Why Scooter Lied

Lawyers are trained to think in matrices, a discipline that is enforced by the actual practice of law. Facts are sorted and grouped into patterns. Indeed, what the normal public might call an "event" a practicing litigator tends to call a "fact pattern." Are the elements of a crime, a tort, a breach of contract present? It depends on how all the facts fit together. This habit of mind eventually becomes instinctual, a preconception that shapes the apprehension of reality. (It can drive you crazy, in fact; it might be a good reason to quit practicing law.)

The instinct might be most acute when the lawyer suspects, in an ass-puckering moment, that he himself might actually be in legal jeopardy. For an ethical violation, or an error or omission, or even the commission of a crime. Given that lawyers are often operating right out there at the fringe of legal permissibility (it's why they're hired, to take on a legally fraught situation where the client is in dire straits and needs a risk-taker), such moments are not as rare as the lay public might think. Every litigating lawyer, as a wise senior attorney once told me long ago, lives in his own private hell.

At such a moment, the lawyer's mind seeks frantically for the escape route, the exception within the statute, the bulletproof defense. If none seems immediately available, the legal instinct is to examine what has already happened to see if the tweaking of reality might improve things. The invention of a "new" fact, one that never happened, just might take the pressure off. A substitute matrix, a better reality than the bitter one that keeps the lawyer awake at night.

Scooter Libby is now on trial in Washington, D.C. for perjury, lying and obstruction of justice, but all the counts relate to the same central dilemma. Libby told Patrick Fitzgerald and the grand jury that he learned about Valerie Plame's CIA connection from reporters, and not the other way around. It wasn't true. At trial, Scooter now must sell the argument that he was so busy he can't remember how he first found out. This is isn't true either, and Fitzgerald knows it. Fitzgerald knows it because of Title 50, Section 421, United States Code Annotated, the Protection of Certain National Security Information, or the "Identities Act."

Here are the elements, the matrix. The perpetrator must:

1. Have authorized access to classified information that identifies a covert agent; and
2. Intentionally disclose information identifying such agent to an individual without classified clearance; and
3. Know that the information disclosed identifies such covert agent; and
4. Know that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States.

Those are a lot of semicolons and ands. Yet Scooter, looking down that list (after David Addington, one hears, informed him about its nasty applicability), could find little solace within it. (1) is all too easy: Scooter had high security clearance as the Vice President's chief of staff, and his knowledge of Valerie Plame's name and role were the result of a classified CIA briefing. (2) Well, he told a bunch of reporters about Valerie Plame's connection to Joe Wilson's trip, and threw in that she worked for the Agency. The reporters did not have clearance. (3) Not too tough there: he gave the reporters her name, the best kind of information for identifying a covert agent. And (4) Oops. The CIA immediately demanded an investigation after Novak's column "outed" Valerie Plame, contending it was a violation of this very Section 421 --highly suggestive of a previous intent to keep her name secret.

So Scooter, simply doing a piece of typical hatchet work for Dick Cheney, trying to please the old Side-Smiler, suddenly found himself the point man for a heavy fine and a possible ten-year stretch in the federal pen. When questioned by Fitzgerald, and while testifying before the grand jury, Scooter didn't know whether anyone was going to be charged under the Identities Act. So he came up with something. Something a little desperate and frankly unworthy of a published novelist. He decided to finesse matters by short-circuiting the very first requirement up there. Element #1. He would say that he didn't learn Valerie's name from his access to classified information. Scooter would say that the reporters told him. The bear trap of Section 421 could remain unsprung.

There were two problems with this neat evasion. First, it wasn't true. Second, it was transparent as hell, and a prosecutor as smart as Fitzgerald would immediately recognize it for the pathetic dodge it was.

But, to be fair, I have a question: so what? Patrick Fitzgerald never indicted anyone for the real crime, the real, serious damage, which was the intentional disclosure of a covert agent's name. A covert agent who worked undercover in anti-proliferation issues through the "brass plate" cover of Brewster Jennings Co., who may have run foreign agents whose lives were placed in jeopardy by the sudden disclosure of their cover by the Executive Branch of the United States of America. Fitzgerald passed on that. So if Scooter obstructed an investigation underlying a prosecution that Fitzgerald never intended to pursue, what does an incidental lie about disclosure have to do with...well, anything? Is Fitzgerald's righteous zeal about protecting the "integrity of the system?" Not worth the candle, in my opinion. Fitzgerald knew why Scooter lied, Scooter knew, and now you do if you didn't before.

Fitzgerald's case is makeweight, an excuse for pulling back from the real issue, an alibi for not pursuing Rove and Cheney, a reason to hang around the power center of Washington D.C. for a couple of years. Scooter's life is wrecked, but he never seemed like the baddest of the bad. He was doing a dirty job, as lawyers often do. And, as lawyers often do, he got too creative at the wrong moment and found there was hell to pay.