Cheney answered their questions, but gave the impression that he disliked every minute of the interview and resented being there. He finally said he was pressed for time, and the agents wrapped up their questions. They offered him the standard waiver releasing any reporters from promises of confidentiality. Although Cheney said he’d never spoken to reporters other than in some TV appearances, he declined to sign it until his lawyers had reviewed it. Fitzgerald asked him not to discuss the interview so as not to influence other witnesses’ recollections, and his lawyer said they understood the request.
Fitzgerald and the investigators were understandably frustrated by Cheney’s performance. It was extraordinary that Cheney purported to remember almost nothing of relevance to the investigation, especially anything that had to do with Libby. The closest he would come was that something was “possible” or that he “wouldn’t be surprised.” What was that supposed to mean? That it had happened? Cheney thought it was possible he had dictated a statement to Libby on the flight back from Norfolk. In fact, he had done so, and they had Libby’s notes to prove it. But this was still only a possibility. Nor would Cheney say something didn’t happen. He had “no recollection” that Libby told him he had heard about Wilson’s wife from other reporters. Did that mean it didn’t happen? And Cheney’s claim that Wilson’s wife was “no big deal” was hard to swallow given the vice president’s own handwriting on the Wilson op-ed clip.
His testimony was a masterpiece of defensive maneuvering. Cheney had added almost nothing to the investigation, which may have been his intent. He had certainly said nothing to incriminate himself. Also, unlike Libby, he had said virtually nothing that could be disproved or contradicted. His lack of memory may have strained credulity, but he didn’t fabricate evidence, so far as they could tell. Cheney may have been wrong about Iraq’s weapons of mass destruction. But details aside, his overarching story–that he was wronged by Wilson’s allegations, was unfairly tarred with concealing important intelligence, and had misled the American people–was consistent with everything else they’d heard.
F
itzgerald had been cautious about approaching the president for an interview, saving this task until all other White House officials had been interviewed. The history of investigations that touched upon the Oval Office had been fraught with conflict and constitutional issues over executive privilege, a doctrine that Bush had jealously guarded, and an issue that the Supreme Court had ruled “should be avoided whenever possible.” But from the outset, the president had championed the leak investigation, ordering all White House employees to cooperate and making clear that those who didn’t would be fired. He had readily agreed to an interview with Fitzgerald and the FBI agents.
The investigators arrived at the White House on June 24, where they met the president in the Oval Office. In contrast to Cheney, Bush seemed very affable and relaxed. James Sharp, a well-known Washington criminal defense lawyer, represented him rather than counsel to the president Alberto Gonzales, who was a potential witness. Sharp’s presence reflected an abundance of caution; Bush wasn’t a subject or target, and he quickly established that he had no role in leaking Plame’s identity or suggesting that anyone else do it. In contrast to Cheney and Rove, he had paid scant attention to the Wilson op-ed piece and didn’t remember any conversation about Wilson’s wife until the Novak column and subsequent speculation about who had leaked her identity. He was annoyed by the breach of confidence and wanted to get to the bottom of it.
Had the president discussed the leak with any members of his administration? Fitzgerald asked.
Bush said that Gonzales had told him not to, but that with speculation swirling about Karl Rove, he’d picked up the phone and called Rove. He’d asked if Rove had “any involvement” in the disclosure of Plame’s identity.
What was Rove’s answer?
The president said Rove had acknowledged speaking to Novak, but said the topic of their conversation “had nothing to do with Valerie Plame”; the subject of Wilson’s wife “had never come up.” Bush said he’d asked Rove directly if he was a source for Novak’s column, and Rove denied that he was. The president said he took him at his word. He characterized Rove as a “dear friend,” someone he’d known for years, but said he “wouldn’t tolerate these kinds of leaks even if it was his good friend.” There would be “consequences,” and he’d dismiss him. But “if Rove said he didn’t do it, then he didn’t do it. If he was involved, he’d tell me. I trust him.”
It was an awkward moment, since Fitzgerald and the agents already knew that Rove had discussed Plame with Novak, and had acknowledged confirming her identity. Rove had also given an entirely different description of this conversation to the FBI, saying he’d told Novak, “I’ve heard that too,” and had reported that to the president. But no one said anything.
The interview lasted just over an hour, and the president made no effort to cut it short, answering all their questions. He knew nothing about any involvement by Libby and wasn’t involved in McClellan’s statement exonerating him. As with others questioned, Eckenrode handed the president a waiver releasing any journalists from any promises of confidentiality. “Sure, I’ll sign that,” Bush said immediately, taking the paper. He read it quickly, then signed with a flourish despite Sharp’s efforts to intervene.
When they discussed the interview, the investigators were struck by the president’s recollection of his conversation with Rove. Bush did not corroborate Rove’s recollection of the exchange; indeed, he contradicted it. Rove had told the president the subject of Wilson’s wife hadn’t even come up in his discussion with Novak. If Bush was correct–and he had no reason to lie about it–his trusted political adviser and “dear friend” had lied to his commander in chief. Was lying to the president of the United States a false statement punishable under Section 1001 of the criminal code?
SIX
“Double Super Secret Background”
F
itzgerald had never wanted a showdown with the press, even while recognizing that one might be inevitable. Justice Department guidelines state that “the prosecutorial power of the government should not be used in such a way that it impairs a reporter’s responsibility to cover as broadly as possible controversial public issues” and that “the approach in every case must be to strike the proper balance between the public’s interest in the free dissemination of ideas and information and the public’s interest in effective law enforcement and the fair administration of justice.” Here the two were on a collision course, with reporters arguing that testifying would impair their ability to obtain information from confidential sources, while at the same time, only their testimony could establish the guilt–or innocence–of Libby and Rove.
In this regard, testimony from Russert, Cooper, and Miller was essential. Russert was the pivotal figure in Libby’s alibi and had already contradicted it. Cooper had written that he’d learned Plame’s identity from several administration officials and could confirm or contradict Libby’s and Rove’s versions of their accounts. Miller could do the same for Libby’s versions of their three conversations about the Wilson mission.
Justice Department guidelines also require prosecutors to negotiate with reporters and news organizations before issuing subpoenas, and Fitzgerald had had extensive conversations with the
New York Times
and Time Inc., both represented by renowned First Amendment specialist Floyd Abrams, and NBC, represented by Lee Levine. In both instances, Fitzgerald had argued that this was a uniquely weak case on which to stake an absolute privilege against testifying. Even if there had been a promise of confidentiality, both Libby and Rove had waived any privilege and expressly asked the reporters to testify. There was no coercion; they had been free to sign the waivers or not, with guidance of counsel, and the FBI didn’t disclose who did or didn’t sign them. They had also gone before the grand jury and testified that they had spoken to the reporters, voluntarily identifying themselves as sources. Finally–and perhaps of most importance–Rove and Libby were “sources” not in the sense that they were whistle-blowers exposing wrongdoing in government, but because they were attempting to discredit another source–Wilson–who arguably was a whistle-blower on the question of whether the administration misled the public on Iraq’s weapons of mass destruction. Fitzgerald argued that protecting Libby and Rove would likely chill future whistle-blowers like Wilson, which wasn’t in either the press’s or the public’s interest.
From the press point of view, their reporters had to varying degrees made promises of confidentiality, promises sacred to the news-gathering process. The promises had to be honored, no matter the identity of the sources or their motives for seeking anonymity. But such promises could be abrogated by the sources. Did the waivers absolve the reporters from honoring their commitments? In each case, and in contrast to the advice Hamilton had given Novak, they concluded they did not. The negotiations went nowhere.
Ordinarily the attorney general must explicitly approve any grand jury subpoenas to reporters, but since that authority had been vested in Fitzgerald, he made the decision. The grand jury issued subpoenas to Russert and Cooper on May 21, 2004. Both were narrowly drawn to limit their intrusion into the news-gathering process. Cooper’s was restricted to his conversations with Libby and related documents. Nonetheless, lawyers for both NBC and Cooper tried to quash the subpoenas on First Amendment grounds, a move rejected by federal district court judge Thomas Hogan, who was overseeing the investigation. At that juncture, NBC’s lawyers reached an agreement in which Russert would give a sworn deposition–but not appear before the grand jury–and testify about his conversation with Libby.
Russert was in a unique situation: Libby had called him to complain about Matthews, and although Russert subsequently maintained that he treated all such calls as confidential, he said they had no explicit agreement or understanding to that effect (even though Libby had claimed the call was “off-the-record”). It was hard to argue the call was off-the-record or confidential when Libby wanted Russert to use the information to take Matthews to task. Moreover, Libby wasn’t telling Russert anything new; he was simply reiterating the standard administration position that the vice president’s office hadn’t sent Wilson to Africa. He hadn’t imparted any new information, confidential or otherwise. Russert had also freely answered questions from the FBI without invoking any privilege.
Under the agreement with Fitzgerald, Russert gave a deposition on Saturday, August 7. It lasted just twenty-two minutes. On the critical issue of the phone call with Libby, he was even more emphatic than he’d been with Eckenrode.
“Did you have any understanding from anyone else that Mr. Wilson’s wife worked at the CIA?” Fitzgerald asked. That is, did “all the reporters” know about her?
“No,” Russert flatly replied.
On August 9, NBC News announced that Russert had been interviewed by Fitzgerald under oath and he had testified that he was not the recipient of a leak about the identity of Valerie Wilson, had not known about her identity until he read the Novak column, and had not said anything to Scooter Libby about her status.
NBC’s summary of Russert’s testimony didn’t seem significant to anyone outside the investigation. Indeed, it was puzzling to the lawyers for other reporters. Libby and his lawyer, of course, were on notice that Russert had now contradicted him under oath.
N
otwithstanding Libby’s signing of a blanket waiver releasing all journalists from a promise of confidentiality, Matt Cooper felt he needed a “specific” waiver releasing him by name. He felt he needed to find out if the waiver had somehow been coerced, or if Libby was truly freeing him from any restrictions. Curiously, no one seems to have pressed Cooper on just what commitment to confidentiality he had made to Libby. After the on-the-record statement, Libby had shifted to “background,” but background generally means that information can be used but not attributed to a source–not that a journalist will refuse to answer questions in a criminal investigation. Still, such ground rules were notoriously vague, and Cooper and his lawyers interpreted their conversation as requiring confidentiality.
On advice of
Time
’s counsel, Cooper spoke to Libby by phone on August 5, and Cooper told Libby that his recollection of their conversation was “basically exculpatory.” Did Libby have any objections to Cooper testifying? Libby said he had “no objection” and suggested their respective lawyers discuss Cooper’s testimony. Libby’s lawyer, Tate, assured Abrams that Libby was releasing Cooper from any promise of confidentiality.
However sincere in their belief that Cooper would be helping Libby by testifying, Cooper and his legal advisers arguably had no basis for telling Libby that his testimony would be “basically exculpatory.” True, Libby hadn’t used Plame’s name. But Libby had confirmed Wilson’s wife’s status, which was potentially incriminating. Moreover, Cooper wasn’t privy to Libby’s grand jury testimony, so he had no way of knowing if his version of the conversation corroborated Libby’s. Given Libby’s detailed version, in which he claimed to have told Cooper he’d only heard the information from other reporters and didn’t know if it was true, Cooper’s testimony was in fact damning.
Based on Tate’s reassurance, Cooper agreed to answer questions related to Libby, but not about any of his other sources. The reporter met Fitzgerald at his lawyer’s offices on Monday, August 23. Cooper confirmed that he spoke with Libby on July 12, and that Libby dictated the on-the-record statement. Then Libby suggested they speak “on background,” and they had talked more generally about Wilson’s trip and the uranium issue. Toward the end of the conversation, Cooper had asked Libby “What have you heard?” or “What do you know?” about Wilson’s wife sending him to Niger. “I’ve heard that too,” Libby had told him. Libby didn’t say where he’d heard it.