Will Scooter fall on his sword? (Title borrowed from the ever-entertaining Whatever It Is, I'm Against It.) I want to revist the subject of my last post, Tuesday's scoop in the Times that fingered Dick Cheney as Scooter Libby's source for the identity of Valerie Plame. Nobody else is much talking about the article—on the hows and whys of its appearance, at least—and yet I think it throws a light, however ambiguous, on the obscure doings behind the scenes this last week. And maybe allows us a bit of insight into what's going to come.

As I said below, it's a certainty that the information about Libby's July 12 conversation with Cheney, and the fact that Fitzgerald had Libby's notes about it, was leaked to the Times from Libby's lawyers: the article all but bylined Scooter's counsel Joseph Tate. That's an important point. The leak was signed, and the signature on it was meant to be legible, to all parties involved: given the way these transactions go, I have no doubt that the specific form of non-attribution that appeared in the Times article, in this graf—

White House officials did not respond to requests for comment, and Mr. Libby's lawyer, Joseph Tate, would not comment on Mr. Libby's legal status. Randall Samborn, a spokesman for Mr. Fitzgerald, declined to comment on the case

was negotiated rather carefully between the reporters and Tate.

With Friday's indictment in hand, a couple of things seem clearer about what occasioned the leak. Somewhere in the back-and-forth in the day or so before the article appeared, Fitzgerald dropped a bomb: he had Libby's notes on the July 12 conversation with Cheney. This must have caused exactly as much alarm in Libby's camp as Fitzgerald intended it to. No sane man would have so relentlessly perjured himself as Libby did, knowing that investigators had documentary evidence he himself had produced that he was lying: perhaps (as seems unlikely) Libby had forgotten those notes existed; perhaps he had unwrranted confidence in their having been sanitized. No matter. Before sometime probably early on Monday, Libby didn't know that Fitz had the notes—nor did anybody else outside the prosecutor's office. Fitzgerald is known to squeeze defendants like a boa constrictor, and in the pre-indictment negotiations this was a very big, very constricting squeeze indeed.

So, the leak. I don't know as a practical matter whether Fitzgerald could have enjoined secrecy on Tate, in the matter of the conversation notes: if he could have, he didn't, and if he couldn't, then self-evidently he didn't care if the news got out. (Leaking to the press would seem to have become a prime source of billable hours lately for defense lawyers in the Plame case.) And why would he, when he was already preparing an indictment, a public document, with the information in it? He wasn't going to reinterview Cheney, under oath or not, before Friday—nor is it likely that he'd try to spring a perjury trap on the Vice President anyway. Nothing in his operation could have been compromised by the Times story on Tuesday, because premature release of the information would have given no one he was targeting any unwelcome advantage.

The information about the notes was news, but as far as Fitzgerald was concerned it didn't matter (that news being public) in the context of the prosecution. (We'll leave aside the possibility that he may have got a little pleasure at the thought that the news might make a few of the not yet indicted malefactors squirm.) Let's imagine, for the sake of argument, that Fitzgerald was wrong about that, or that Libby's team made a different calculation. Let's imagine that they thought it was important to give Scooter's (soon to be ex-) boss a heads-up about the notes, and pronto, even with the certainty that he'd know all about it via the prosecutor himself just a couple days hence. They're going to give him that heads-up on the front page of the NY Times? Even though Libby and Scowly probably haven't enjoyed untrammeled communication (on anything related to the Plame matter) for a while now, I have to believe there are significantly less public, and less politically damaging, channels in existence through which Scooter could have let Cheney know where things stood.

No: the leak was certainly intended for Cheney, but it was intended to cause pain, as in fact it did. And that was the message: the pain the communication caused, rather than the information it contained as such, was the substance of the communication. This is going to hurt, and it's just starting, says Scooter to Dick. With, as I suspect, a corollary implied: Better do what you can to make it stop.

I can think of plenty of reasons why somebody in Scooter Libby's parlous position would want to hurt a Dick Cheney: I don't think his lawyers would underwrite simple vindictiveness, though, however justified. That's why I continue to think that this was a flare-gun signal of sorts, an effort from Libby's team, under the Fitzgeraldian squeeze, to squeeze Cheney in their turn. To get what, if not a pardon? I don't know: in comments below, emptywheel (to whom all must defer, on anything Plame-related) is dubious about the pardon idea, but I can't think of anything else Libby could hope to get out of such a public display of non-affection. (A villa in Tuscany he can retire to once he serves out his sentence?) Nor can I think of any other reason that Tate (as it appears) was so careful to make the provenance of the leak clear to anybody that cared enough to know—if you're making a threat, after all, you gotta let 'em know who to pay off. But that all may be just a detail, anyway. What really leaps out in this transaction is: this is not the work of a loyalist. A die-hard, throw-myself-on-the-grenade-to-save-my-boss guy doesn't deliver a leak like Scooter delivered on Monday to the New York Times. We're not in omerta territory here.

Hence, what I said above about insight into how things play out from this point. What the Times leak tells us is twofold: one, Fitzgerald (per his MO) is squeezing Libby hard; two, Libby's getting weak in the knees. I can't think that Fitz has been squeezing just for the exercise, or just to get Libby to plead out so he can go back home to Chicago. (Though it's awfully lovely here this time of year.) Indeed, the leak all but confirms that Fitzgerald has Cheney in his sights. And the combination—of a pitiless prosecutor, and a consigliere who's signaling that he's desperate for an out—does not bode well for the Dickster. Sleeping a little rough these days, are you, Mr. Veep?

posted by michael  9:48:30 AM  
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