove’s computer for any e-mails containing a reference to Cooper or Time. It was only then that the e-mail Rove had sent to Hadley after talking to Cooper—which noted that Rove had spoken to Cooper about the Wilson matter—had turned up, Luskin subsequently said. It had been missed in an earlier White House search. And, according to Luskin, it was this e-mail that had prompted Rove to acknowledge the conversation he had forgotten about.
This was the e-mail that had been printed out by a Rove aide on November 25, 2003. Luskin claimed that his critical conversation with Viveca Novak had occurred in October 2003. That made sense: an October conversation had led to a November search. But if Luskin and Rove had the Hadley e-mail in hand in November 2003, why did Rove wait nearly a year to turn this important evidence over to Fitzgerald? (The subpoena Fitzgerald had sent to the White House certainly covered this e-mail.) And if the e-mail had been found and given to Luskin in late November 2003, why did Rove, at his first grand jury appearance three months later, not disclose at that point that he had spoken to Cooper?
According to another lawyer representing a White House witness in the leak case, Luskin’s explanation was this: Rove’s office had given Luskin a folder full of e-mails that included the one Rove had sent to Hadley. But Luskin hadn’t noticed the important Hadley e-mail until October 2004, just before Rove was about to go back to the grand jury for the third time (and right after Matt Cooper had been held in contempt for the second time). Preparing for Rove’s return to the grand jury—and aware of Fitzgerald’s renewed interest in Cooper—Luskin looked closely through the file he had gotten from Rove’s office. Luskin later admitted he might have screwed up, the attorney said. His mistake: missing the Hadley e-mail before Rove’s first grand jury appearance in February 2004. In other words, a careful Washington defense lawyer who had been assiduous enough to ask for a search of his client’s computer had overlooked a crucial piece of evidence—and did not realize he had had it in his possession for almost a year. Was this plausible? A question for Fitzgerald was whether Luskin had really screwed up or was covering for his client.
There was another problem with Rove’s defense. When Fitzgerald brought Viveca Novak before his new grand jury in the fall of 2005, he discovered there was a conflict between her account and Luskin’s. She recalled that her key conversation with Luskin had occurred in March or May 2004, months after the Hadley e-mail had been printed out of Rove’s computer.*91 Though she couldn’t remember which month it had been—were you wearing an overcoat? Fitzgerald had asked her—Novak was certain it had happened after her October 2003 meeting with Luskin and no earlier than a January 2004 get-together at Cafe Deluxe. Novak’s testimony suggested that her conversation with Luskin about Cooper hadn’t precipitated Luskin’s request for a search of Rove’s computer—for it had occurred after the search. This undermined Luskin’s complicated argument for Rove’s innocence.
Trying to sort all this out, Fitzgerald called Rove back for a fifth grand jury appearance in April 2006. Once again, the issue was whether Rove had really forgotten about his conversation with Cooper or not—whether he had been truthful during his first two grand jury appearances.
Whatever his suspicions about Rove’s account, Fitzgerald was a professional who would not indict a suspect unless he believed he could establish guilt beyond a reasonable doubt. And perjury is notoriously difficult to prove, especially when a witness claims he or she had forgotten a conversation. Rove hadn’t told the grand jury about his conversation with Cooper at first—purposefully or not. But he then came forward with the incriminating Hadley e-mail and conceded he must have talked to Cooper. Fitzgerald didn’t have a parade of witnesses contradicting
the White House aide’s account—as he did with Libby. Though Luskin’s explanation was murky—and inconsistent with Viveca Novak’s account—it could create a reasonable doubt in the minds of a jury. After hearing from Rove this fifth time, Fitzgerald concluded he didn’t have a case to make.
As for the leak itself, Fitzgerald never seriously considered bringing a case against Rove under the law that much of the media had focused on: the Intelligence Identities Protection Act. To win a conviction, Fitzgerald would have had to establish that Rove had been aware that Valerie Wilson was a “covert” CIA employee, and demonstrating state of knowledge is often a difficult task for a prosecutor. Fitzgerald and his team did seriously consider using a vaguely worded provision of the Espionage Act, a World War I–era statute that makes it a crime to communicate any information relating to the “national defense” to any person not authorized to receive it. (The law also has a provision that allows government officials to be charged for “gross negligence” for failing to protect national defense information with which they have been entrusted.) But that law had rarely been used, and some legal experts worried that doing so in this case could create a dangerous precedent. It would effectively turn the archaic statute into a de facto Official Secrets Act—the law in Great Britain that makes it a crime to disclose any classified information. That would be a major and disturbing development, both for the news media and for the public. It would have a chilling effect on investigative reporting relating to national security and government excesses and abuses. In the end, Fitzgerald chose not to take that road.
Still, the basic facts were not in dispute. In his zeal to defend the Iraq War and tear down a critic of the president, Rove had confirmed a leak of classified information to Bob Novak and then had offered the same information about Valerie Wilson’s employment at the CIA to Matt Cooper. He had done so with relish. Valerie Wilson was “fair game,” Rove had privately remarked to Chris Matthews. Then he and the White House had falsely denied his (and Libby’s) involvement in the leak, maintaining a cover-up for two years. And after the disclosure of the smoking-gun Cooper e-mail in July 2005, the White House had steadfastly refused to comment—or honor its pledge to dismiss anyone involved in the leak. But after years of investigating, Fitzgerald decided that Rove had done nothing for which he could be indicted. The leak was “smarmy politics,” one senior law enforcement official familiar with the case said. It was sloppy and reckless. But it wasn’t criminal.
Hubris Page 48