I think Scooter Libby is a very unwise person if he lied to FBI investigators and the Grand Jury. And I think the latest revelations that he made statements about learning of Plame’s identity solely from reporters after having had a conversation–confrmed with notes–regarding Plame with Dick Cheney make a pretty strong case against him.
That said, I think this case, like the Martha Stewart case, has a real problem. It’s an obstruction case related to the obstruction of an investigation for an underlying act that may have not been a crime. When asked if the underlying conduct was a crime, Patrick Fitzgerald said essentially that it could not be determined, in part, because of the obstruction he faced from Scooter Libby, comparing his acts to throwing sand in a baseball umpire’s eyes. Fitzgerald said, “But let’s assume, for the moment, that the allegations in the indictment are true. If that is true, you cannot figure out the right judgment to make, whether or not you should charge someone with a serious national security crime or walk away from it or recommend any other course of action, if you don’t know the truth. ” This can’t be the situation he faces. Either she has the status of an agent whose identity may not legally be disclosed under the Espionage Act or she does not. This does not hinge on Libby or anyone else’s recollection of the details of the leak. Her status is the sine qua non of the underlying offense. It’s the type of question that needs to be asked first, and the answer could be determined quickly and easily by reviewing her status at the CIA and comparing it to the relevant law. This finding should have been made before any other activities in the investigation. While Fitzgerald is fond of baseball analogies, consider this one. It’s as if someone were charged with the “crime” of playing baseball without a license. After months of investigation, it turns out one of the players did not want to admit to investigations that he played a bit of pickup ball in the old HS stadium. (Perhaps it was embarassing, not least because it occured during the work week). He’s charged with obstruction. Millions were spent. But it turns out the underlying conduct was not a crime, and this could have been determined before any other investigative acts by resorting to a statute book.
Fitzgerald’s failure to be forthright about whether the underlying leak was a crime is disturbing. Investigations deserve respect, and investigators should not be lied to. But the respect is a two way street. Expensive and intrusive investigations that extend to high government officials and members of the press should be undertaken when a real crime is involved. They should not be ends in themselves, investigating noncrimes or other “gray area” conduct, and then prosecuting the individuals involved for their resistance to the process. For someone that is so indignant about the lies and misleading testimony of Scooter Libby, FItzgerald should look in the mirror, because his failure to answer yes to the questions asked by reporters about the underlying conduct speaks volumes.
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Isn’t the big issue whether there was “intent” to divulge the identity of a covert agent? I’m not up on the relevant statute, but it could be that intent is the key and not whether the agent is actually covert or not.
Even then, the question only of intent is only asked after the status is determined, though you’re right that intention or the lack of it can be hard to discover in the face of obstruction.
But it sounds to me like we’re facing a question of law. (Specifically, we’re wondering if disclosing Plame’s identity was illegal under the Intelligence Identities Protection Act or any other law.) I thought questions of law could only be settled by judges. So I’m wondering: is there any legal procedure under which a judge could issue a decision on the relevant laws before someone is actually charged with a crime?
No more than a fact jury could on the facts. The prosecutor’s job and exercise of discretion should include a firm decision that the underlying conduct is a crime before he proceeds with a factual investigation; it’s common sense.
Having now glanced through the transcript of Fitzgerald’s press conference, it sounds as if James Markels is right and that the only question is one of intent. At the beginning of the conference Fitzgerald said, “In July 2003, the fact that Valerie Wilson was a CIA officer was classified. Not only was it classified, but it was not widely known outside the intelligence community.” Later, he says, “[I]f national defense information which is involved because her affiliation with the CIA, whether or not she was covert, was classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espionage Act.”
Fitzgerald is saying that if the leakers knew Plame’s status was classifed but deliberately leaked it anyway, then they violated the Espionage Act.
Determining whether someone knew that Plame’s status was classified is inevitably going to be a fuzzy matter since you’re trying to assess a person’s state of mind. But under the circumstances, Fitzgerald was probably right to assume the worst and proceed with his investigation. He has declined to indict Libby for violating the Espionage Act, presumably because he doesn’t have sufficient evidence that Libby knew Plame’s status was classified. But that doesn’t mean that whoever told Libby about Plame should automatically get off the hook.
(By the way, I opposed the initial investigation under the principle of “No harm, no foul.” Plame’s classified status seemed dated to me, so I questioned whether her exposure truly damaged national security. But that would not be a judgement for Fitzgerald to make.)