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Thoughts on the Libby Indictment:
All things considered, the Libby indictment handed down today was narrower than I expected. As I read it, all five of the counts come down to Libby's lying to investigators and the grand jury about his contacts with the press. The counts seem pretty clearly valid and tight on the law, although none go to the substantive offense for which Libby was investigated.

  The nature of the counts sheds some light on what we have seen in the investigation for the last two years. In particular, Fitzgerald presumably was focused on getting the testimony of Cooper and Miller because Libby told investigators and the grand jury that he hadn't leaked anything to them; Fitzgerald needed their testimony to prove that false. On an entirely speculative front, Miller and Cooper might have refused to testify because they knew Libby had lied to investigators and the grand jury, and therefore knew that their testimony would directly contradict Libby's and lead to obtstruction and perjury charges. That might explain Judith Miller's reticence to believe that Libby had released her from her duty of confidentiality: Why on earth would Libby volunteer to let Miller hand over evidence that would lead to his felony conviction?

  Finally, it seems to me that Fitzgerald is being pretty careful here. He has Libby in what appears to be a direct lie to investigators and the grand jury, and he's not reaching for more. At least with Libby. At least for now.
Anderson (mail) (www):
Matt Yglesias quotes the indictment:
Shortly after publication of the article in The New Republic, LIBBY spoke by telephone with his then Principal Deputy and discussed the article. That official asked LIBBY whether information about Wilson's trip could be shared with the press to rebut the allegations that the Vice President had sent Wilson. LIBBY responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line.

As Yglesias concedes, you can't take this as proof that Libby knew Plame was covert, but it certainly doesn't look good.

And hey, a lollipop to the first commenter who provides/links a glossary of "Principal Deputy," "Official A," etc.
10.28.2005 3:33pm
Random Law Talking Guy (mail):
Soon, this will all lead back to its source. BOOOOOOOOOOOSSSSHHHHHHHHHHHH!!
10.28.2005 3:43pm
JF (mail):
Well, I just read the indictment, and IANAL, so I'm a little confused. Is there any evidence that Libby lied other than what Cooper and Russert told the Grand Jury? How do we know who is lying, or more benignly, just doesn't remember? I guess there could be notes, but the notes might not reflect a conversation which happened but wasn't written down. Libby says he talked to Russert about Plame. Russert says he didn't... but surely his notes, unless they are verbatim, would have any reference to things that weren't discussed. At that point it's all recollection, isn't it?
10.28.2005 3:50pm
Sue Bob (mail) (www):
Would someone please tell me what proof exists that Plame was a "covert agent"? Shouldn't the investigation have started with investigating that issue? I found nothing in the indictment discussing an investigation of her status--just a comment that her job was "classified" with no mention of proof.

If she is not a covert agent, it bothers me to think that a prosecutor would conduct an investigation seemingly designed to catch people lying about something that isn't a crime--if that is the actual outcome.
10.28.2005 4:00pm
DJ (mail):
Yeah, I'm watching the Fitzgerald presser, and it seems clear to me that there won't be any more charges here. To be sure, the White House is sorry to see Scooter go, but, all things considered, this is a big win for the White House. How to test that conclusion? Watch which side starts griping about Fitzgerald. Seeing as how I'm already hearing whining from the Left about how he's not gonna publish a report of his findings and that he ought to cooperate with a congressional investigation, I think the Dems know that this one hasn't worked out for them.
10.28.2005 4:05pm
AppSocRes (mail):
After 2 (3?) years of intensive investigation, the claims of Wilson and many left-of-center Bush-haters that this administration engaged in a conspiracy to out a confidential agent appear to be unfounded. Shame on the with-hunters who waste our money and resources on partisan vendettas.

Once again, senior officials have failed to realize that it is not mistakes that get you in trouble, but attempts to cover up those mistakes. If Mr. Libby did in fact attempt to cover his tracks, shame on him for his lies.
10.28.2005 4:09pm
Alaska Jack (mail):
Not only am not a lawyer, but am so poorly informed on matters of law as to border on dangerously unqualified.

As an outsider, the whole process seems a little odd to me.

1) A prosecutor mounts an investigation that drags on for years. I'm not excusing anyone here, but it seems to me that, if you bring in witnesses multiple times over that span, you surely will eventually get someone to say something contradictory, or remember something differently, etc.

2) At the end of it all, the only indictments the prosecutor comes up with are ones that directly result from the process of the investigation itself. In other words, if there had been no investigation, there would have been no crime.

I'm sure all you lawyer types can reasonable explain this, but just so you know, it strikes some of us laymen as pretty ... what's the word? Paradoxical?

- AJ
10.28.2005 4:10pm
pbswatcher (www):
Fitzgerald and the indictment are careful not to say that Plame was a covert agent under the IIPA. The "underlying crime" is apparently release of classified information. Sandy Berger will be called to testify to the seriousness of that offense. See Fact Finding
10.28.2005 4:13pm
Dwight in IL (mail):
Sue Bob writes:

If she is not a covert agent, it bothers me to think that a prosecutor would conduct an investigation seemingly designed to catch people lying about something that isn't a crime--if that is the actual outcome.

If the indictments are true (as Fitzgerald points out, the presumption of innocence must be with Libby), then Libby did not simply misremember or omit some trivial detail: he engaged in an intentional and orchestrated attempt to decieve the investigation into believing that he had nothing to do with leaking the information. Whether the leak was illegal or not, what Libby is alleged to have done clearly is illegal. In order for the rule of law to work, we can't allow people to intentionally and systematically mislead grand juries and investigators.

JF, during the press conference, Fitzgerald detailed the many, many pieces of evidence that Libby knew about Valerie Plame's identity via government sources and had discussed her status with various officals. This seems to contradict his testimony to the grand jury. Of course, the facts here are for a trial judge or jury to decide, but if the indictment is true, he was clearly acting to obstruct the investigation.

As a conservative Republican who treasures the rule of law and the notion that our officials aren't above it, I was very happy with what I heard from Fitzgerald during the broadcast. Especially with his polite, determined refusal to gossip about details unrelated to the indictments.
10.28.2005 4:18pm
Shelby (mail):
So after all this we still don't know who told Novak, which either constituted or led to the only arguable underlying offense? How pathetic.
10.28.2005 4:20pm
JF (mail):
Thanks Dwight in IL, and I'm sure you're right about where Libby heard about Plame. There seemed to be lots of stuff about that that seemed sensible. But as to the counts which relate only to his conversations with Cooper and Russert, I'm still mystified for the reasons above. And why are there no charges that say Libby denied any of the conversations you cite with other gov't offivials who told him about Plame? Didn't they ask him? If they did, isn't he guilty of perjury on those counts, too?
10.28.2005 4:24pm
Hemingway:
As I predicted, Harry Reid and other Dems who didn't even think Clinton should have had to resign for his perjury and obstruction of justice are now talking about how serious all this is. "Executive Privilege," I guess.
10.28.2005 4:24pm
Dwight in IL (mail):
AJ, I'm no lawyer type, but here goes:

Why is this appropriate? Because the very act of trying to tamper with evidence is a serious offense. To protect the process is vital, if we are to ever have any confidence in it.

Or, to put it another way, suppose Fitzgerald had said, "Well, we've investigated but due to all of the witnesses constantly lying and misleading us we can't tell what happened. Maybe nobody leaked anything, mabye the President orchestrated a campaign of mass disinformation. We can't tell because everyone changes their story from minute to minute." Wouldn't you be outraged at the behavior of these witnesses? Doesn't this sound like something you'd see in the Third World were the law is regularly trampled upon by those in power?

The rule of law demands that all of those involved submit to the law and to due process. For anyone to believe that their position, their cause, or their virtue gives them the right to rewrite the law on the fly is simply unacceptable.
10.28.2005 4:31pm
nobody (mail):
Sue Bob wrote:

If she is not a covert agent, it bothers me to think that a prosecutor would conduct an investigation seemingly designed to catch people lying about something that isn't a crime--if that is the actual outcome.


I think your complaint is best directed at the President, who ordered that a special prosecutor (or whatever Fitz's title is) be appointed.
10.28.2005 4:32pm
J..:
So after all this we still don't know who told Novak, which either constituted or led to the only arguable underlying offense? How pathetic


We can guess that it was Official A :-)


21. On or about July 10 or July 11, 2003, LIBBY spoke to a senior official in the White House ("Official A") who advised LIBBY of a conversation Official A had earlier that week with columnist Robert Novak in which Wilson's wife was discussed as a CIA employee involved in Wilson's trip. LIBBY was advised by Official A that Novak would be writing a story about Wilson's wife.
10.28.2005 4:33pm
xyzzy9:
But by the same token, how many Republicans who incessantly invoked the phrase "rule of law" during the Clinton proceedings will apply the same standard to the White House now?

Fox News is already suggesting we look at what exactly Libby lied about, as if to say, if the lie was on some tangental issue, maybe it's not such a big deal.

A lie's a lie in my book... EJ Dionne noted that "A process that was about "the rule of law" when Democrats were in power is suddenly an outrage now that it's Republicans who are being held accountable."
10.28.2005 4:34pm
Sue Bob (mail) (www):
Dwight in IL, I agree with your point. Still, it seems to me that the first step should have been to ascertain whether or not Plame was a covert agent or that her identity was "classifed" or "whatever" might make revealing information about her a crime. If that element is not established--why go about trying to catch people in lies?
10.28.2005 4:35pm
Dwight in IL (mail):
JF wrote:

And why are there no charges that say Libby denied any of the conversations you cite with other gov't offivials who told him about Plame? Didn't they ask him? If they did, isn't he guilty of perjury on those counts, too?

Don't know. Maybe they questioned Libby early in the process and only found out later. Could also be that Libby refused to testify about the content of those meetings (under national security, etc.) but other officials were more flexible. Libby's behavior mystifies me, though perhaps it shouldn't. The Clintonistas did much the same back in the early days of those scandals too. Sigh. One day our mandarins will learn that the cover-up is as deadly as the offense.
10.28.2005 4:37pm
Cal Lanier (mail) (www):
"then Libby did not simply misremember or omit some trivial detail: he engaged in an intentional and orchestrated attempt to decieve the investigation into believing that he had nothing to do with leaking the information. "

Exactly. The GJ was convened to determine who leaked that information. Libby apparently did his best to stop the grand jury from finding out who did. If that's not important, then why bother having grand juries at all?

I think it's at least reasonable to wonder if both Libby and Rove (who isn't indicted, but lied publicly about his involvement) did so in order to
keep the story out of the re-election
.
10.28.2005 4:41pm
Morat (mail):

I think your complaint is best directed at the President, who ordered that a special prosecutor (or whatever Fitz's title is) be appointed.

Not even remotely accurate. The CIA -- after an internal investigation -- referred the matter to the Department of Justice. (That is your FIRST clue that Plame was, in fact, undercover.).

The Department of Justice went to investigate, but there was a potential for a major conflict of interest, and so Ashcroft turned the matter over to his Number 2 guy, who appointed Fitzgeral (a US Attorney with a very solid reputation) to investigate the matter.

Because of the potential for conflicts of interest, Fitzgerald was given a relatively wide mandate and little oversight -- this was to ensure that no claim that the investigation was tampered with by officials in the executive branch.

Judging from the press conference, Fitzgerald continues to play his cards very close to his vest. I would not be surprised at all to find more indictments forthcoming. One has to cut through the BS (spelled out in the 5 felony indictments) before one can get to the heart of the matter.
10.28.2005 4:48pm
Anderson (mail) (www):
I don't think you can (1) complain how long the investigation took, and (2) dismiss Libby's alleged crimes.

Obviously, if Fitzgerald's trying to figure out where info about Plame came from, and Libby's lying about it, that drags out the investigation.

As for "covert," is this a formal agency designation? Whether she's covert under the IIPA might be a jury question. And see comment # 1 above.
10.28.2005 4:52pm
Justin (mail):
The problem is that Clinton lied ABOUT SEX and Libby LIED ABOUT HOW HE TOLD TWO REPORTERS THE IDENTITY OF A SECRET CIA AGENT. While, as Kerr noted, Fitzgerald might not feel the need to convict him on the tougher count (which would, amongst other things, require proof of intent, which as many have noted, is exceedingly difficult to prove even if obvious), to say that he didn't do anything or that he's only being prosecuted because he was investigated, and he was cleared of any substantive wrongdoing, are both wrong. First of all, it is likely Fitzgerald would have gone for the harder case if the easier case wasn't available to him. Second of all, it seems pretty clear to me at least that Libby lied about his voyage into at least a grey legal area, rather than lied about something that is legally innocent (like adultery).
10.28.2005 4:52pm
juddy1 (mail):
I'm also a little confused by some of the counts. The Russert count seems straightforward -- either Libby did or did discuss Plame with Russert -- but the other counts, at places, make it seem there is something illegal about lying to reporters and testifying truthfully about those lies to investigators and the grand jury. Maybe it's drafting issue, but at one point the indictment states that Libby stated he didn't even know Wilson was married -- and that was false because he already knew all about her. But isn't there a big difference in telling that lie to a reporter -- that he didn't even know she was married -- in an effort to mislead the reporter (and testifying to the grand jury THAT THAT'S WHAT YOU TOLD THE REPORTER) -- and actually telling the grand jury that that's a fact that you believed at the time (which would be perjury if false)? Is Fitzgerald charging that what Libby said he told the reporter is different from what the reporter testified he/she told them? There doesn't seem to be much substantive difference between the two versions of what Libby testified to and what is alleged to have actually been said -- and they are not really inconsistent -- so I'm a little confused. Am I the only one?
10.28.2005 4:53pm
AppSocRes (mail):

The CIA -- after an internal investigation -- referred the matter to the Department of Justice. (That is your FIRST clue that Plame was, in fact, undercover.).

This is reaching: Actually, based on my experiences in DC, it is SOP for government agencies to refer to the DOJ anything that might - even by the wildest stretch - involve a violation of their prerogatives. Just another aspect of the bureaucratic mind-set. Certainly nothing that would lead one to assume that there was outrage or even upset over this incident among non-partisan employees of the CIA.
10.28.2005 4:59pm
Anderson (mail) (www):
(1) Plame's status could have been classified without meeting the narrow definition under the IIPA.

(2) You can blow an operative's cover without violating the IIPA.

Unless someone can refute one of those two statements, all this "but was she covert?" stuff sounds like misdirection to me.
10.28.2005 5:03pm
keatssycamore (mail) (www):
Could someone explain for me the exact process by which Orin's final sentence, "At least for now" would come to pass procedurally? The grand jury expired today, so do they get to empanel a new one and keep digging, or was it required that this grand jury do the indicting unless Fitzgerald asks to extend the term? I guess this may have to do with the authority he is given as a special prosecutor, but I don't know.

Can anyone help a new visitor to the site out? Thanks.
10.28.2005 5:07pm
Sue Bob (mail) (www):
If Libby did lie and obstruct the investigation--he should be prosecuted and convicted.

That said, why, after two years, do we not know more about what Valerie Plame's actual status was? Why does it seem to be addressed by innuendo and assumption?

And, if Anderson is correct that her status under the IIPA is a jury question--why is the evidence supporting an affirmative answer not detailed in the indictment? Why was the issue of her status not laid out in the "matters being considered by the Grand Jury" part of the indictment? Is that whole issue irrelevant to this indictment?

I prefer it when prosecutions of people for lying and obstruction are associated with actual underlying crimes.
10.28.2005 5:07pm
JF (mail):
But Justin, Libby isn't accused about lying about discussing Plame with Russert... He's accused of lying about NOT discussing her with Russert. And Cooper never asserted that Libby told him about Plame, only that Libby confirmed what Cooper thought to be true. So there's certainly no accusation that Libby leaked Plame's name to anyone, only that he lied about conversations that might lay a claim for a later defense that he was only passing along things he heard from reporters. I'm with Dwight in IL on the obstruction charge, but I still don't understand the perjury charges... I'm with Juddy1 on those. Until some actual facts come out, of course.
10.28.2005 5:07pm
Hugh59 (mail) (www):
Libby should have just refused to answer the questions. You can't be charged with perjury or obstruction of justice if you "claim the 5th." Of course, it is a big red flag to the prosecutor...but if there is NO underlying criminal offense (as may have been the case here), then so what?

I have done a few GJs in my time. I remember one witness who, while not the subject of the investigation, refused to answer several of my questions. Not much I could do about it.
10.28.2005 5:07pm
Kazinski:
A lie is not just a lie. Some lies are definitely worse than others. If Libby lied to the GJ claiming he had been in his office when he had a conversation with Miller, when in reality he had been in his mistress's apartment then I wouldn't expect him to get indicted for that. But if he lied about a) learning about Plame from reporters when the source of the information was Cheney, and b) not leaking to reporters, and he did, then I think that is material and he should be convicted. Whether or not it was the actual leak was a crime. Just as Clinton shouldn't get to make the determination of when lying is OK, neither should Libby. It is the prosecutor's decision on what is material and what isn't, and ultimately the jury's.

This indictment certainly passes the smell test for me. Just as it was pretty obvious that the DeLay indictment didn't pass the smell test. As a dyed in the wool party hack I want corrupt or unethical Republicans smoked out of office even more than I want to see shady Democrats pursued. The fastest way back to a Democratic Congress would be to look the other way at transgressions like these. And I think the standard of co-operation the Administration set of requiring confidentiality waivers, and full co-operation with Fitzgerald reflects that realization. Its just too bad Libby didn't go along with the plan.
10.28.2005 5:12pm
J..:

Could someone explain for me the exact process by which Orin's final sentence, "At least for now" would come to pass procedurally? The grand jury expired today, so do they get to empanel a new one and keep digging, or was it required that this grand jury do the indicting unless Fitzgerald asks to extend the term?

If I heard him right, Fitzgerald said he opened a second GJ (that he doesn't expect to last for long) to tie up loose ends.

From his tone, I though it sounded like no more indictments were forthcoming, but he certianly didn't say that.
10.28.2005 5:16pm
no one:
"Still, it seems to me that the first step should have been to ascertain whether or not Plame was a covert agent or that her identity was "classifed" or "whatever" might make revealing information about her a crime."

From the indictment:

"At all relevant times from January 1, 2002 through July 2003, Valerie Wilson was employed by the CIA, and her employment status was classified."
10.28.2005 5:17pm
Chico's Bail Bonds (mail):
It looks to me like the indictment has enough facts in it to charge Libby with the underlying crime. I speculate that Fitzgerald ask the grand jury to do so, but they refused. Why would he not indict Libby on the underlying crime if he had the evidence?
10.28.2005 5:23pm
Robert W. Franson (www):
Is it correct that the indictments actually issued arose directly within the context of the investigation itself? Thus if the investigation had not been ordered for some other reason ("CIA leaks"), then there would have been no alleged crimes to indict? I'm sure the legal eagles here can explain why this might not be a sting or entrapment, but isn't that the effect?

There's an old saying: "Ask me no questions and I'll tell you no lies ...."
10.28.2005 5:25pm
rayabacus:
[..](who isn't indicted, but lied publicly about his involvement)[..]

I don't believe that this is true.

Also Fitz said in his news conference that the bulk of his work was done. His quote is over at NRO's The Corner.
10.28.2005 5:30pm
Flerp:
Re Grand Jury Indictments:

Any federal grand jury can issue a federal indictment (within its geographical jurisdiction).

The grand jury Fitz was using was specially set up to hear the investigation into the leaking of Wilson's role with the CIA. This grand jury expired, and thus they cannot issue any more indictments.

However, Fitz can bring new indictments in any federal grand jury. The practical inconvenience is that he has to get any new grand jury up to speed on the investigatipon, so he can prove that there is probable cause that a crime has occured.

Thus, there is nothing stopping Fitz from a) seeking an indictment against a new defendant, or b) seeking additional charges against Libby.
10.28.2005 5:33pm
Justin (mail):
JF, by now it is common knowledge that Libby was (at least one of) Miller's and Cooper's source(s). So, the lie was made in furtherance of "getting away" with what, given what is in the indictment, seems pretty obvious to be a crime (though perhaps one difficult to prove "beyond a reasonable doubt", given the requirement of intent).

Thus, that the lie itself isn't the exact same conduct as the illegal act, it does stem from the illegal act, and it makes sense for a prosecutor to focus on that if he believes it is a safer bet than indicting on the underlying act, even/particularly when he thinks the target is guilty of the underlying act.
10.28.2005 5:33pm
carpundit (www):
Who is Official A? Rove?

For those of you who don't like the "procedural" crimes of 1001 and 1503, there's your substantive crime - telling Novak about Valerie Wilson's employment.
10.28.2005 5:37pm
Justin (mail):
"Is it correct that the indictments actually issued arose directly within the context of the investigation itself? Thus if the investigation had not been ordered for some other reason ("CIA leaks"), then there would have been no alleged crimes to indict?"

No, because it presupposes that everyone is innocent of the underlying crime, rather than that everyone lied too much about the underlying crime to make a guilty verdict enough of a likelihood to make it worth the prosecutor's while to do that rather than going for the whole enchilada.

In other words, your argument assumes that if Libby and Rove were COMPLETELY honest and forthcoming in their grand jury testimony, they would be cleared, whereas it is at least an open question (and probably closer to a sure thing) that at least Libby would have been indicted (and, given no facts in dispute, found guilty) of the underlying crime.
10.28.2005 5:37pm
JF (mail):
Justin: As to Miller, she said in her piece in the Times that Libby wasn't her source. Cooper says he was not a source, but a confirmation. The Cooper case is clearly ambiguous, since Libby at least claims his confirmation was a "non-confirmation confirmation," and reasonable people could differ on that. And again, the stuff on obstruction of justice seems pretty clear, but I still don't understand what records could exist to sustain either perjury charge.
10.28.2005 5:49pm
Anderson (mail) (www):
JF, you're more up on the case than I am, but it seems evident that Judy Miller's credibility is not, shall we say, airtight.
10.28.2005 5:53pm
rayabacus:
Flerp: Re Grand Jury Indictments:

This quote from Fitzgerald's press conference today. Certainly appears to me that this is a done deal for the most part.

"Is the investigation finished? It's not over," Fitzgerald said at a news conference. "But … very rarely do you bring a charge in a case that's going to be tried in which you ever end a grand jury investigation. I can tell you that the substantial bulk of the work of this investigation is concluded."
10.28.2005 5:53pm
Houston Lawyer:
I believe we have Martha Stewart all over again. No underlying crime, but false statements given in the investigation. If he had been a private citizen, he wouldn't have talked. The Bush administration though made it clear to all employees that they must talk to remain employed. If you're going to talk, better get it right the first time.

Please note the lack of conspiracy or obstruction by the Bush administration. They may not like the prosecutor, but they have been very respectful of him and the whole investigation. They have been a good model for how to act while under investigation.
10.28.2005 5:54pm
Anderson (mail) (www):
Houston Lawyer, I am very puzzled indeed.

If he had been a private citizen, he wouldn't have talked. The Bush administration though made it clear to all employees that they must talk to remain employed. If you're going to talk, better get it right the first time.

Unless Bush also ordered Libby to lie like a rug, I fail to see the point.

lack of conspiracy or obstruction by the Bush administration

??? Who do you think Libby worked for, the New York Times?
10.28.2005 5:57pm
Justin (mail):
Justin: As to Miller, she said in her piece in the Times that Libby wasn't her source. Cooper says he was not a source, but a confirmation.

Turns out Miller was lying. Cooper said he wasn't the INITIAL source ("Official A" apparently was), but by being the confirmation, he was A source (remember, there were "two sources").
10.28.2005 6:04pm
Lab:
The alleged crimes all took place during an election year.


Libby et all were buying time.
10.28.2005 6:08pm
JF (mail):
Justin: Then why not indict Judy? Unless she lied in the NYT and told the truth before the GJ, which seems silly.
10.28.2005 6:15pm
Anderson (mail) (www):

Justin: Then why not indict Judy? Unless she lied in the NYT and told the truth before the GJ, which seems silly.

Lying in the Times: a Miller habit.
Lying to a grand jury: felony.

Nothing silly about it, at least if you're Miller.
10.28.2005 6:17pm
keatssycamore (mail) (www):
JF,

Why in the world would that be silly? Most of her NYT reporting has been debunked, she (according to the publisher Pinch) had "her hand on the wheel" the whole time. So why not get the Times to fight your 1st Amendment battle for you with their resources and lawyers. So what?

Lying under oath is of a different order than lying to the Times. People apparently do that all the time (Jayson Blair).
10.28.2005 6:20pm
R Xapt (mail) (www):
Carpundit: Official A was Ari Fleiser.
10.28.2005 6:22pm
Michael B (mail):
After two years a single person, who left a highly lucrative law practice for a position in govt., receives a primary indictment which would not have occurred if the investigation itself had not taken place. Still, Fitzgerald seems to have taken the right course and Libby did the right thing in resigning. A GJ indictment for lieing under oath is no small thing (unless one is the President attempting to deny a history of sexual harrassments, including a probable rape of Juanita Broaddrick, as all that was mere moralistic tripe doncha know).

Meanwhile Ahmadinejad incites an entire society to further hatreds against Jews and Israel while the MSM obfuscates and elides the enormous historical, institutional and societal exploitations of those hatreds throughout the Arab/Muslim world. Too, Darfur is processed by EU and MSM realpolitik aesthetes as little more than a diplomatic/legal problem (it's being addressed in the WCC doncha know) and an occasion for impotent hand-wringing while the EU fails to marshal requisite force. And of course Bush/Blair=Stalin/Hitler to boot while Saddam's legal position is worried over by "human rights" organizations who generally managed, with CNN and others, to de-prioritize much critical scrutiny of the lethal regime of Saddam &Sons.

Priorities, perspectives and pontifications. Puppets and puppeteers. Pathetic - and genuninely and substantively so.

But it's the weekend, so for some hilarious eye-rollers check out some of the comments in this Man-Bites-Dog Volokh thread on a book review by Scalia.
10.28.2005 6:23pm
J..:

Carpundit: Official A was Ari Fleiser.

I don't doubt you, R Xapt, but what makes you say that? Thanks.
10.28.2005 6:33pm
Walter:
So,

When interviewed by the FBI and again in front of the grand jury, Libby explained that he had first heard of Plame through gov't sources. Quotes in the indictment.

But,
He told reporters that he heard it from them. He told the FBI and the GJ that he was surprised when reporters told him that Plame was involved because he had forgotten that he had initially learned from gov't sources. Fitzgerald can easily show that he should not have been surprised, as he had been working on the issue for over a month at the time of the conversations. Fitzgerald's indictment spends a lot of time proving that Libby knew something that he disclosed he knew whenever he was questioned.

That seems like a slam-dunk, except that, as he did not lie about what he knew, where he learned it, or when he knew it, his lie about his state of mind seems, perhaps ... immaterial?

With regard to the substantive mistatements about the content of his conversations with reporters, materiality is not the issue.

However,
(insert mandatory "I have never defended a perjury charge")
Isn't it a bit difficult to prove a he-said/(s)he said case when the accusers refuse to answer questions? For example, Cooper, Russert, and Miller famously refused to answer questions about who else, if anyone, told them anything about the case. That doesn't affect their credibility for probable cause, but it certainly has an impact on Libby's abilty to confront his accuser, and lends some (perhaps) reasonable doubt.

Am I missing something?
10.28.2005 6:33pm
gfbook (mail):
Carpundit - The below is only a crime if it can be proved that Official A knew that Plame was covert. As Begala stated today - he believes that Rove? or Ari Fliesher? thought he was trading in public information to refute an incorrect press story - something he did for Clinton everyday - that's the job.


Who is Official A? Rove?

For those of you who don't like the "procedural" crimes of 1001 and 1503, there's your substantive crime - telling Novak about Valerie Wilson's employment

.
10.28.2005 6:34pm
Walter:
Note that I am not questioning whether the charges are accurate, appropriate, or not. I am just wondering if Fitzgerald might encounter more practical difficulties of proof in this case than in a typical false statements case.
10.28.2005 6:36pm
keatssycamore (mail) (www):
Walter,

I think you need to look at the indictment again. It isn't even close to your rendition of it. It is exactly the opposite. Libby was out telling everyone (including the GJ) that he learned about Plame from Tim Russert. But Fitzgerald construct a timelin with at least six conversations with goverment officials.

Am I wrong and Walter right? If someone can correct me, I'll go back and re-read that PDF...
10.28.2005 6:41pm
Sebastianguy99 (mail):
I wonder if some of the learned commentors would please answer a question that I have? After reading the indictment, and listening to the press conference, I am still left with questions.

What I would like someone to answer is why no one was charged under the 18 U.S.C. 793 (d) (e) (f) (g)?

It seems to me, from reading the indictment, that there was certainly enough known to charge Libby, if not others, under any of these sections. At the very least, it would seem that there was enough to put the matter before a jury?

Am I way off base here?
10.28.2005 6:48pm
Walter:
keatssycamore,

Paragraph 26:
During these interviews, LIBBY stated to FBI Special Agents that:
SubPar a:
LIBBY was surprised by this statement because, while speaking with Russert, LIBBY did not recall that he previously had learned about Wilson's wife's employment from the Vice President.
10.28.2005 6:50pm
Elliot123 (mail):
Does anyone have sufficient familiarity wth IIPA to determine:

1. Was Plame ever covered under the act?

2. If she was covered, when did she cease to be covered?
10.28.2005 6:53pm
keatssycamore (mail) (www):
Well I went back and looked at the PDF and I can't figure out what Walter is trying to say. Maybe I'm just confused, but it looks like Libby used Russert, under oath, as his alibi and the GJ found that this could not be true because of the government sources.

Here's a funny quote (given what we know about Libby and Judy Miller) from page 21 of the indictment, " Reporters write things that aren't true sometimes, or get things that aren't true." Amen to that Scooter!
10.28.2005 6:53pm
Walter:
keatssycamore,

While I have never defended a perjury case, I am a big fan of well-drafted complaints.

It says much for Fitzgerald's skill that intelligent people could read the indictment and listen to his commments and get the impression that Libby blatantly lied about easily confirmable facts. Many commentators are taking that position.

Heck, I like to write my complaints as close to the line as possible. It is, after all, the first impression that anyone will get of your case.

Walter
10.28.2005 6:55pm
keatssycamore (mail) (www):
Sebastian,

I think it's because there is an "intent" requirement attached to the statute that would make the case far more difficult to prove than the perjury charge.

Walter,

I still don't understand what you are saying? Are you saying, Libby told the FBI and the GJ that he knew about Wilson based on his six established govt contacts. Because that isn't what it says. It says the opposite. It says Libby told the FBI and the GJ that he learned about Plame from Russert on the 12th of July. Well after his contacts with government official, and interestingly enough also 4 days after he talked about it with Judy Miller. I don't know if I don't understand, so help is appreciated.
10.28.2005 7:00pm
Justin (mail):
"receives a primary indictment which would not have occurred if the investigation itself had not taken place"

is apparently the new GOP talking point. Of course, parse the statement and you find out this is what everyone is in prison for, including Gotti. A primary indictment for murder would not have taken place if the investigation (itself) for murder had not taken place.

In other words, yes, sure, if there was no investigation, Libby would have gotten away with it. Official A still might :).
10.28.2005 7:04pm
Hemingway:
The problem is that Clinton lied ABOUT SEX and Libby LIED ABOUT HOW HE TOLD TWO REPORTERS THE IDENTITY OF A SECRET CIA AGENT.

Oops, my fault, I missed the sex exception in the federal perjury statute.

I suppose you'll argue that Clinton's sexual escapades were "victimless crimes." (Tell that to Juanita Broaddrick). Well, it's been two years, and I've yet to hear anyone explain who the "victim" was in this leak. And no, the fact that having his lies exposed damaged Joe Wilson doesn't make him a victim.
10.28.2005 7:08pm
Walter:
Keatssycamore,

The complaint charges Libby not with perjury or false statements for saying to the FBI/GJ that he learned of Plame from Russert, but for saying to the FBI/GJ that, when he spoke to Russert, he did not remember that "at the time of his conversation with Russert" he did not remember that he already knew of Plame.

I think I may have answered my own question a bit here, though. Fitzgerald can easily prove that Libby should have, and probably did, remember about Plame at the time he spoke to Russert. It makes it more plausible that Libby would misrepresent other, more important portions of the conversation if he would misrepresent such a minor point.

Walter
10.28.2005 7:13pm
Sebastianguy99 (mail):
keatssycamore,

Sections (a), (b), and (c) requires intent, the sections I asked about do not. The requirement for these sections is that the actor(s) "...willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it..."

Is this not what happened in this situation?
10.28.2005 7:14pm
keatssycamore (mail) (www):
Hemingway,

I think it's clear to most the victim(s) would be if people are allowed to 'out' covert agents and that's the CIA's covert intelligence operations (including everyone who ever worked with Plame while she was using a 'cover' before she came back to Langley, or anyone in the future who is knowingly and intentionally outed) and that's why it needed to be investigated.

Whether or not there were any such 'victims' is not something we know and neither do we know Libby's intention with regard to outing Plame. What is alleged to be known is Libby lied to the FBI and a federal Grand Jury, if we aren't all victims here then I don't know who would be. Fitzgerald made it clear in his press conference that no one is above the law and that for the Justice system to work a person must be truthful when speaking to investigators and truthful when testifying in front of a grand jury. Basically, even if Libby hurts no one in fact by 'outing' an already pretty out Plame (which BTW we don't know for sure as the agency would surely keep it under wraps for fear of exposing other agents or sources) he can't subsequently lie about it.

I can't see why this would be difficult to understand.
10.28.2005 7:20pm
keatssycamore (mail) (www):
Sebastian,

Isn't 'willfully' an intent requirement? Maybe I don't understand but if it were a strict liabilty crime it wouldn't say 'willfully'. At least that what I thought, though my thoughts aren't necessarily the smartest or best ones out there.
10.28.2005 7:24pm
keatssycamore (mail) (www):
Walter,

How is this statement, direct from Libby's GJ testimony, testifying that he "couldn't remember":

Libby: " And then he {Russert} said, you know, did you know that this -- excuse me, did you know that Ambassador Wilson's wife works at the CIA? And I was a little taken aback by that. I remember being taken aback by it. And I said -- he may have said a little more but that was -- he said that. And I said, no, I don't know that. And I said, no, I don't know that intentionally because I didn't want him to take anything I was saying as in any way confirming what he said, because at that point in time I did not recall that I had ever known, and I thought this is something that he was telling me that I was first learning. And so I said, no, I don't know that because I want to be very careful not to confirm it for him, so that he didn't take my statement as confirmation for him."

Doesn't that clearly say he told the GJ that he said he didn't know that? Not that he didn't recall it? Or am I still missing something?
10.28.2005 7:29pm
mls (mail):
Hemingway writes: "I've yet to hear anyone explain who the "victim" was in this leak."

I thought Fitzgerald explained it well at the press conference. He said the victim is the American people. At a time when more human intelligence is needed to keep the country safe, the outing of a CIA operative who has a civilian cover discourages others from wanting to be CIA oepratives.

So even if you don't want to see Valerie Plame as a vicitm of the leak, there's a compelling case that there was much larger harm to the intelligence community.
10.28.2005 7:30pm
Sebastianguy99 (mail):
keatssycamore,

The stutue uses different language.."intent" in the first three sections, and then "willfull" in the sections thereafter. I take this to mean that there are two different standards as well.

I think it is also worth noting that under this statute, the question of whether or not Plame was covert is not a foundation for charging under the Act.

It just seems to me that proving criminal activity under this statute requires a much lower burden than under the IIPA. And if this is the case, why wouldn't a prosecutor described at various times as "bulldogged" and "tough", shrink from putting these facts and actors before a jury and letting them decide?

Something doesn't add up here I'm afraid.
10.28.2005 7:40pm
Public_Defender:
Now that Rove has a possible indictment hanging over his head, might he push the President to pick a Supreme Court nominee more favorable to the rights of the accused?

I can only hope.
10.28.2005 7:47pm
keatssycamore (mail) (www):
OK Walter, I've re-read and re-read again and I think I see where you are coming from. My mistake entirely. I see your point. Especially about proving that "I don't recall' is somehow not true. But that isn't all Fitzgerald has. He has Russert's statements, Cooper's and Miller's. But I am catching on to your point. I'm late in coming around but I finally get it. I think.
10.28.2005 7:49pm
ch:
As a non-lawyer and noting the trend (Martha Stuart) and now Libby, why would anyone in any capacity cooperate with an investigator or grand jury. Given most of us would engage in some instictive butt covering when dealing with authortiy, it seems to me that the best policy when dealing with any investigation in any capacity it to invoke your right against self incrimination. If this becomes wide spread, doesn't the legal system lose?
10.28.2005 8:22pm
cfw (mail):
Hard to believe Fitz plans to close up shop without resolving the Official A puzzle. Maybe he means that the case has entered the negotiations, finalize the "pleadings," try the case phase. I suspect Fitz may want Libby to agree to testify as to agreement (conspiracy) with Chaney and/or Rove so Fitz can charge conspiracy (based on overt acts of Libby). Having 5 counts gives Fitz a good bit to bargain with.

Has anyone calculated the maximum penalty Libby could receive, realistically, if he went to trial and lost? I would guess 5 years for perjury times 2, 3 years obstruction, 2 years times two for false statements. Say 17 years, worst case. Best case, with a deal, he pleads to a false statement or two, and has a shot at preserving a license to practice law. Pardon from Bush does not solve problems with state bar association, does it?

Perhas we should look for Libby receiving "we will take care of you" job offers from big GOP backers, so he does not have to worry about the law license. Plus assuarances about a pardon from Bush.

Fitz must know he has gotten nowhere special if he stops now (in light of pardon power). Maybe he thinks the crimes were not too special, but I doubt it. He seems too competitive to simply close up shop now, judging from his chasing of Ryan.
10.28.2005 8:31pm
Justin (mail):
Hemingway, I was explaining why one was more important, politically. In fact, it is *not* perjury to lie about something immaterial, which is why Clinton actually didn't commit perjury, but that's a completely different story. I also was responding to:

As I predicted, Harry Reid and other Dems who didn't even think Clinton should have had to resign for his perjury and obstruction of justice are now talking about how serious all this is. "Executive Privilege," I guess.

Clinton's (non)perjury was not considered sufficiently related to "treason, high crimes, and misdemeanors" as mentioned in the office because of the relatively minor nature of the offense as well as the lack of political relationship (if you want to argue misdemeanor should count as all misdemeanors, then Bush should have been impeached for having an unlicensed (collector's) gun in Washington, DC, against DC law.

I mean, if you had a job, and you get a traffic violation, you are unlikely to get fired. On the other hand, using your high level security clearance to betray the confidence of our nation's intelligence operations does seem like the kind of thing one can get fired for.
10.28.2005 8:43pm
Cornellian (mail):
As I predicted, Harry Reid and other Dems who didn't even think Clinton should have had to resign for his perjury and obstruction of justice are now talking about how serious all this is. "Executive Privilege," I guess.

And I suppose you're shocked by all those Republican politicians who were outraged at Clinton for his perjury and obstruction charges but who now say those same charges against Libby are mere technical violations and no big deal?
10.28.2005 8:47pm
Anderson (mail) (www):

Hard to believe Fitz plans to close up shop without resolving the Official A puzzle.
I think this is a puzzle to us, not to Fitzgerald, who probably knows who A is.

Reading the indictment closely, it doesn't say that Official A *told* Novak that Plame was CIA:
LIBBY spoke to a senior official in the White House ("Official A") who advised LIBBY of a conversation Official A had earlier that week with columnist Robert Novak in which Wilson's wife was discussed as a CIA employee involved in Wilson's trip. LIBBY was advised by Official A that Novak would be writing a story about Wilson's wife.
Indeed, that passive "was discussed" appears passim, blurring causality. I don't know if that's caginess or poor drafting, hopefully the former. Anyway, Novak could've been the one to tell A about Plame, having learned it elsewhere.
10.28.2005 8:49pm
Walter:
keatssycamore,

IIRC, there may be a Sixth Amendment/Fed Rules of Evidence issue with Fitzgerald attempting to introduce testimony by a party who will testify to only part of the relevant facts. Here, where Cooper would say "he said nothing to me about other reporters talking about Plame" but then presumably refuse to answer the logical defense question "did you discuss this with other reporters prior to talking to Libby?", Libby's confrontation right may be impacted. Any FRE afficiandos?
Of course, then Cooper would face contempt (again?).

Remember the meme (seems that it was only last week...) that Keller, Dowd, et. al. were helping Libby by dinging Ms. "Miss Run Amok" Miller's credibility?

Boiled down to elements in contention, Fitzgerald must show that (1) Miller is right and Libby is lying (her notes are only somewhat helpful here, as her own editors say they are not up to snuff and she makes up conversations and allegations out of whole cloth (Abramson(sp?) and Calame); (2) Cooper is right and Libby is lying (We haven't seen Cooper's notes, but we know that he would go to jail rather than answer questions about people other than Rove or Libby); (3) Russert is right and Libby is lying (Remember, Russert says he only testified to what he told Libby). If Fitzgerald cannot prove at least two of those three, the obstruction of justice count probably falls. The argument is about a few words in a conversation both parties admit two years before the reporters were questioned under oath, and, for all that Fitzgerald argues that there is a common motive, the individual lies are different for each reporter, so proving one doesn't prove the next.
Finally, (4) Libby lied about the emotions he felt while talking to the reporters, because, at the time he talked to the reporters, he remembered something he says now he had forgotten then.

For all of Fitzgerald's advantages as a prosecutor, I don't see the normal 90% success rate being helped here.

Walter
10.28.2005 9:56pm
David Pittelli (mail) (www):
Cornellian: And I suppose you're shocked by all those Republican politicians who were outraged at Clinton for his perjury and obstruction charges but who now say those same charges against Libby are mere technical violations and no big deal?

I think the consensus opinion of Republicans and conservatives -- and at any rate, my opinion -- is that perjury is a big deal, but that equating Fitzgerald/Libby as an "Administration scandal" to Starr/Clinton is inapt because:

1) Libby is not the President of the United States.

2A) Clinton had to testify under oath to defend himself in a civil case (unless he was willing to concede facts in the sex harassment case, in hindsight a better strategy). This is now normal in a sex harassment case. The law requiring such a defendant to testify to other sex in the workplace (to see if people like Monica got job advancement after sex, as she in fact did) may be seen as overly intrusive, but we can hardly recommend (the Senate's) jury nullification for that reason to Bill Clinton, since it was Clinton who signed this requirement into law. At any rate, Clinton's false and misleading testimony was at least as material as Libby's.

2B) In contrast, Libby had to testify because Bush ordered all his employees to cooperate with the prosecutor (presumably as a condition of employment, since he has no other power over them).

The facts, that Bush required such cooperation, that this broad cooperation was instrumental in catching Libby up in his lies (if lies they were), and that the Bush Administration and lackeys did not stonewall or smear the special prosecutor, mean that however illegal or scandalous the acts of Scooter Libby, these are scandals of Scooter Libby, not scandals of Bush himself or of the rest of the Bush Administration.
10.28.2005 10:15pm
Hattio (mail):
ch
Yes, you're right, you should invoke you're right against self-incrimination (at least until you talk to a lawyer). And does this cause the system to lose. Well, yeah, but that's what civil rights are, checks on government power that typically work against government so they can't oppress the population.
10.28.2005 11:00pm
SimonD (www):
Funny, I've not read anyone mentioning why Republicans can hardly denounce this indictment - what was it Bill Clinton was impeached for again...? I'm sure I seem to remember it was perj-something, to a grand-something?
10.28.2005 11:00pm
Remus Talborn (mail):
After reading the indictments, it appears that Libby is obstructing justice, but it also appears that he is doing so by telling the truth, Bronston-style. He truthfully describes how he lied to reporters in order to spread dirt about Wilson without admitting that he intentionally outed a CIA agent in the spreading of that dirt. Frankly, I do not think Libby will be convicted for perjury. He might be disbarred for defrauding a tribunal, much as Clinton was. But that is a matter of legal ethics -- Bronston, not a matter of criminal intent.

In my opinion, if this is a sustainable charge of perjury, then Libby should have been charged with the substantive crime. Because if he is demonstrably lying about how he spread the fact that Plame was working at the CIA and admits that he spread the fact that Plame was working at the CIA, a jury could reasonably infer that he knew she was covert when he outed her, i.e., "You're lying about how you did it to create the illusion that you didn't do it."

I think Fitzgerald indicted Libby with perjury knowing full well that the only way Libby can prove he told the truth to the grand jury is to explain why he deceived the reporters in the spreading the fact that Plame worked for the CIA. That is, he did it to out her cover and get even with Joe Wilson. Hence, the grand jury is remaining open: either Libby takes the lesser charge and escapes being nailed on violating the espionage statute or he confesses to the larger violation and vindicates himself of the perjury charges. It's a Hobson's choice.
10.29.2005 1:07am
Irrational Spidermonkey (mail):
You may also note that Fitzgerald's comments throughout the press conference heavily implied that Plame was both covert and that Libby knew that. It was implicit in his discussion as to why he did not seek an indictment with respect to the leaking itself: he was very careful to note that the main obstacle to such a prosecution was proving the "mental state" aspects of Libby's condition at the time - meaning, by extension, that meeting the "covertness" requirement (and gaining a non-beyond a reasonable doubt but still almost 100% certainty that Libby knew about this) was not a problem.

By the way - the AP reports that Official A is Rove, according to "three sources close to the investigation."
10.29.2005 1:13am
Remus Talborn (mail):
I am uncertain how Fitzgerald could prove that she was covert. She was not undercover in a foreign country within the last 5 years. That is the definition of covert.

I'm not sure how Libby could know that she was covert if she in fact was not covert. However, if Libby intended to out her, believing that she was covert, that would constitute an attempt. I think Libby was trying to avoid having criminal intent attached to his actions so as to avoid a number of plausible charges.
10.29.2005 4:12am
Jesurgislac (mail) (www):
Remus: I am uncertain how Fitzgerald could prove that she was covert. She was not undercover in a foreign country within the last 5 years. That is the definition of covert.

That's how active Valerie Plame would have had to be as a covert CIA operative before someone who outs her could be prosecuted for doing so. It's not the definition of covert.

Fitzgerald took the trouble to establish that Valerie Plame was a covert operative in the indictment, that "Official A" leaked her identity to Novak, and that Libby leaked her identity to Russert et al. Because the legislation about prosecuting someone who does that are written very tightly, it was always possible that the scum who did it would escape indictment on that specific count: but it wouldn't make it any less a scummy thing to do.
10.29.2005 7:05am
Syncopation:
so, Libby is charged with lying to the GJ and the FBI about what he specifically said to Russert, Miller, and Cooper. This is obstuction of justice because if he did not actually say to Russert, Miller, and Cooper that "he had also heard from other reporters that Wilson's wife worked for the CIA" but instead said something like "FYI, Wilson's wife works for the CIA" he somehow "outed" Valerie Plame and therefore he was "lying" about what he said to Russert, Cooper, and Miller because he did not want Fitzgerald to find out that he outed Valerie Plame ---- therefore he obstructed justice.

But, did Libby actually ever say the name Valerie Plame? Is it a felony to mention a spouses place of work if it is the CIA? Did Russert, Cooper, or Miller ever actually say that Libby told them that Wilson's wife "Valerie Plame" worked at the CIA? (in fact, didn't Russert say they never talked about Valerie Plame? But did Russert say they never talked about Wilson's wife?) Did Russert, Cooper, or Miller ever say that Libby told them that "Wilson's wife" worked at the CIA? Didn't Russert, Cooper, and Miller only claim that Libby's deposition did not match their recollection of their conversation? Didn't Cooper only claim that Libby didn't say "yeah, I've heard that too" but instead personally confirmed that Wilson's wife work for the CIA (which does not imply that Libby told Cooper that Wilson's wife worked for the CIA, just that he confirmed this information)?

Also, I am not convinced that Libby ever said to the GJ or the FBI that he didn't recall in his conversation with Russert that Wilson's wife worked for the CIA. Semantically it sounds like Libby decided not to recall at that moment --- as a conscious choice --- that he knew Wilson's wife worked for the CIA for Russert's benefit (so he could point to Wilson as biased without actually being held accountable in the press by Russert). His subsequent conversations with future reporters like Cooper would be accurate if he said he had heard from reporters that Wilson's wife worked for the CIA.

Granted this is all semantic spin, but I'm not sure you can say someone knowingly obstructed justice or committed perjury when you only have the semantic difference of "I've heard" and "I know" as recollected after many years.
10.29.2005 7:56am
Syncopation:
Wasn't David Corn the first reporter to actually "out" Wilson's wife as "Valerie Plame, a covert CIA operative"?

Did Libby ever talk to Corn?

Where did David Corn get his information?

Is this obstruction of justice?
10.29.2005 8:13am
Justin (mail):
But, did Libby actually ever say the name Valerie Plame? Is it a felony to mention a spouses place of work if it is the CIA?

1) doesn't matter
2) yes

The relevant law state the crime is to "identify", one can identify without stating the name by stating characteristics that are publically unique. Valerie Plame's status as Joe Wilson's wife was public knowledge, her status as CIA agent was NOT.
10.29.2005 12:54pm
Justin (mail):
"Granted this is all semantic spin, but I'm not sure you can say someone knowingly obstructed justice or committed perjury when you only have the semantic difference of "I've heard" and "I know" as recollected after many years."

You need to reread the indictment, this is clearly not what it alleges.
10.29.2005 12:55pm
Remus Talborn (mail):
Jesurgislac,

Your link to a dictionary definition is complete rubbish. The term "covert" is a term of art. It has a legal definition that applies in the enforcement of the statute. The ordinary and plain meaning of "covert" that is in the dictionary is irrelevant. The definition of covert for the purposes of this case is as I stated above.
10.29.2005 2:48pm
Anderson (mail) (www):
Remus, you are missing the point that Jes (and I) have made in this thread.

There's ONE sense of "covert" that triggers the IIPA. Very narrowly drawn.

There's ANOTHER, broader sense that is congruent with "classified," which is what the indictment alleges Plame's CIA position was.

The latter may be prosecutable under the Espionage Act or some other statute. Or maybe not. One of the remarkable things this case has displayed is how little clear criminal law there is to indict someone who blows an agent's cover.

But please don't be insulting about whether Plame was "covert" or not before you get clear what sense of the word you, and your interlocutors, mean.
10.29.2005 3:18pm
Remus Talborn (mail):
But please don't be insulting about whether Plame was "covert"

I think it was insulting to link to an obviously irrelevant dictionary definition. Whether Plame was classified or not, she was not covert under the statute. That's it.

As for her being classified, that's irrelevant, too, because Libby wasn't charged with exposing an classified agent, he was charged with perjury, false statements and obstruction of justice, none of which hinge on the status of Valerie Plame at the CIA.

The case has not pointed out "how little" law there is; the fact is there is no law that makes classified information per se illegal unless it is the intentional release of covert status. Covert status, as I said, is a term of art with, as you concede, a narrow definition. Looking to the dictionary is not only unhelpful because it is irrelevant, it is methodologically invalid here, as the dictionary is a collection of generalized usages, not a code of narrow and specific regulatory or legal meanings.

Frankly, it is insulting to my intelligence, and the intelligence of any other interlocutors here, to pretend otherwise by defending the indefensible.
10.29.2005 3:41pm
rayabacus:
Fitzgerald took the trouble to establish that Valerie Plame was a covert operative in the indictment[..]

Jesurgislac,
You are wrong. Fitz never used the word "covert". He was very careful to use the word "classified". There is a world of difference between the two as it pertains to the CIA and its employees. The number of employees, employee roster, budget, etc at the CIA is "classified", some of the operatives at the DO are "covert" and some operatives are NOC (Non Official Cover) are not classified as "covert".

I thought it remarkable that Fitz intentionally used the word "classified".
10.29.2005 3:41pm
Justin (mail):
Whether Plame was classified or not, she was not covert under the statute.

Remus, you don't have enough intelligence for it to be insulted. Being haughty doesn't excuse the fact that you're asserting something you don't know ANYTHING about, because much of the information that would provide us with the answer to the question about whether she was covert was, in itself, classified, and still is.

Too many of your equally idiotic friends have said that this was a BS investigation because no underlying law was broken. Given that we don't have the information available to make that assertion, shouldn't we at least presume that (lifelong Republican) Peter Fitzgerald is minimally not so much a democratic hack that he walked in the first day, noticed that nothing illegal had occurred, and said "lets see if i can manufacture a perjury charge?"
10.29.2005 3:47pm
Remus Talborn (mail):
Me, Quoted Selectively by Emperor Justin: Whether Plame was classified or not, she was not covert under the statute.

Emperor Justin,, Who Went To Exeter: Remus, you don't have enough intelligence for it to be insulted.

Wow. I'm glad we aren't resorting to ad hominems. I fail to see where my text is "haughty" (i.e., at no point do I use prep school adjectives like "haughty"), but, even aside from the fact that comment is irrelevant to my argument, I'll note that my first post on this topic mentions that Fitzgerald appears, to me, to be trapping Libby with a lesser offense because he hasn't the evidence to charge him with the greater one he suspects Libby committed. That said, yes, I think if Fitzgerald had the evidence to charge Libby with outing a covert agent, he would have charged him with that. He did not charge him with that.

The indictement details quite clearly how Libby outed Plame, and that the outing was purposeful. What it doesn't show is whether Libby knew or believed that she was covert as defined by the IIPA. If Libby knew it, it would have to be true; if Libby believed it, then it would be an attempt. It is impossible for Libby to believe she is covert if he had access to the classified information proving she is not. It would be impossible for him to know she was covert if she was not covert.

Here's the thing: one need not have access to classified information to know whether Plame was covert. Covert is defined by the relevant statute. So Libby's access to classified information is irrelevant to my analysis.

Plame has not been abroad undercover in the past 5 years. She has not been in the field. She has been in the States meeting with foreigners and pretending not to work for the CIA. That fact has been in multiple papers more than once. She is not covert. It is impossible to out a non-convertagent under the IIPA. I can state that with absolute certainty.

So I don't see how the fact that she was classified makes a difference. If the classified information says she is not covert, it tends to exonerate Libby from the charge Fitzgerald did not indict him with, and the charge which you and your dictionary-hunting friends seem to think is in the indictment, despite the fact that it isn't there.
10.29.2005 4:10pm
pbswatcher (www):
It took me a bit to figure out why Fitzgerald doesn't want to admit that Plame was not a covert agent. See I'm A Little Slow
10.29.2005 4:27pm
Marcus1:
Are none of the Conspirators even remotely interested in this case? Why virtually no comment? It seems this blog could do a lot to sort these issues out.

Volokh Conspiracy indeed...
10.29.2005 5:36pm
alexandra (mail):
Can someone explain this......

Who told Novak?
If Fitzgerald knows, which he should know as Novak cooperated, why isn't that person charged with outing a "covert" agent?

If it was legal to give her name then why would Libby lie?

Does anyone know if outing her was legal or illegal....Did Fitzgerald ever answer her exact status and if it was illegal to out her?

Is it a possibility that Judith Miller told Novak because she did'nt want to be in trouble with the NY Times yet wanted the truth out there?

If that were so then she would'nt be in trouble for telling Novak....but I'm not sure it fits the timeline.

Yet, everyone was wondering why she would have to go to jail for not revealing a source for a story she never wrote.
Why would'nt she have written a story? Again, the NYT's maybe would'nt publish it so she slipped it to Novak?

Could it be that since Novak said it was Miller that told him..Fitzgerald simply wanted to know if that were true and if so, who told Miller?

I know that Novak credited a Senior Official or something to that effect--can't recall right now the exact wording.but since Miller told NOvak the source, he just skipped the part about it being 2nd hand?

HELP????????
10.30.2005 8:54am
Michael B (mail):
"receives a primary indictment which would not have occurred if the investigation itself had not taken place ..."

"... is apparently the new GOP talking point. Of course, parse the statement and you find out this is what everyone is in prison for, including Gotti." Justin

That a simple fact is dismissed as a talking point is revealing. Firstly, I explicitly noted Libby should have resigned as a result of his indictment, as he did. Secondly, am not a member of the GOP. Finally, the perspective previously offered (internationally, and domestically vis-a-vis Broaddrick) is what is significant. Juanita Broaddrick.

A very simple thought experiment. Imagine. If it had been Libby, or anyone else in the administration who had assaulted and raped Broaddrick at any point in their past no one in the MSM and thus very few among the public at large would be dismissing the offense under the category of it was merely about sex. Nor should they have. Relegate every other scandal to a secondary or lesser status - other than his failure to act more responsibly in the wake of WTC '93, which occurred but one single month into his presidency. But Broaddrick is - and should be - the standout exception precisely because her physical assault and rape should never have been categorically dismissed under the "talking point" heading of it was only sex.

And we haven't even broached the subject of Joseph Wilson's deceptions. But for some warranted perspective, give a responsible answer concerning Broaddrick's physical assault and rape. Virtually the only other option is to continue repeating the MSM's memory hole mantra.

Priorities and perspectives. Puppets and puppeteers.
10.30.2005 9:45pm
Michael B (mail):
PS, there's a long list of other subjects I didn't broach as well, e.g., there's no concerted effort to smear and destroy the reputation of the chief investigator, the Special Prosecutor. That's the first item only on that list.
10.30.2005 9:53pm