This is a partial transcript from "Hannity & Colmes," March 6, 2007, that has been edited for clarity.
SEAN HANNITY, CO-HOST: We get right to our top story tonight. Lewis "Scooter" Libby, former chief of staff for Vice President Dick Cheney, was convicted today on four counts in connection with the CIA leak probe. But as soon as the verdict was announced, questions began to swirl around Washington. The comments of some of the jurors raised eyebrows and are leading some to believe that the jury was out to punish someone, anyone, for the highly publicized and often misrepresented investigation.
Democrats also pounced, demanding that President Bush not pardon the now-convicted Libby. And all the while, many people are asking tonight if any of this was necessary. Was it all a political witch hunt into something that wasn't even a crime to begin with?
Joining us now, nationally syndicated radio talk show host Laura Ingraham, syndicated columnist and FOX News contributor Bob Novak, and former counsel to Vice President Al Gore, David Boies.
We were discussing this in the Green Room. This is a case that never should have been brought. And once it was brought, the prosecutor learned very early on that Plame was not covert, a, which was part of, you know, the issue that was brought out from the beginning and, b, who the leaker was.
DAVID BOIES, FORMER GORE COUNSEL: Whether or not she was covert, I think that's an open question. But I think the prosecutor did understand early on that there was not an underlying crime here. From the outside, that's the way it looks.
BOIES: And under those circumstances, I think it's very troubling to use the criminal justice system to proceed in what is essentially a political case. I thought that way in the Clinton case.
HANNITY: Well, you were wrong then, but you're right here.
HANNITY: I don't mean to make a joke.
BOIES: This is the same thing. This is the same thing. This is criminalizing the political process. And it's wrong, whether it's done on one side or on the other.
HANNITY: I want you to expand on this, though. When you say criminalize the political process here, I mean, literally no crime was committed until after the investigation began. I mean, is it the type of thing where -- anybody, if you don't have a correct memory on 100 different levels, that you're really...
BOIES: Well, see, that's the problem. That's exactly the problem. People can't remember everything. Now, people have got to tell the truth in front of a grand jury. That's very important.
BOIES: And if you're conducting an investigation where you really need to get people's testimony, and they lie, they need to be prosecuted, even if you ultimately conclude there was no underlying crime.
But that's not really the situation here, as I see it, because, from the outside, it looks like the prosecutor knew before some of this testimony was taken that there was not an underlying crime. And then to go forward and try to get people maybe to slip up, make a mistake, so you can bring a perjury or obstruction charge, I think that is what's troubling here.
HANNITY: Bob Novak, there are a lot of people that had faulty memories here. Ari Fleischer had a faulty memory. Judith Miller had a faulty memory. The CIA operative that testified had a faulty memory in this case. There was even issues involving Tim Russert's testimony in here, what he had said to the FBI versus what he ultimately testified to. But yet there was one guy who was prosecuted. Does it seem fair to you?
ROBERT NOVAK, FOX NEWS CONTRIBUTOR: No, it doesn't. But I think Mr. Boies has it exactly correct, when, first -- but I would go a step beyond that. I don't believe there ever should have been a special counsel appointed. I think the president and the then-attorney general, Mr. Ashcroft, are to blame for that. This should have been handled in the Justice Department.
They knew, they knew, three months before Mr. Fitzgerald was named as a special counsel, they knew that Deputy Secretary of State Richard Armitage was the source who gave me Valerie Plame Wilson's name. They knew that at that time, and so there was absolutely no need for a special counsel. They could have decided whether the Agents Identity Act had been violated or not.
HANNITY: And we do know, Laura Ingraham, that, in fact, it was not identified. I had spoken with, you know, Victoria Toensing, who was one of the authors of the 1982 act. She [Plame] was not covert. She did not meet the criteria, in any way, shape, matter or form as a covert agent.
And, number two, they knew who the leaker was very early on here, so then it raises the question, once it was appointed, once the prosecutor was appointed, and once the prosecutor knew these facts, why didn't he just dispose of it at that point?
LAURA INGRAHAM, RADIO TALK SHOW HOST: Well, Sean, I think this is one of the greatest miscarriages of justice that I've seen here in Washington in quite some time.
Now, David deals with all of these issues all the time with overzealous prosecutors, prosecutors with a lot of time on their hands. But for this man to be prosecuted for having a faulty memory, when, as you pointed out, Walter Pincus had a memory that was different from the other reporters, Bob Woodward had a different memory. No two people had the same recollection of the same conversation.
And, yet, we're supposed to believe that Scooter Libby went into the grand jury knowing that Tim Russert would be testifying and could contradict him if he purposely lied? To me, it makes absolutely no sense. The person who impeded the process, Sean, in this, in my mind, is, unfortunately, Patrick Fitzgerald.
ALAN COLMES, CO-HOST: This is not a faulty memory, Laura. This is not -- you're making very light of this.
INGRAHAM: No, but, I don't know who -- Alan, do you remember what you did on the show three days ago, your show?
COLMES: I don't know what I had for dinner tonight. But that's another issue.
INGRAHAM: Yes, precisely.
COLMES: But I'm not under oath. Count one, obstruction of justice.
HANNITY: Do you swear to tell the truth?
COLMES: He intentionally deceived the grand jury about how he learned and how he disclosed to the media information about Plame. Making fault statements, intentionally lying to the FBI agents about a conversation with Tim Russert.
INGRAHAM: That wouldn't do it.
COLMES: Count four, perjury when he lied about in court...
INGRAHAM: You are reading the count. That doesn't make it any more compelling.
COLMES: Count five, perjury, lied in court about conversations with other reporters.
COLMES: This is intentional deception and lying.
INGRAHAM: Alan, you're reading the counts. But my point is this.
COLMES: These are what is he convicted of.
INGRAHAM: If we are going to criminalize an individual's actions, where he does not remember to the extent that maybe we think he should, to me, that impedes the grand jury process. I don't know who would not take the Fifth at the grand jury.
NOVAK: Can I say something, Alan?
COLMES: This is not just about memory, David. This is about actually lying to a grand jury and lying in court. It's not simply faulty memory. He's being accused of obstruction of justice and lying.
BOIES: He's being accused of that, and he's convicted of that, OK? But the problem is, the problem is, that when you've got a lot of things going on, people forget.
Now, I think he was badly advised when he went in front of the grand jury, OK? Because I don't think he was proper -- and I said the same thing about the Martha Stewart case.
I think people have got to be extremely careful when they go in to talk to prosecutors and talk to grand juries, because if they make a slip, they put their fate in the hands of the prosecutors. Now, I think the prosecutors have a responsibility to exercise a lot of restraint, but you can't always count on that.
COLMES: Bob Novak, I didn't hear the conservatives say anything other than "rule of law" when Bill Clinton was impeached. They tried to run him out of office. What's the underlying crime there? They were out to get Clinton. I don't hear the same standard here.
NOVAK: I don't think we're going to debate the Clinton case tonight, Alan.
COLMES: We're debating hypocrisy.
NOVAK: Although you might like to. But I would like to say two things. Number one, I was advised -- I testified before the grand jury, before the FBI, and I was advised by my lawyer to tell the truth at all times. And if I couldn't remember something, say you don't remember. And that is the way you keep out of trouble.
The second factor is, that, Alan, you commented that Lewis Libby gave material to the media, gave the identity of Valerie Plame to the media. That is not true. Her identity came out in my column, which was given to me by the deputy secretary of state, Richard Armitage. Libby had nothing to do with it!
COLMES: Could I could Patrick Fitzgerald? October 28, 2005, in a news conference, he said, "Mr. Novak was not the first reporter he told that Wilson's wife, Valerie Wilson, Ambassador Wilson's wife, worked at the CIA. Several other reporters were told." That's what Patrick Fitzgerald said.
NOVAK: Well, the case that came out, and it came out in print, was in my column for the first time, and then it became public knowledge. Now, where was Mr. Armitage in all of this?
INGRAHAM: Yes, why didn't he testify?
NOVAK: Why didn't he testify? Isn't that a good question?
COLMES: Was Fitzgerald wrong to say that you were not the first reporter to find out, other reporters were told by Libby the identity of Valerie Plame prior to you?
NOVAK: I don't know if they were told by Libby. They were told -- Mr. Woodward was told by Armitage. I'm not sure that anybody knew before Armitage, and that was he was told before Woodward, and he was told by Armitage. I mean, Libby is the scapegoat on this whole thing...
HANNITY: He really is.
NOVAK: ...and I think it's very unfair.
HANNITY: It's unfair.
And, by the way, you know, in Clinton's case, it wasn't a failure of recollection or omission. Remember, he had this woman, Monica Lewinsky, prepare a false affidavit, testified to the truth. But, listen, we also know that he sought, you know, to fix the outcome in a case, very, very different and far more severe.
COLMES: No underlying crime there.
HANNITY: And he's no Sandy Berger, stuffing documents in his pants.
COLMES: No underlying crime.
HANNITY: We're going to pick up the debate in just a moment.
COLMES: Welcome back to "Hannity & Colmes." We now continue with syndicated columnist and FOX News contributor Robert Novak, radio talk show Laura Ingraham, and former Gore attorney David Boies.
David, let me go back to you, this issue of underlying crime -- again, with Bill Clinton, no underlying crime, political witch-hunt to get him out of office.
Fitzgerald said Libby's obstructions -- and he was convicted of obstruction of justice -- prevented him and the grand jury from determining whether an alleged leak violated federal law.
So how do you get to the crime? How do you know about it, if there's obstruction in the first place?
BOIES: But the problem is, I don't see any evidence that that's right. That is, I don't see any evidence that they needed Libby's testimony to determine whether there was a crime or not. They knew who leaked it, OK? They know who leaked it.
COLMES: Who leaked it?
BOIES: Mr. Armitage. That's what all the testimony...
COLMES: All right, but did Libby do it at the direction -- was he acting at the direction of Dick Cheney? Does Dick Cheney...
BOIES: But Dick Cheney and Libby, according to the evidence, didn't leak it, OK? They leaked it. We know who leaked it. Now they can determine whether that's a crime or not. Maybe it's a crime; maybe it's not a crime. I don't know that.
But what I do know is that they don't need, at least from the outside, they don't need a grand jury to take all this testimony and trip people up to determine whether or not there's a crime.
COLMES: All right. Now, Bob Novak, is this a problem for Dick Cheney, in that Libby, in this case, was acting under the direction of Dick Cheney? Is this a political problem for the president and the administration?
NOVAK: Well, I think you said one of the funniest things I've heard, Alan, when you said, was Dick Armitage operating under the orders of Dick Cheney?
COLMES: No, I was talking about Libby, not Armitage, Mr. Novak.
NOVAK: They detested each other.
COLMES: But I'm glad I could make you laugh.
NOVAK: Well, it's funny.
COLMES: But that's not what I was saying. I said Libby.
NOVAK: The interesting thing is that Mr. Boies is quite correct, that Mr. Armitage was the source of this. He told it to Woodward. Then he told it to me. I was the one who wrote it in the column, and that is the way it got out to the public, not through Lewis Libby.
Now, let me tell you something else, that when it became clear that the federal government was investigating this, and only then, Mr. Armitage went to the Justice Department and, in effect, turned himself in. That information was handed -- that was handed to Mr. Fitzgerald three months later when he became special prosecutor. So there was no need to go to Libby at all.
COLMES: Did Libby lie under oath or not?
NOVAK: I don't know. It's irrelevant. It's irrelevant to the case.
COLMES: It was very relevant when Clinton did it.
And, Laura Ingraham, I just can't get over the double standard here. You guys were after this guy, lied under oath, rule of law, rule of law.
INGRAHAM: Well, let's actually talk about this case, Alan, because if you're all for civil liberties, and fairness, and justice, you should understand what's going on here. And when you have a juror come out today and say that he asked in the jury room, "What is this guy doing here? Where is Karl Rove? Where is Vice President Cheney?"
INGRAHAM: And they admitted that they thought Scooter Libby had a bad memory, this is just bizarro world, OK? This is bizarre that this case would have gone this far when they knew who leaked this information, and they knew that this was not a situation where Valerie Plame, at this point in time, at least, was a covert agent.
This investigation should have been shut down, and Patrick Fitzgerald should have gone on his merry way to prosecute other people. And this is typical Washington "gotcha" politics. And, Alan, for all the stuff that you say about this, you should, of all people, understand.
COLMES: I believe in the rule of law.
HANNITY: But you're disputing this issue of covert agent. Let me tell you why I disagree with you.
HANNITY: Because, well, first of all, we had one of our own FOX News contributors that said Joe Wilson himself had identified that she worked there. The criteria that was set up in the intelligence act, Victoria Toensing helped author this thing, she had to be covert, overseas five years or more. She didn't meet the criteria. And it was a well-known, established fact. And had they allowed people like [NBC's] Andrea Mitchell to testify, who had made statements in the past, it was well-known she was not a covert agent, which was supposed to be at the heart of this, that they were exposing her to danger.
Now, fascinating -- you know, the prosecutor early on in this case said that, in fact, she was and that she'd be in danger, and he mentioned it again in closing arguments. That seems to be an outright lie by the prosecutor himself.
BOIES: Well, I do think that you need to prove what you're going to argue to the jury. And I don't really know the answer whether she was a covert agent or not under the law. I think it's very complicated, and I just don't know the right answer to that.
BOIES: What I do know is what I was saying before, is I don't think you needed this grand jury investigation to make that determination. That's a question of law. Now, Mr. Armitage did the right thing. He came forward, and he said, "This is what I did."
HANNITY: Why didn't he come forward publicly? Wouldn't that have put an end to this whole thing?
BOIES: Well, he came forward -- you don't generally have to do that. I mean, generally you go forward to the Justice Department, and they make the right decision. I mean, remember, this is one of those cases in which, although my personal view is it shouldn't have been brought, once it was brought, I disagree with Laura. I think it was almost inevitable he was going to get convicted.
HANNITY: Explain why.
BOIES: Because what you've got is you've got somebody, an important person, accomplished person, who says untrue things to a grand jury.
HANNITY: Supposedly, allegedly.
BOIES: Well, no, he says untrue -- a lot of things he said, I think there's no doubt that they weren't true. It's not a question of lying. It could be bad memory. It could be a mistake. But when you're a defendant trying to convince a jury that you just made a mistake in front of a grand jury...
HANNITY: That's hard.
BOIES: ... that's very hard.
HANNITY: What's amazing for me, for them to have come to that conclusion, they had to believe the contradicting testimony of almost everybody else in the case, which is fascinating to me. You know, they were even asking, well, how do you define reasonable doubt? It was one of the questions that they put back towards the judge. I'm like, if you don't know what reasonable doubt is three days ago, how do you know what it is now?
BOIES: That's one of the great risks of a defendant. Do you go on the stand and tell your story? Or do you be silent?
NOVAK: Don't you think it was remarkable that a juror, though, is saying we should have had Karl Rove there? I thought that was one of the most amazing things...
INGRAHAM: And a Washington Post writer. I mean, how...
INGRAHAM: David should tell us how a Washington Post writer didn't get struck from this jury.
HANNITY: Well, and how he was advocating for people that had a political view that was opposite of the president in jury selection.
COLMES: David, according to Fitzgerald, at the time of the leak, Plame was chief of operations for the CIA's joint task force in Iraq, mounting espionage operations to gather information on WMD programs. Sounds like a pretty serious job.
BOIES: I just don't know whether she was a covert agent or not. Maybe she was.
COLMES: That's what Fitzgerald says.
NOVAK: No evidence that she was a covert agent was ever presented to the jury.
INGRAHAM: Thank you. The judge wouldn't let it in, guys.
INGRAHAM: The judge wouldn't let them consider it.
COLMES: Thank you all very much.
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