It May Be Wrong, but Is It Perjury? For Prosecutors, That Is Often the Challenge - New York Times

It May Be Wrong, but Is It Perjury? For Prosecutors, That Is Often the Challenge - New York TimesOctober 30, 2005
The Legal Issues
It May Be Wrong, but Is It Perjury? For Prosecutors, That Is Often the Challenge
By ADAM LIPTAK

Proving perjury, the central charge against I. Lewis Libby Jr., is ordinarily no easy task, legal experts said yesterday. A prosecutor must convince a jury not only that the defendant said something false about a significant point but also that the falsehood was more than an innocent error produced by poor memory. To be perjury, the false statement has to be a knowing lie.

Mr. Libby, who resigned as Vice President Dick Cheney's chief of staff on Friday after being indicted on charges of perjury, obstruction of justice and making false statements to investigators, will probably argue that any misstatements he made were the good-faith mistakes of a busy man.

"Mr. Libby testified to the best of his honest recollection on all occasions," his lawyer, Joseph A. Tate said in a statement on Friday. "A person's recollection and memory of events will not always match those of other people, particularly when they are asked to testify months after the events occurred. This is especially true in the hectic rush of issues and events at a busy time for our government."

Adam S. Hoffinger, a former federal prosecutor and now the head of the white collar practice at DLA Piper Rudnick Gray Cary in Washington, said corporate executives often made such arguments when they were charged with perjury and similar crimes. "That is a logical defense when you're dealing with someone on a high level," Mr. Hoffinger said.

But the special prosecutor in the case, Patrick J. Fitzgerald, has amassed a wealth of details about what Mr. Libby knew and when he knew it. Mr. Fitzgerald described those details in the indictment at a news conference on Friday, and he clearly believes they are sufficient to overcome the busy-executive defense.

"The way perjury is usually proven - unless you have a tape on which the defendant says, 'Ha, ha, ha, I lied' - is by circumstance," Mr. Hoffinger said. The details Mr. Fitzgerald has alleged, Mr. Hoffinger said, "are the circumstances from which you can infer that Libby was lying and knew that he was lying."

According to the indictment, Mr. Libby learned about Valerie Wilson, whose employment at the Central Intelligence Agency was classified information, from several government officials and classified documents in May and June 2003. He also discussed her identity with other officials in that same period, the indictment says. Yet he told a grand jury investigating the disclosure of Ms. Wilson's identity that he learned about her from Tim Russert of NBC News in July 2003.

Mr. Fitzgerald's mandate, according to the letter appointing him special counsel in the case in December 2003, was to investigate "the alleged unauthorized disclosure of a C.I.A employee's identity." But the indictment does not charge that Mr. Libby violated any law concerning classified information in discussing Ms. Wilson with three reporters in June and July 2003.

Such crimes, Mr. Fitzgerald said Friday, are hard to prove. "You need to know at the time that he transmitted the information, he appreciated that it was classified information, that he knew it or acted, in certain statutes, with recklessness," he said.

But Mr. Fitzgerald suggested that the charges against Mr. Libby, for his conduct months later during the investigation, would help prevent future disclosures. "It doesn't really, in the end, matter what statute you use," Mr. Fitzgerald said, "if you vindicate the interest."

The damage caused by Mr. Libby's conduct was substantial, said Christopher Wolf, a lawyer in the Washington office of Proskauer Rose who represents Ms. Wilson and her husband, Joseph C. Wilson IV, a former diplomat.

"Both Valerie Wilson and the nation were injured by this," Mr. Wolf said Friday. "Her personal safety and that of her family and her contacts is in jeopardy."

Mr. Libby's grand jury testimony about Mr. Russert, in March 2004, was, according to the indictment, detailed, expansive and confident.

"Did you know that Ambassador Wilson's wife works at the C.I.A.?" Mr. Russert asked Mr. Libby in a July 2003 conversation, according to Mr. Libby's testimony. Mr. Libby then described his reaction to the information: "I was a little taken aback" because "at that point in time I did not recall that I had ever known, and I thought this is something that he was telling me that I was first learning."

Mr. Russert did not appear before the grand jury, but according to a statement issued by NBC News after he was deposed in the investigation in August 2004, he denied knowing that Ms. Wilson was a C.I.A. operative when he talked with Mr. Libby and said that he had not provided that information to Mr. Libby.

Similarly, the indictment says, Mr. Libby testified that he passed along information about Ms. Wilson, attributing it to what "reporters were telling the administration" and without vouching for its truth, to Matthew Cooper of Time magazine and Judith Miller of The New York Times. The two reporters said they had not heard the attribution or caveat.

The differences, Mr. Libby's lawyer said, amount to nothing more than "alleged inconsistencies in Mr. Libby's recollection and those of others."

But William E. Lawler III, a former federal prosecutor now in private practice at Vinson & Elkins in Washington, said, "People are convicted of all sorts of stuff on the basis of he-said/he-said every day." In Mr. Libby's case, the documents and other information Mr. Fitzgerald gathered from inside the government also seem to contradict what Mr. Libby told the grand jury.

It may also hurt Mr. Libby that he told his version several times, to F.B.I. investigators in October and November 2003 and again to the grand jury the next year.

"The jury will hear," Mr. Lawler said, "that the defendant had many opportunities to set the record straight and come clean."