Legal Experts Analyze the Libby Indictment Legal experts Irvin Nathan and Josepha diGenova offer their analysis of the indictment of I. Lewis Libby in the CIA leak case.
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Legal Experts Analyze the Libby Indictment

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Legal Experts Analyze the Libby Indictment

MELISSA BLOCK, host:

Joining us now to talk about the charges, two lawyers who've both been federal prosecutors and are now criminal defense lawyers. Irv Nathan, who's in our studio, was the number two official at the criminal division of the Justice Department. That was in a Democratic administration.

Welcome back.

Mr. IRV NATHAN (Attorney): Thank you. Glad to be here.

ROBERT SIEGEL, host:

And on the phone from Palm Springs, California, is Joseph DiGenova, who is US attorney for--was US attorney for the District of Columbia. That was during a Republican administration.

Welcome back to the program, Joe DiGenova.

Mr. JOSEPH DiGENOVA (Attorney): Good to be with you.

SIEGEL: Here's the first question for both of you, first from Irv Nathan. The charges here are all about lying, not about leaking, although Patrick Fitzgerald talked about the damage that the leak caused. Does that strike you in any way as unusual indictment, Irv Nathan?

Mr. NATHAN: No, I think this is quite common. It's often happens that when an investigation begins with respect to one matter, the first charges that result are about lying, about obstructing justice, committing perjury before the grand jury, basically the cover-up. And often what happens is that there's a prosecution on that and after the prosecution, the investigation continues and further information develops. I think this is a--quite common, as the classic example is Martha Stewart who was investigated for insider trading but charged with false statements.

SIEGEL: Joe DiGenova, you agree?

Mr. DiGENOVA: I do completely. I think this is--this happens every day where the prosecutor cannot make the underlying case. He couldn't make insider trading against Martha Stewart. And from his own statements today and from the literal language of both the indictment and his memorandum, which he released, he could not prove that Scooter Libby knew that Valerie Plame was in covert status. He was able to show that Mr. Libby knew, as did others, that she worked at the CIA, but that--a lot of people work at the CIA and they're not in covert capacity. So he clearly decided that he could not prove that and decided to go with these procedural--very, very serious offenses, by the way. I mean, these are as bad as it gets. So anybody who says that these aren't significant is whistling in the breeze. These are very serious charges. What's really fascinating about them is that he spends a lot of time talking about the classified information and how important it is and the potential for damage. There probably will be a major effort by the defense team to strike all that language from the indictment since he did not charge the underlying offense of violating the classified laws.

BLOCK: When it comes down to making this case in court--Irv Nathan, to you first--how do they prove this? Do they have to prove intent, that Lewis Libby was willfully misrepresenting the facts?

Mr. NATHAN: Absolutely. All of these offenses are specific intent offenses. They will have to prove that he intended to mislead the FBI agents and the grand jury, that he knew the statements that he was making were false. In response to Joe DiGenova's point, I agree there will be a major effort by the defense to strike it, but I doubt that it will be successful because, I think, that this indictment, unlike many, lays out the entire context of the matter and makes clear why Mr. Libby--let me make clear, Mr. Libby is presumed innocent, and he will not be guilty until a unanimous jury finds him guilty after proof at trial. But with respect to the charges, if these charges are true and the explanation for the charges is that he had reason to lie because he knew that this was classified information, not that she was a covert agent but that her status at the CIA was classified--and further that this had been discussed at the highest levels of his office and other government offices and he attempted to mislead the grand jury by suggesting that this information came from reporters rather than from the government.

BLOCK: And, Joe DiGenova, just briefly, does it seem to you based on this indictment that the prosecutor has a good case here?

Mr. DiGENOVA: Well, it would seem so. I mean, after all, some of his witnesses are going to be Tim Russert, Matt Cooper, Judith Miller. This is one of these fascinating cases where the ultimate result of his investigation will be some of the principal witnesses against the gove--former government official will be reporters who were compelled to give testimony in a case. You know, I would suspect that that'll be pretty compelling testimony. It may not be testimony that reporters enjoy giving and they many not being--literally being the star witnesses for the United States government an amazing result but there they will be.

SIEGEL: But if the two of you were the defense team in a case like this, I assume, Irv Nathan, that you'd be making the argument that it doesn't matter what--your client's being charged with lying here and the lie could have been about a conversation about milk price reports. That's not what's at issue. It's not about national security. It's just about these minute, narrow acts. Can the prosecutor both have a narrow, what he thinks might be easy case, and also get to make a broad, sweeping contextual claim about it?

Mr. NATHAN: Well, I don't think he's going to try to make a broad, sweeping claim. I do think he's going to be really focused on the accuracy of the statements to the FBI agents and to the grand jury but he lays out why those statements are false. I agree with Joe, the witnesses who will testify to the falsity of those statements are generally reporters and some of whom, like Judith Miller, have already disclosed in the newspapers exactly what she testified to and what she believes Mr. Libby said to her and when she said it and she has notes to that effect. So that I think the case can be honed in with respect to the falsity of the statements. The motivation for it, the intent, could be amplified by these other considerations of national security, the classified information and the significance of the matter.

BLOCK: How do you figure that Karl Rove should interpret what the special prosecutor, Patrick Fitzgerald, had to say today about the investigation, whether it's ongoing? Joe DiGenova.

Mr. DiGENOVA: I don't have the slightest idea. I mean, I--you know, I think that Mr. Fitzgerald has brought all the charges he's going to bring in this case. If he were going to charge a conspiracy involving Mr. Rove and Mr. Libby, he doesn't have to wait for any more information. He's got all he needs to know. He made--whatever decision he made about Mr. Rove based on the kind of information that Mr. Rove ultimately gave him in the four appearances before the grand jury, I think that Mr. Rove, obviously, can be very happy with the fact that he was not indicted today. And I think he may be hanging out there for a while, but I think it's highly unlikely he will be charged.

SIEGEL: Thanks to both of you. That's Joe DiGenova speaking to us by phone, former US attorney for the District of Columbia, and also Irv Nathan, formerly of the Justice Department criminal division.

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