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While politics may have had nothing to do with the decision by Special Prosecutor Patrick J. Fitzgerald to seek an indictment against Lewis Libby, Vice President Dick Cheney’s chief of staff, it likely had everything to do with Libby’s decision to give up his right against self-incrimination, a decision that may ultimately cost Libby his freedom. Certainly, without Libby’s testimony, Fitzgerald would probably have no case. Indeed, the recent disclosures by Washington Post reporter Bob Woodward, which now call into question whether Libby was the first government official to leak the identity of CIA operative Valerie Plame Wilson, further underscore this point. Remember first what Fitzgerald did not charge. He did not allege that Libby broke the law by leaking Wilson’s name in retaliation for her husband’s public criticism of the way the administration used pre-war intelligence to justify the war on Iraq. He did not charge that Libby participated in a conspiracy to disclose classified information in an effort to discredit Wilson’s husband. And he did not charge that Libby knew that Wilson was in covert status when he disclosed her identity to three reporters. In short, the indictment makes no mention, and Fitzgerald publicly acknowledged reaching no conclusions, about any of the central issues that formed the focus of his two-year investigation. In fact, all five of the counts lodged against Libby essentially repeat the same simple charge that, when asked about his role in the leak by FBI agents and by a grand jury, he lied. Without minimizing the seriousness of such crimes, we have to conclude that despite a long and exceedingly thorough investigation, there seems to have been insufficient evidence to charge Libby with any other offense. Moreover, Fitzgerald made clear that there were legal obstacles to bringing charges under statutes that might make disclosing Wilson’s identity a crime. So in the end, Libby was charged with lying to federal investigators and to a federal grand jury in order to cover up conduct which itself was not a crime, or at the very least, would not have resulted in criminal charges against him. Given that the indictment was all about answering questions on a highly charged foreign policy issue, the political considerations are obvious. But so too are the criminal implications. Anyone other than a high government official in Libby’s situation would clearly have been advised to invoke his Fifth Amendment right to silence. This constitutional right, which protects citizens from being compelled to provide statements that could be used to build a criminal case against them, is especially critical in avoiding charges for perjury and obstruction of justice. Had Libby “taken the Fifth,” he could never have been charged with the crimes he now faces. In theory, even that invocation itself, when made to a grand jury, would remain secret. Indeed, Fitzgerald was exemplary in preventing leaks. But given the laserlike public focus on the proceedings, Libby was forced to choose between his potential loss of liberty and his loyalties. The political fallout stemming from his failure to cooperate in a federal criminal investigation would have been far more devastating to the administration than the indictment itself. An alternative approach? Still, there may have been another way out. Assuming the allegations are true, Libby could have walked away from this by simply admitting to the underlying conduct of which he was accused. What if Libby had admitted leaking Wilson’s identity as a CIA operative? Fitzgerald never claimed, either in the indictment or his public statements, that Libby had known of her covert status, a condition that would be a prerequisite to bringing charges under the Intelligence Identities Protection Act of 1982. Similarly, even though the indictment did describe Libby as having provided classified information concerning the identity of a CIA officer to people not eligible to receive it, Fitzgerald said he was reluctant to bring such a charge, since it was not clear that Libby appreciated the classified nature of the information or that he acted recklessly in sharing it with others. But that path, too, was politically foreclosed. To acknowledge that he intentionally “outed” Wilson as a CIA operative would have set off a firestorm of criticism, even if his conduct was ultimately judged not to have been criminal. Now facing serious charges that could well result in jail time if he is convicted, Libby is again faced with a difficult decision. One of the critical facts that the government will have to prove at trial is that, contrary to his statements to the FBI and his testimony before the grand jury, Libby knew of Wilson’s identity long before he claimed and from different sources than he stated. On this point, the prosecution’s star witnesses might well include the vice president himself and other high-ranking administration officials. This leaves Libby once again in the uncomfortable position of weighing the political implications of pursuing his path to exoneration. Robert A. Mintz, a former federal prosecutor, heads the securities litigation and white-collar criminal defense practice at Newark, N.J.-based McCarter & English.

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