The Libby indictment appears legitimate, not a witch hunt

[alnorth]

First, I am a card-carrying money-donating member of the Republican party. I get so much junk mail from Bush and the gang that I have probably thrown the equivalent of a small tree in the trash.

Listening to talk radio the past couple weeks, its pretty clear that the right wing was preparing an arguement that Fitzgerald is being political, unfair, whatever. However, when you look at the details behind this story, I am convinced that Fitzgerald is a responsible prosecutor, and an ethical man trying to do his job. If he was a partisan hack, he probably could have cobbled together a weak shoddy Rove indictment for the moveon.org masses, who cares if it gets thrown out later. However, the evidence isnt there to support criminal charges against him, so he exercised restraint.

I know that a lot of people will be screaming that the Plame leak was not a crime, and they are right... but thats not the point. In order for this to be a crime, Plame would have to be NOC (which she was, many in the CIA have quietly said that she no longer needed to be NOC, and should have had that status removed, but the fact is they did not remove NOC status, so her status needed to be respected). The leaker (in our case, Scooter Libby) had to know she was NOC (a possible ignorance defense here, he knew she was an employee, but not under protected status, yada yada yada, but hard to believe). Finally, in order for this to be a crime, she needed to have been on an overseas covert mission within a few years before the leak. In her case, she was not, her last covert mission outside the US was long ago before she decided to settle down in a desk job within the CIA to have children.

So, according to statute, we dont have a crime here. That doesnt mean an investigation should not have taken place. If not illegal, the disclosure of a agent under NOC is troubling and unethical. If theres no crime, then we should at least find out why it happened and correct it.

So, we have an investigation here, and a legitimate one. Libby testified to the grand jury that he heard about Plame from Tim Russert, and then subsequently confirmed what he had heard from the media when asked by Judy Miller and Matt Cooper. Tim Russert claims they never discussed Plame at all. At this point, Fitzgerald knows that either Scooter Libby or Tim Russert is making false statements to the grand jury, so he's pretty much obligated to charge one of them with perjury. After further investigation, he decided that Scooter Libby did not tell the truth, and so thats what happened Friday.

We dont have a crime in the original complaint, but we had a compelling public interest to investigate what happened, and if no crimes occured, at the very least we could fix what went wrong. This is a noble task, and lying should not be tolerated any more than we would tolerate lies in a murder investigation. Rather than angrily denouncing the indictment and demanding an indictment against Tim Russert, Libby's lawyer is now beginning to spin the defense of the busy overworked government servant who couldnt possibly remember every conversation in detail.

This defense could work, in order to commit perjury, you have to know that you lied. This charge will be very difficult to prove in court, and in the end Libby will likely plea bargain out of it, or get off altogether. However, the facts behind the case have pretty much convinced me that the whole thing shouldnt be ignored either. If he's found not guilty, so be it.

I had to testify in a lawsuit recently, and my lawyer told me, over and over again before it was time to swear an oath, that "I dont know" or "I dont remember" is a perfectly valid answer. If your not sure, then for the love of God do not testify that you are sure.

I'm sure Scooter could afford to hire a more skilled attorney than the rural Kansas lawyer I had, and if Scooter Libby testified under oath in a federal investigation in front of a grand jury that he knew what happened when he really didnt remember, then I have no sympathy for him. If he's going to use the "my client didnt remember" defense, the time to do that was in the grand jury room, I am convinced that Fitzgerald is not a partisan hack, this idiot did it to himself.

[Taco John]

For what it's worth,Rove is still under investigation.

[DanT]

I just finished reading the indictment. It's almost impossible to believe that Mr. Libby tried to pin his knowledge of Mr. Wilson's wife's identity on Tim Russert, of all people.

Anyway, here's what Tim Russert had to say about it. (The following page includes a hyperlink to the 22-page published indictment.)

http://www.msnbc.msn.com/id/5961048/

[dirk digler]

Very good honest post alnorth. Libby did this to himself and as patteau pointed out in another thread this is a they vs Libby not a he said she said issue.

Libby is in big trouble and he has no one to blame but himself for being very,very stupid.

[DanT]

... Libby did this to himself and as patteau pointed out in another thread this is a they vs Libby not a he said she said issue.

...

Here's how Tim Russert put it:


...

So clearly the special counsel has made a judgment that, when taking the comments and statements of Matt Cooper, and Judy Miller and myself, as opposed to Scooter Libby, he has decided Mr. Libby was not telling the truth.

...

http://www.msnbc.msn.com/id/5961048/

[dirk digler]

Here's how Tim Russert put it:


http://www.msnbc.msn.com/id/5961048/

Yep and I would throw in VP Dick Cheney and Ari Fleischer as well because apparently one or both testified they had converstations with Libby about Plame prior to him leaking the info. I know Ari did but don't know what the VP testified too.

He is screwed big time.

[alnorth]

Yep and I would throw in VP Dick Cheney and Ari Fleischer as well because apparently one or both testified they had converstations with Libby about Plame prior to him leaking the info. I know Ari did but don't know what the VP testified too.

He is screwed big time.

I agree, not only do you have three reporters, the VP himself might have unwittingly condemned his own guy. If the "I am senile and did not remember" defense does not work, then Libby is one dead duck.

[the Talking Can]

If he's going to use the "my client didnt remember" defense, the time to do that was in the grand jury room, I am convinced that Fitzgerald is not a partisan hack, this idiot did it to himself.

cnn (http://www.cnn.com/2005/POLITICS/10/29/leak.probe.ap/index.html)


Libby lawyer hints at defense strategy
Former Cheney aide indicted on five charges

Saturday, October 29, 2005; Posted: 2:21 p.m. EDT (18:21 GMT)


WASHINGTON (AP) -- The lawyer for Vice President Dick Cheney's former top aide has begun to outline a possible criminal defense that is a tradition in Washington scandals: A busy official immersed in important duties cannot reasonably be expected to remember details of long-ago conversations.

Friday's indictment of I. Lewis "Scooter" Libby involves allegations that as Cheney's chief of staff he lied to FBI agents and a federal grand jury.

Libby, who resigned immediately, was operating amid "the hectic rush of issues and events at a busy time for our government," according to a statement released by his attorney, Joseph Tate......

[the Talking Can]

Yep and I would throw in VP Dick Cheney and Ari Fleischer as well because apparently one or both testified they had converstations with Libby about Plame prior to him leaking the info. I know Ari did but don't know what the VP testified too.

He is screwed big time.

I am assuming that every official named in the indictment by Title (like "undersecretary of blah blah") is going to testify against Libby, having already done so before the Grand Jury - some, no doubt, to save their own asses.

[DanT]

...

I know that a lot of people will be screaming that the Plame leak was not a crime, and they are right... but thats not the point. In order for this to be a crime, Plame would have to be NOC (which she was, many in the CIA have quietly said that she no longer needed to be NOC, and should have had that status removed, but the fact is they did not remove NOC status, so her status needed to be respected). The leaker (in our case, Scooter Libby) had to know she was NOC (a possible ignorance defense here, he knew she was an employee, but not under protected status, yada yada yada, but hard to believe). Finally, in order for this to be a crime, she needed to have been on an overseas covert mission within a few years before the leak. In her case, she was not, her last covert mission outside the US was long ago before she decided to settle down in a desk job within the CIA to have children.

So, according to statute, we dont have a crime here. That doesnt mean an investigation should not have taken place. If not illegal, the disclosure of a agent under NOC is troubling and unethical. If theres no crime, then we should at least find out why it happened and correct it.

So, we have an investigation here, and a legitimate one. Libby testified to the grand jury that he heard about Plame from Tim Russert, and then subsequently confirmed what he had heard from the media when asked by Judy Miller and Matt Cooper. Tim Russert claims they never discussed Plame at all. At this point, Fitzgerald knows that either Scooter Libby or Tim Russert is making false statements to the grand jury, so he's pretty much obligated to charge one of them with perjury. After further investigation, he decided that Scooter Libby did not tell the truth, and so thats what happened Friday.

We dont have a crime in the original complaint, but we had a compelling public interest to investigate what happened, and if no crimes occured, at the very least we could fix what went wrong. This is a noble task, and lying should not be tolerated any more than we would tolerate lies in a murder investigation. Rather than angrily denouncing the indictment and demanding an indictment against Tim Russert, Libby's lawyer is now beginning to spin the defense of the busy overworked government servant who couldnt possibly remember every conversation in detail.

...



Andy McCarthy interprets the facts in the indictment to mean that there may have been an underlying crime committed under 18 USC 793, the Espionage Act (http://caselaw.lp.findlaw.com/casecode/uscodes/18/parts/i/chapters/37/sections/section_793.html). He's a former Federal prosecutor and current columnist at www.nationalreview.com. He posted the following in "The Corner" on Friday evening:

http://corner.nationalreview.com/05_10_23_corner-archive.asp#081180

THE INDICTMENT DOES NOT ALLEGE ALL COVER-UP AND NO CRIME [Andy McCarthy]

The indictment does not allege an offense of the espionage act (18 USC 793), but it does indicate there may well have been one.

There are several crimes laid out in the espionage act, but the one that applies most closely on these facts requires the government to prove that a person (a) obtained classified information lawfully (e.g., in his official capacity), communicated it to someone not entitled to receive it, and (c) did so willfully.

The indictment charges the mere fact that Plame worked at the CIA was classified information. (“At all relevant times … Valerie Wilson was employed by the CIA, and her employment status was classified.”)

It is worth noting that many people, including me, have been wrong about this. I assumed that the fact that she was a CIA employee was well-known and not classified, but that some aspect of her relationship with CIA was covert and classified. The latter may be true (Fitzgerald, as he should have, declined to comment on it), but it turns out to be not so important because the very fact that she was a CIA employee was classified. It really doesn’t matter whether we think it should have been classified or not. The fact is that it was. People privileged to handle classified information well know that they mustn’t disclose it even if they personally think there is no good reason for it to be classified or that some higher purpose of theirs would be served by disclosing it.

So, if the allegations in the indictment are true, then Libby did obtain classified information in his official capacity and he did share it with reporters who were not entitled to receive it. The rest of the equation is: did he act willfully?

Fitzgerald did not charge an espionage act offense. To the extent he spoke about the act today, he explained that he thought it was a statute that had to be used very judiciously to avoid its becoming a British-style official secrets act. That is the policy reason for not charging it, and it could be argued either way. I think he was right, but reasonable minds could differ.

What also could be argued either way is the obvious evidence reason for not charging the espionage act, which is the difficulty of proving willfulness. Pat did not go into this today – again, appropriately; as he noted the prosecutor’s job at this stage is to announce charges, not vouch for them, and not to discuss charges or persons not indicted. But that doesn’t mean we can’t analyze it.

Willfullness is a high mental state in the criminal law. Although the adage that “ignorance of the law is no excuse” generally does apply, a willfulness requirement in a statute comes close to making ignorance of the law a defense. The government must prove that the defendant was fully aware of the unlawfulness of his actions (not that he knew the statute number of the crime but that what he was doing was illegal) and that he performed those actions with a bad purpose.

There is basis in the indictment to suspect that Libby acted willfully – he is alleged to have done a lot to inform himself; to have asked Judith Miller not to source him as a senior administration official but as a Hill staffer (strongly suggesting that he knew what he was saying should not be said); and to have lied about what he said and how he knew what he knew (strongly suggesting he was worried about having said what he said, and worried about having it revealed that he came about the information officially rather than casually).

On the other hand, though, Libby also clearly was not trying to out Plame for the purpose of endangering her, punishing Wilson or harming the CIA. He was trying to do something that was legal and appropriate: to discredit Wilson and knock down Wilson’s misleading story about why he was sent to Niger. He should not have done it the way he appears to have done it, but he surely was not doing what Wilson and the Left have been claiming.

So, while Libby may have had a bad purpose as far as the law is concerned, he did not have a purpose to do damage to the country or help an enemy. That is what the espionage act is most concerned about. Under the circumstances, he was given the benefit of the doubt on his state of mind. I think that was an appropriate exercise of restraint on Fitzgerald’s part. The charges brought are serious ones. There was no reason to bring a questionable one just to rebut a talking point about how it’s only a cover-up and not a crime.

Posted at 07:04 PM

The pertinent paragraph from 18 USC 793 might be paragraph (c). --DanT

[DanT]

Andrew McCarthy added the following post this morning: (--DanT)

http://corner.nationalreview.com/05_10_23_corner-archive.asp#081180

WHAT SMEAR? [Andy McCarthy]
Some observations from the wrenching experience of watching TV last night and witnessing people I admire – people who were on the right side of the Clinton wars and have heretofore been strong rule-of-law conservatives – engage in what is a startling defense of the conduct alleged against Scooter Libby.

The claim that Libby is being smeared with the allegation that he leaked classified information even though he hasn’t been charged with it, and that because he has not been charged he has no way to get his good name back from the said smearing, is specious.

This is not a case where a person has not been charged with any crimes at all, where the government doesn’t have the nerve to put its money where its mouth is, or where the government itself is leaking out damaging innuendo. The government has not filed a bare-bones indictment, as it could legally have done. Instead, the special prosecutor has given Libby elaborate notice, extensively describing his alleged conduct. We are not at a loss here to make our own judgments about what the conduct means if it is proved.

Like it or not, the mere fact that Plame was employed by CIA is alleged to have been classified. Libby is alleged to have learned this fact in his official capacity. He is alleged to have told it to Judith Miller of the New York Times, a person not entitled to receive classified information (and to have implicitly confirmed it for Matthew Cooper of Time, another person not entitled to receive it). Here on Planet Earth, this is known as leaking classified information.

For the reasons I discussed yesterday, this potentially makes out a violation of the espionage act. However, the supposedly intemperate, smearing prosecutor, Pat Fitzgerald, gave Libby the benefit of the doubt on his mental state (and for policy reasons pertaining to overzealous enforcement of the espionage act). He exercised discretion not to charge the leaking as a separate crime.

The leaking is, nonetheless, essential to proving the crimes that actually are charged – obstruction, false statements to investigators, and perjury. If, as his apologists claim, Libby has been done an injustice on this point, it will be very easy for him to get his good name back. All Libby has to do is demonstrate at trial that either one of two things is not true: (a) that Plame’s employment with CIA was classified information; or (b) that Libby disclosed that information to a person not entitled to receive it.

Anyone think he will even try? Anyone think the people who are making the smear claim will try to take on either of these two very simple, straightforward allegations?

Look, if you want to say Libby is not guilty of a leaking crime because he did not have the required mental state, that’s a fair argument. But let’s face it honestly: he is a smart guy and a high public official who appears to have performed all the acts one has to perform to commit a leaking crime. To contend that he is being smeared is absurd.

And Fitzgerald plainly cut him a break by not charging him with the espionage act. Maybe Libby could have beaten such a charge. But maybe not. Do the people making this smear argument really want to live in a country where a prosecutor charges every conceivable crime that may have been committed? And for no better reason than to rebut a red herring of a talking point?

If convicted, Libby’s already looking at 30 years’ exposure under the statutes that have been charged (although much less under the sentencing guidelines). Would his sympathizers actually prefer to see him facing 40 years, with 10 tacked on for the leaks?
Posted at 08:05 AM

[the Talking Can]

Andrew McCarthy added the following post this morning: (--DanT)

http://corner.nationalreview.com/05_10_23_corner-archive.asp#081180

WHAT SMEAR? [Andy McCarthy]

Like it or not, the mere fact that Plame was employed by CIA is alleged to have been classified. Libby is alleged to have learned this fact in his official capacity. He is alleged to have told it to Judith Miller of the New York Times, a person not entitled to receive classified information (and to have implicitly confirmed it for Matthew Cooper of Time, another person not entitled to receive it). Here on Planet Earth, this is known as leaking classified information....


But let’s face it honestly: he is a smart guy and a high public official who appears to have performed all the acts one has to perform to commit a leaking crime. To contend that he is being smeared is absurd.

And Fitzgerald plainly cut him a break by not charging him with the espionage act.....
Posted at 08:05 AM

correct

[DanT]

Later on "The Corner" at National Review Online, Mark Levin made two replies to Andrew McCarthy, both are interesting:

RE: ANDY'S LATEST POST [Mark R. Levin]
I find it refreshing that people I admire are on TV and elsewhere are explaining to the American people that this indictment does not charge Libby with underlying offenses -- that is, the great offenses to national security related to outing a covert CIA agent. Andy says that but for Patrick Fitzgerald's kindness, Lewis Libby could have been charged with passing illegally classified information to reporters, specifically the identity of Valerie Plame which, in itself, is classified. (For weeks we've been told that Fitzgerald is tough as nails; today we are told he's a pussy cat.) Nonsense. Frankly, this has the smell of Lawrence Walsh, who claimed that top Reagan officials violated various laws without charging them, and his defenders waived around Walsh's public statements as evidence of crimes. It then becomes impossible for someone like Libby to defend against such allegations because they're not made in the form of a charge. Andy falls into this unfortunate trap in his latest post, and with only his friend's indictment in hand (so much for waiting for all the facts, which we were urged day after day to the lead up of this indictment). Libby deserves the same benefit of the doubt demanded of Fitzgerald and his amen corner. Indeed, the law compels it, and more. Please, spare us the lectures about the rule of law when the legal process hasn't even had a chance to play itself out, and Libby is condemned as all but guilty without the benefit of due prcess.

Now, as for Plame being classified, I have read the indictment several times, and other than Fitzgerald's assertion, the fact is that we have nothing but an assertion. What exactly is her classification, and is it in fact classified? Of course the relevance of this will be explored by defense counsel, and this will be put to the test if necessary. Let me suggest that Fitzgerald didn't bring a straightforward charge on this point because, as Andy in truth concedes, he couldn't meet all the elements of the statute, and the statute itself is not typically used in this fashion.

Finally, you bet Fitzgerald smeared Libby during his press conference. All the talk about violations of national security, outing a CIA official, and harming CIA recruitment was nothing more than a well-rehearsed public relations speech intended to paint these indictments as something more than they are (albeit serious in their own right). And that is why, I believe, we have strained efforts now to accuse Libby of passing classified information without the benefit of an actual charge.
Posted at 10:11 AM
http://corner.nationalreview.com/05_10_23_corner-archive.asp#081186

ONE MORE THING [Mark Levin]

I feel there's some need for clarification. I have nothing but the highest regard for my friend Andy McCarthy, and his insight is both unique and always intelligent. Perhaps I appear as a special pleader for Lewis Libby. I am not. I don't know the man, and have never met him. But I do think we benefit from a good exchange on the facts and law, and not simply accept a prosecutor's allegations at face value. That's not how the legal system works. That's how litigation works. So, a one-side analysis is not a realistic analysis. It's not my intention to be one-sided, but to contribute to the excellent points Andy and others have and are making.

Obstruction in its various forms (perjury, false statements, etc.) is, of course, very serious. But at the present stage in Libby's case are charges not fact. If the charges are found to be true by a trial jury (assuming no plea agreement), then Libby, like anyone else, has committed very serious federal crimes. No one should downplay this, and I don't think most people are. But that's not to say Libby has committed criminal acts that have endangered the national security of this country. And this is where I found Patrick Fitzgerald's press conference over-the-top. I have now read through the transcript of his press conference, and come away even more troubled. I believe the impression he hoped to leave with the American people, most of whom won't bother to read the actual recitation of facts and actual charges in the indictment, is that Libby endangered his own country.

On another point, some are struggling with arguments that seek to draw parallels between Clinton and Libby respecting perjury. It is not my intention to dismiss all such analogies, but to point out at least one significant fact which, in our desire to be consistent should not be overlooked. Bill Clinton was actually held in contempt by Judge Susan Webber Wright. She made an actual finding that Clinton made "intentionally false statements" on several occasions during his sworn deposition testimony. As the judge noted in her ruling, Clinton had a right to a hearing to challenge her decision, in which he could provide testimony and evidence in his defense. Clinton chose not to. In other words, he accepted Judge Wright's finding without challenge. As a result, his law license was susupended for five years, he was forced to resign from the Supreme Court Bar, and he paid fines. In Libby's case, he is accused of prejury, false statements and obstruction. He has yet to defend. So, while the seriousness of the charges are not to be downplayed, they are merely charges and, at this point, nothing more. Some argue they are strong charges. They may well be. But we've yet to hear from Libby and his lawyers.

And, of course, this is all a far cry from Joe Wilson's allegation that Karl Rove outed his wife, a purported CIA covert agent, which is how all this began. In the end, we will learn that Rove was not Bob Novak's source, Plame was not covert, and Joe Wilson remains a liar.


Posted at 12:26 PM

http://corner.nationalreview.com/05_10_23_corner-archive.asp#081194