Revelations from a key witness in the 2007 prosecution of I. Lewis “Scooter” Libby, former chief of staff to Vice President Cheney, have exposed the shoddiness of the government’s case. Libby was convicted of perjury, obstruction of justice and making false statements. The entire case centered on allegations that a CIA employee, Valerie Plame, was “outed” as  “covert” to columnist Robert Novak by the Bush administration as retaliation because her husband had written an op-ed in the New York Times criticizing the basis for the Iraq war. Libby had testified in the grand jury that he had no recollection of providing information about Plame vis a vis the CIA to any journalist.

After the trial, respected jurist David Boies criticized the prosecution as “troubling” because it criminalized the political process. Consider that Special Prosecutor Patrick Fitzgerald knew from the beginning of his investigation that Deputy Secretary of State Richard Armitage—not Scooter Libby—had “leaked” Plame’s name to Novak. Consider that Valerie Plame was not “covert” as defined by the criminal statute or Armitage would have been indicted. Thus, there was no underlying crime. Consider that in announcing the charges, Fitzgerald violated  rules of professional conduct for prosecutors by going outside the words of the indictment by claiming that Libby had thrown “sand…in his eyes,” thus falsely insinuating that Libby had prevented him from knowing the leaker. Consider that Fitzgerald told Libby’s attorneys twice that unless he could “deliver” the vice president to him (i.e. provide evidence of Cheney’s criminal conduct), Libby would be indicted. Libby had no such evidence and so he was indicted.


Now we know from Judith Miller, former New York Times reporter, in her new book, “The Story: A Reporter’s Journey,” that Fitzgerald corrupted her testimony, which was key to Libby’s conviction. Miller says that Fitzgerald withheld critical information. As a result, she “misremembered” what she had discussed with Libby and testified falsely at trial, mistakenly incriminating him. 

 During trial preparation, Miller reviewed notes of a two-year-old conversation with Libby that she had completely forgotten. Even the notes did not spark a clear recollection.  However, Fitzgerald questioned her in such a way as to lead her to believe that her notes meant that Libby had told her that Wilson’s wife worked at the CIA. She so testified. 

But a few years ago, Miller learned that Fitzgerald had withheld from her -- and from Libby’s lawyers, despite their request – information that immediately clarified for Miller that her notes had meant something else entirely. According to Peter Berkowitz’s April 7, 2015, WSJ article, Fitzgerald withheld documents revealing Plame had served under State Department cover. This information would have, as it did recently, refreshed Miller’s recollection that she did not learn of Plame’s CIA connection from Libby. Prosecutors have a legal and ethical duty to provide Brady material, meaning any information that would exculpate the defendant. Miller writes that she unintentionally gave false information and has no recollection that she ever discussed Wilson’s wife with Libby. 

A critical witness for the prosecution, Miller blames Fitzgerald for her false testimony, charging that he “steered” her “in the wrong direction.” As a result of Fitzgerald withholding evidence, she inadvertently helped convict an innocent man. 

Why did Fitzgerald pursue Libby when he knew from the get-go the leaker was Armitage? Perhaps he had gone so far out on a limb that he had to do whatever it took to justify resources that had been expended. Perhaps he wanted to bring down a vice president.  It is undisputed his methods were neither professional nor legally sound. I know of witnesses who were threatened with prosecution by Fitzgerald if they talked publicly about their grand jury testimony. Such threats were hollow because grand jury witnesses are allowed to discuss testimony. It is the grand jury that is prohibited from doing so.  

Of course, the conviction had a devastating effect on Libby’s career, but it also subtracted a wise and seasoned voice from the government. The counter-insurgency strategy that won the war in Iraq in 2007-2008 might have occurred years earlier had Libby’s voice not been prematurely muted.

Prosecutors have tremendous power. When abused, not only can it destroy lives but also change the course of history. Remember the corrupt prosecution of Sen. Ted Stevens (R-Alaska), where prosecutors also withheld Brady material and whose conviction—later overturned—resulted in the loss of that Republican Senate seat, giving Democrats the extra vote needed to pass Obamacare. 

Libby should have his good name restored. Just as importantly, Fitzgerald should have to answer for his misconduct. 

Toensing is a Founding Partner, diGenova & Toensing, and a former Chief Counsel for the Senate Select Committee on Intelligence