Bombshell in the Case Against 'Scooter' Libby?

This is a partial transcript of "Special Report With Brit Hume" from Nov. 16, 2005, that has been edited for clarity.

BRIT HUME, HOST: So what effect will the Woodward revelations have on the case against Scooter Libby who is charged with perjury and obstruction of justice? For answers we turn to former prosecutor and veteran Washington lawyer, Joseph diGenova. Welcome. We had Mrs. diGenova, Victoria Toensing, in that piece, your law partner as well. Good to have you as well. What’s your take on all this?

JOE DIGENOVA, FMR. FEDERAL PROSECUTOR: I think this is a very serious development for the prosecutor. I can predict that he will be holding no further news conferences because he has just been hoisted by his own petard from the last news conference he held. By alleging that Mr. Libby was in fact the initial source, he publicly bootstrapped his case on that fact.

That is now totally false and it requires him now, under Justice Department guidelines, to seriously consider dismissing the case because you cannot indict when there’s a reasonable doubt and I believe now that there is reasonable doubt about Mr. Libby’s state of mind.

HUME: Well, it may be the case, as Bob Woodward has now apparently testified, that Libby was not the first person who revealed this information, but prosecutor’s allegation is that whatever — whoever may have been first or second — he is not charged with being the first source. He is charged with coming before the grand jury and lying under oath, is he not?

DIGENOVA: Well, I think Mr. Fitzgerald has done more than that. And everyone is to be excused for not seeing it. He has done a very interesting thing in this indictment. He has talked about all this classified information, how she was a classified employee. She is not a covert employee. That’s never been established and there is no evidence that she was.

And then he tries to show that Mr. Libby was involved in spreading the information about her, knowing that she was a so-called classified employee. It is now clear that Mr. Libby’s allegation by his lawyers that his memory was simply faulty makes a lot more sense now that we know that Bob Woodward was in fact the first person to receive that information, not from Mr. Libby but another, apparently former, government official.

HUME: But if in fact, Libby said that he first learned this information from Tim Russert, as he is alleged to have said, and he didn’t, he learned it from someone else, and he’s also charged with telling other lies about this information, whether he was first to say this or not, those charges would still stand would they not?

DIGENOVA: They would stand, except for this. This now puts the prosecutor in a position into having made a very bold statement about something that Mr. Libby did which is now totally untrue and Mr. Fitzgerald knows it.

It also shows that in the situation with Mr. Woodward when he spoke with Walter Pincus at The Washington Post, he claims that he told Walter Pincus about his conversation about Mrs. Wilson. Mr. Pincus says I don’t remember that.

What this now does for the prosecutor and for the public is put front and center the fact this witnesses can engage in the same event, have a conversation, and remember it totally differently. Mr. Libby’s defense team is now free to run amuck with this notion, but Mr. Fitzgerald has a duty now. He has a very substantial duty as prosecutor.

Under Justice Department guidelines, when he has reason to believe that some fact that he has relied on is false, such as Mr. Libby being the first person to tell a reporter, he has a duty to go back and if necessary, if that creates reasonable doubt about other things in the indictment he must dismiss it.

That duty is upon him at this very moment and I hope he is going to be as honest about it as he pretends to have been about the underpinnings of the indictment.

HUME: You are quite sharply a critic of him. Why?

DIGENOVA: Because I believe that that news conference was a disgrace.

HUME: Why is that?

DIGENOVA: What he did was he bootstrapped her class, Mrs. Wilson’s allegedly classified employment status, which is not covert status.

HUME: But it may have been classified.

DIGENOVA: Well, but that doesn’t mean that it is a violation of the Espionage Act or the Agent Identities Act.

HUME: Well, he didn’t list that.

DIGENOVA: In fact, he didn’t charge that.

HUME: Right.

DIGENOVA: But what he did do was he tried to make it look like that is what happened by not charging it. That news conference was an overly aggressive attempt to present the public with a false picture of what this case was about and by making a terrible mistake make now, apparently, about whether or not Mr. Libby was the first person, he has to go back and recalibrate all the evidence in this case. He has an immense duty to do that, and he better do it.

HUME: All right. Joe diGenova, good to see you. Always good to have you.

DIGENOVA: Good to see you, Brit.

HUME: Thanks very much.

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