WASHINGTON — Sometimes, a witness says he just can't remember. It may well be a convenient memory lapse, but it is hard to prove such forgetfulness is a crime.
I. Lewis "Scooter" Libby, however, is accused of something far more elaborate. Special Prosecutor Patrick J. Fitzgerald alleges that Libby made up a false story to deceive investigators and then told the lie under oath to the grand jury.
Telling a false story to a federal prosecutor who knows the facts is a sure ticket to an indictment, legal experts said Friday. And, they said, Fitzgerald appears to have built a strong case.
"That's unacceptable. You can't lie, make up conversations that didn't happen and expect you are not going to be charged with a crime," said George Washington University law professor Stephen A. Saltzburg.
Fitzgerald has been investigating whether anyone in the administration violated federal law by leaking the identity of CIA agent Valerie Plame. Many have suggested that her identity was disclosed in retribution against her husband, former U.S. envoy Joseph C. Wilson IV, a critic of the Bush administration's Iraq invasion.
Libby was indicted on one count of obstruction of justice, two counts of making false statements to FBI agents and two counts of perjury in connection with his grand jury testimony.
According to the indictment, Libby told investigators that he first learned from reporters in July 2003 that Plame worked for the CIA. In fact, Libby had talked that June with officials at the CIA and the State Department and with Vice President Dick Cheney about Plame and her employment at the CIA, according to the indictment.
On July 6, Wilson wrote an op-ed piece in the New York Times that cast doubt on President Bush's statement that Iraq may have purchased yellowcake uranium from Niger.
In the next few days, Libby spoke with NBC's Tim Russert, Time magazine's Matt Cooper and New York Times reporter Judith Miller. The indictment says all three contradicted Libby's version of their separate conversations with him.
Russert told the grand jury that he and Libby did not discuss Wilson's wife when they spoke on July 10 or July 11 and that he did not learn Plame's name until it was published in a column by Robert Novak on July 14.
But according to the indictment, Libby testified that Russert "said to me, did you know that Ambassador Wilson's wife ... works at the CIA? And I said no, I don't know that. And then he said yeah, all the reporters know it. And I said again, I don't know that.... I was struck by what he was saying in that he thought it was an important fact, but I didn't ask him any more about it."
Later that week, Novak disclosed that he had learned from "senior administration officials" that Wilson's wife was a CIA operative.
Nonetheless, when federal investigators began looking into who leaked Plame's name to the media, Libby told them that he had learned of her from the news reporters. He repeated the same story when called before the grand jury in 2004.
"When citizens testify before grand juries, they are required to tell the truth," Fitzgerald said.
Like many in Washington before him, Libby was indicted for an alleged cover-up, rather than the crime that the prosecutor set out to investigate.
It is also similar to the insider-trading case that snared Martha Stewart. She was not charged with insider trading, but with telling a false story to investigators.
"The one ironclad rule of white-collar crime is you get indicted not for what you originally did but for what you did after the investigation started," said Columbia University law professor John C. Coffee Jr. "It is much easier to prove that you lied to investigators than to prove you were the original source" of the leak.
The indictment also makes clear how critical the journalists' testimony is to Fitzgerald's case. Cooper refused to testify for nearly a year, and Miller spent 85 days in jail until Libby granted her a waiver from her pledge of confidentiality.
Fitzgerald would have no case "without the journalist witnesses. We are in an interesting new world," said Rory Little, a former federal prosecutor who teaches criminal law at the University of California's Hastings College of the Law in San Francisco. "Why would a guy as smart and as experienced as Libby go in and lie? One reason is he was still living in the world where journalists were not compelled to testify."
Little cautioned it was possible that Russert gave an inaccurate account and that Libby would be vindicated. However, if the allegations are true and Libby made up his story "out of whole cloth," he added, "it is the hubris of a high-ranking government official who doesn't believe it will come out, and if it does, there is deniability. If you want to spread this around, you talk to one reporter and then call another reporter and say this is what I heard. The allegation reads as a vicious, cynical use of the media."