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Saturday, March 10, 2007

Did Fitzgerald abuse his prosecutorial discretion?

I'm pretty sure that I'm running out of meaningful things to say about the Libby prosecution and verdict.

Still, in response to some very articulate and thoughtful comments on my previous posts, as well as posts and arguments I've seen elsewhere, I'd like to explain why I haven't spoken out strongly yet, one way or the other, on the "prosecutorial discretion" debate.

In the process of getting to that explanation, I first have to address a number of arguments that others have advanced, but that I find unpersuasive, as tending to establish an abuse of discretion on Fitzgerald's part.

And finally, I'll offer up again what is unquestionably an obvious point, but one that I genuinely do think is getting insufficient consideration among many who are debating this topic from either side of it.

I. The relative importance of the investigation of L'Affair Plame and the prosecution of any crimes even arguably revealed by it

The main thing I've had to say in the past on this general subject is that I think whoever was in Fitzgerald's position — whether he or she was regular career DoJ staff whose normal job responsibilities would have included District of Columbia-based crimes or a "Special Counsel" with a particular mandate like Fitzgerald — would have been completely justified in treating this particular case as one demanding more than usual thoroughness.

Even for the United States government, investigative and prosecutorial resources are still limited, and judgment calls have to be made every day about which rock not to turn over, which follow-up grand jury subpoena not to issue, and when to close up one file and move on to the next one. And there are many factors that prosecutors ought to consider when exercising their judgment on those matters. In every case, those decisions are subjective and subject to second-guessing, especially when 20/20 hindsight is applied.

In this investigation in particular, though, I believe that there were extraordinary and compelling reasons for the prosecution to be particularly thorough and particularly diligent and particularly open-minded. In exercising its judgment, the prosecution should have leaned hard in the direction of not shutting down prematurely. And it should have leaned hard in favor of allowing the full adversary system to play out fully, through and including a jury's verdict, rather than aborting that process through a prosecutorial decision to shut things down.

One thing that the trial has unquestionably revealed to the public is the degree to which L'Affair Plame compelled the attention of the Administration at its very top levels. And neither has there ever been any doubt about the furious obsession over this matter among the Administration's opponents, the mainstream media, the blogosphere, and even non-trivial segments of the rest of the public. Whether it should have or not, whether it was originally a molehill or not, it certainly had become a mountain of an issue by the time that the DoJ had to decide how to respond, for example, to the demands that a Special Counsel be appointed.

At the time, I thought that the decision to appoint a Special Counsel was absolutely proper, and I still think that. I say that as someone who had, and still has, a strong opinion that the now-defunct "independent counsel" statute ought to remain on the scrap-heap of legal history.

Nor, considering everything else I've read about him apart from L'Affair Plame, have I heard any reason to think that Patrick Fitzgerald was an inappropriate or unwise choice to serve as Special Counsel. To the contrary, I've yet to hear any remotely persuasive criticism of him outside the context of L'Affair Plame.

Neither am I at all persuaded by people who argue that the investigative and prosecutorial resources expended in L'Affair Plame were disproportionate or not cost-justified. Again, that's very much a matter of judgment, but given the amount of public furor and interest — and the potential effects on public confidence in the justice system of whatever resulted from the investigation — this matter deserved all the resources expended on it. There have been countless drug or organized crime or white-collar crime investigations and prosecutions that were completely off the national radar screens that nevertheless soaked up far more resources than this; I'm not unhappy with the resources devoted to those, either. But dollar-based objections to the Special Counsel team's efforts are, in my opinion, silly and transparent fronts for objections that are really based on other (including political) motivations.

No one can seriously dispute that if the Special Counsel team had shut down without any indictments, there would have been a substantial political firestorm from opponents of the Administration who were predisposed to find, and deeply suspicious of, the proverbial "whitewash." To the extent possible — and total success on this is never going to be possible — this investigation not only had to do justice but to be seen to do justice. No result would ever have satisfied everyone. In this particular case — which unquestionably touched upon many matters of national security having nothing whatsoever to do with Ms. Plame and her particular status — permitting justice to be seen to have been done was going to be especially difficult. So that's yet another factor that ought to have weighed in favor of the prosecution pressing on and turning over more rocks, rather than shutting down early.

II. The length of the investigation of L'Affair Plame

The length of the investigation and prosecution is misleading when examined in isolation. This investigation and prosecution proceeded at an appropriate pace, given all the circumstances.

There was no way that Fitzgerald could complete his investigation of possible charges against Libby — or that he could rule out charges for perjury or obstruction of justice against all of the other potential targets — without overcoming the privileges that were being asserted by Matt Cooper, Judith Miller, and other members of the press. The NYT continues to insist that the most significant ramifications of this case were on the press. (I actually tend to agree that, in the big picture as measured over many years, the righteous and appropriate slap-down delivered to the NYT might be the most important legacy of the case.)

What the NYT continues to conveniently overlook, though, is the DoJ regulations that effectively duplicate the statutory non-absolute reporters' privilege which many state legislatures have enacted. Those regulations required Fitzgerald to first exhaust other means of acquiring equivalent information from other sources before he could even try to compel the reporters' testimony. Those press folks then injected many, many more months of delay into the investigation. Recall, for example, that by the time of the D.C. Circuit's decision on Cooper and Miller, Fitzgerald was reporting that their grand jury testimony was all he was waiting for before effectively concluding his main investigation and either issuing indictments or not. Press lawyers were kicking and scratching to try to get the Supreme Court to stay the D.C. Circuit's mandate (i.e., freeze its decision) pending a decision on their petition for Supreme Court review. Of course Judy insisted on her star turn as Ms. Contempt of Court before she finally testified to the grand jury.

The rest of the key witnesses also had complicated schedules that needed some accommodation: Libby's two grand jury appearances, for example, were separated by several weeks because until the indictment, he was, after all, handling all the duties of the Chief of Staff to the VPOTUS, and Fitzgerald's investigation didn't and shouldn't come before all of the other responsibilities of that office-holder.

And this was far from the only food on Mr. Fitzgerald's own plate. While personally overseeing and staying thoroughly involved in this investigation — it was Fitzgerald, for example, who examined Libby before the grand jury, not some subordinate to whom he'd delegated that task — Fitzgerald was also dealing with the other responsibilities of the U.S. Attorney for the district that includes the nation's third largest city, including other hugely important investigations relating to national security and the global war on radical Islamic terrorists.

III. The absence of other indictments from L'Affair Plame

Some of those who argue that Fitzgerald must have abused his discretion, or acted out of anti-Republican partisanship (hah!) or a slavish desire to placate the Administration's critics (double-hah!) or the press (triple-hah!), point to the indictments he didn't bring. (Some of these same critics also claim that Fitzgerald was acting out of self-aggrandizing motives, i.e., to get a conviction of somebody, not two paragraphs after faulting him for not indicting anyone other than Libby. The simultaneous making of these arguments, even if done under oath, would probably not be perjury, but even when done only on a blog, it is very silly.)

I also find that to be a very unpersuasive line of argument. The fact that two witnesses' recollection of facts differ, for example, is by no means a sufficient reason to conclude that one of them should have been indicted for perjury, and anyone who makes that argument is either very foolish or very disingenuous. Scooter Libby's prosecution didn't depend just on the difference between his purported recollection and Tim Russert's, for example, but between his purported recollection and the recollections of a large handful of other witnesses, key documents, and Libby's own sworn recollection at other times. In every potential prosecution, the prosecutor must constantly be asking himself, "What does the current state of the investigation, viewed through the lens of all my experience, tell me about the likelihood that I'll be able to prove every element of a crime beyond a reasonable doubt?" That includes essential elements like "materiality" to the underlying subject of the testimony, and it also includes the prosecutor's assessment of absolutely subjective matters like the witnesses' relative credibility.

Is it conceivable that Fitzgerald could possibly have persuaded a grand jury to issue other indictments? Oh, sure — that's actually likely, given the number of proverbial ham sandwiches in the District of Columbia. Is it conceivable that he might have obtained convictions of persons other than Libby for things like perjury or obstruction of justice? Well, from an outsider's perspective, that doesn't seem to be inconceivable either. But is it so likely that we can conclude that Fitzgerald's failure to try was an abuse of prosecutorial discretion?

Look how long the Libby jury deliberated, for example, and how many close observers of the trial insist (in what I will stipulate to be well-informed good faith) that there was insufficient evidence even as to Libby. And most of the other targets being bandied about — Russert, Fleischer, Armitage, Rove, Cheney — all have major and glaring holes, obvious even to public outsiders, in any potential indictment against them. It's one thing to toss out a paragraph in your blog about how so-and-so looks as culpable as Libby or even moreso; it's an entirely different thing to get an indictment and conviction based on proof beyond a reasonable doubt of every element of a criminal offense.

With due respect, I've yet to see a serious effort by anyone in the press, or by any of those bloggers, even to outline the elements of an indictment as to any other possible crime or target that would survive an immediate motion to dismiss. Such an effort would require you to identify the statute, and then come up at least a meaty sketch of the names, dates, and places for the events by which you'd propose to prove every element of the crime defined by that statute. Maybe those arguing "so-and-so should have been indicted" lack the competence to frame an indictment, but I think they also lack the law and the evidence. If you're gonna argue that Fitzgerald would-coulda-shoulda, then put up or shut up on the very first step he'd have had to take. Otherwise you're just blowing smoke.

No, I am not remotely prepared to say that Fitzgerald completely and absolutely blew it, to the point of it having been an abuse of his discretion or any sort of credible evidence of bias against Libby, in refusing to seek indictments against anyone else. And that's even continuing to apply my previous remarks to the effect that he ought to have erred, if at all, in favor of letting possible crimes be tested through the full system.

Let's assume, for purposes of argument, that based on the FBI interviews and fact-gathering that had already been done, Fitzgerald was able to conclude with reasonable confidence within days of becoming Special Counsel that there had been no criminal violation in the leaking of Plame's CIA status, or at least that there was insufficient evidence to make it sufficiently likely that he could obtain a conviction for that. Should he have closed down the investigation then, based solely on that, without doing anything else?

Unquestionably not — not unless he was content to have public confidence in the justice system take a huge hit. Recall, you Libby defenders, just how successful Libby's defense was at suggesting that FBI interviews were likely to be biased, inaccurate, and unreliable (as compared, say, to stenographically or electronically recorded grand jury testimony or, better yet, open trial testimony tested by full cross-examination). Remember that this is a system set up to provide increasingly stringent tests for evidence — and what the policeman says he was told might be the end of the story, but it very, very often is not. Again, for purposes that justice not only be done but be seen to be done, would any Special Counsel be justified in running at least some of the key fact witnesses before a grand jury? That's still a secret proceeding, and one that's comparatively likely (in comparison to an open adversary-system trial) to produce distorted results, but at least it's an indication of some further diligence than just relying on FBI agents' notes.

Does that mean the Special Counsel had to put every witness whom the FBI had interviewed under the brighter (but not brightest) lights of a grand jury appearance? That, again, is a judgment call, and it's one that can only be made based on all of the other cumulative results of the investigation to date — including other interviews, documents that have been gathered, and previous grand jury witnesses. Critics of the verdict have faulted Fitzgerald for not having run Richard Armitage before a grand jury, since he's who indisputably first leaked Plame's CIA employment to Novak. And superficially that's surprising. But did Fitzgerald ever have any reason to think that anyone was ever likely to question what the FBI notes already revealed as to what Armitage had to say? At the time when Fitzgerald could have subpoenaed Armitage, was there any crime still being actively investigated that his testimony was material to? I don't think so — and a pretty good indication of that is that neither Fitzgerald nor the defense saw any reason to call Armitage as a witness at trial.

With particular respect to Libby, Andy McCarthy has pointed out that even as of the day Fitzgerald was appointed, there was already a conflict in Libby's sworn declarations to FBI agents and the documentary evidence in his own hand on unquestionably material topics. We don't know, and will probably never know, what other potential subjects and crimes were still being examined by Fitzgerald as he was continuing the investigation through both grand jury testimony and other efforts. But given the verdict, it's pretty hard to argue that he didn't at least have one potential crime that justified at least further investigation.

Finally, keep in mind that to some degree, Libby's trial was itself necessarily a continuation of Fitzgerald's overall investigation. Witnesses were examined far more extensively in that trial than they had been in their FBI interviews or grand jury testimony, and their examination included that from Libby's defense lawyers, who certainly had every incentive to point fingers elsewhere. It was not at all inconceivable that something unexpected would come out of some Libby trial witnesses' testimony that might have prompted further investigation — by FBI agents and DoJ lawyers, and potentially by a grand jury — as to other potential crimes and defendants. One can hypothesize, for example, that many or most of the witnesses in the Libby trial might have offered new evidence that someone else — Rove? Armitage? almost anyone — had obstructed justice or given false sworn declarations on material subjects. It's a mistake to presume, in other words, that Fitzgerald was some modern-day Inspector Javert obsessed only with Libby. The more fair presumption is that Libby was the only blip still on Fitzgerald's radar screen by the time of Libby's trial, and that Fitzgerald was properly focused on proving what the indictment against Libby alleged rather than using the Libby trial as a fishing expedition to look for more crimes and defendants — but that Fitzgerald nonetheless hadn't turned his radar off yet.

IV. You and I can't know everything one needs to know to make a fully informed judgment on Fitzgerald's exercise of discretion

It is simply astonishing how much information is now out in the public domain about L'Affair Plame and the Libby prosecution. Think back just a few years to the various legal fights during the Clinton years: Even the amount of information that was circulating then — and I remember being astonished at being able to read, for example, the Starr Report for myself, in full text, within hours after it came out, including particulars I'll never quite forget about such things as novel cigar usages — is dwarfed by what's now somewhere on the internet about this investigation and this trial. I spent several hours in the last couple of days reading Libby's grand jury testimony, for example, and looking at his handwritten notes that were part of the exhibits. Anyone with access to the internet anywhere in the world could scrutinize the trial exhibits on a day-by-day basis! And there were mainstream media reporters and bloggers of every persuasion and inclination giving minute-by-minute updates during the trial.

(One fairly sharp — and absolutely positively appropriate! — contrast with the Clinton fights, however, is that there were comparatively few leaks associated with Fitzgerald's investigation, including the grand jury process. That is fairly compelling circumstantial evidence, at least in my book, that this investigation wasn't being driven on a day to day basis by political concerns and the 24-hour and weekly news cycles.)

But still: However much even the most avid public followers of all this may have soaked up or dug up, there can be no serious argument from any quarter that any of them have available to them all the information that Patrick Fitzgerald had available to him.

For one thing, he's had access to classified national security information that you and I haven't seen, never will see, and ought not see. For that matter, so has Libby, and (to some extent) so have his counsel. How did any of that affect any of Fitzgerald's judgment calls? I don't know, and neither do you.

But completely aside from the classified national security information, in every prosecution — in every trial — there is always a vast body of information, some of it trivial but some of it potentially important, that non-participants haven't ever seen.

Every case I've ever tried, for example, has had box-loads of stuff — correspondence, memos, legal research, notes and drafts, and mounds and mounds of document production — that nobody outside the case has ever seen. Any trial lawyer will tell you that if your own trial team can maintain even a reasonably good handle on that universe of information, you're doing a fabulous job. If you and your trial team actually have a command of 90% of that material, you're world-class. But no outsider is likely to have a genuine command of even half of it.

I've had the experience of taking over a whole bunch of cases that other lawyers have prepared, and sometimes that they've even already tried, and then preparing that case for further proceedings, appeals, or retrials. It's amazingly common for my fresh set of eyes to find important things that my predecessors missed. But there have also been occasions when I've completely missed important things that my predecessors knew were awfully important, even when I've had their active cooperation and access to their entire files.

The absence of complete information doesn't mean we can't have a meaningful debate on subjects like whether Fitzgerald properly exercised his discretion. But don't kid yourself into thinking that you can genuinely put yourself into his shoes in second-guessing his decisions.

You just can't, and — really and truly — you can't even get very close, even in the internet age and in a case that's gotten the kind of scrutiny that this one has.

V. Even if we knew everything we needed to know, most of us don't have the prosecutorial perspective to analyze it properly

We're all entitled to our opinions, but I'm less inclined, in general, to second guess judgment calls that must necessarily have been the product of intensive training and experience on the part of (to use Dubya's apt if inelegant phrase) the actual deciders. The reliability and credibility of my second-guessing depends on my having that same training and experience. If you ask me, for example, whether Surgeon Y made a good judgment in deciding to sew Patient Z back up rather than dig around for another three hours looking for more tumor, my pronouncement on that is going to be about as meaningful as a coin-flip or a dart throw.

I'm a seasoned civil trial lawyer with broad and deep experience, and before that I had the privilege of spending a year working as an appellate law clerk within the federal justice system. But I've never belonged to the special fraternity of prosecutors. I've never had the opportunity of standing up and saying "Bill Dyer, your honor, for the United States of America." I've been involved in thousands of lawsuits and many dozens of jury trials, but not one of them has ever required me or my opponent to prove our allegations beyond a reasonable doubt. And although I've had awesome, sometimes crushing, amounts of responsibility for my individual clients, I've never had the exact kind of pressures that all prosecutors have to some degree, and certainly not the kind of pressures that top-level senior prosecutors in an international media fishbowl must handle.

I'm probably in a better position than most non-prosecutors to pretend that I know what a reasonable prosecutor might do in any given set of circumstances. But that's really a conceit on my part. I used to think I was as good at fighting bad guys as Roy Rogers, too.

Before you burst a blood vessel over what Pat Fitzgerald did or didn't do, ask yourself just how much experience you actually have to be drawing confident inferences.

Do I feel confident enough in my own assessments on L'Affair Plame that I'd be comfortable, for example, having President Bush act on the basis of my recommendation as to whether Patrick Fitzgerald ought to be fired as a U.S. Attorney or promoted to the next high-ranking position in the Justice Department? Hell, no; and God save these United States from me being the decider on that sort of issue!

VI. So far, Fitzgerald has indisputably won every significant fight he chose to pick in L'Affair Plame

We all cherish the freedom that lets us debate and persuade and disagree with one another over all these issues relating to L'Affair Plame and Scooter Libby. We're all entitled to have, and voice, opinions that Fitzgerald indicted too few people, or too many; that the jury was too harsh or too timid; that the reporters were heroes or villains; and that Bush/Rove + Cheney/Libby & Co. are either devils or the last bastions of our protection from terrorists who'd love to behead each and every one of this blog's readers. That's all well and good.

But we also live in a society that has defined institutions charged with effectuating the (capital letters alert!) Rule of Law. We justifiably celebrate those institutions when they keep our society from degenerating into military coups d'etat or bloody fighting in the streets. If you believe in those institutions — in things like the basic systemic integrity of the FBI and the DoJ and the grand jury process and the full range of federal trial and appellate courts and the jury system — then you have to pay due attention to the results of their processes.

So it's unbecoming — it's disingenuous — to leave out of the debate over Fitzgerald's exercise of his discretion the indisputable and obvious fact that so far, he's won every single major fight that he and his team chose to pick in the investigation and prosecution of crimes out of L'Affair Plame, including but not limited to the most important one yet, that being on four out of five counts in the Scooter Libby jury trial.

If Fitzgerald was absolutely, positively abusing his discretion, failing in his job responsibilities, incompetent, or otherwise screwing the pooch, you would expect that in at least some of these fights, he'd have had a set-back. You'd expect that Judith Miller would have left jail in a parade with a brass band escorting her home, instead of in a U.S. Marshals van en route to the grand jury proceedings. You'd expect that one or more of the multiple indictment counts would have been bounced in pretrial proceedings, or through directed verdict during the trial. That's happened quite a bit in a great many high-profile federal prosecutions — recently and locally, for example, in the fallout from the Enron collapse, in which the prosecution is struggling to stay above the median batting average for Major League Baseball outfielders. (I think they're still comfortably above the median batting average for National League pitchers.)

As in every trial, the Libby defense team won on a few motions and objections and discretionary rulings from the court; if they hadn't, that would be strong evidence that Fitzgerald and his team were complete wimps who weren't doing their jobs as trial advocates in the public interest. But to the best of my knowledge, on every single major fight against every opponent in the investigation and prosecution of crimes in L'Affair Plame, Patrick Fitzgerald is batting 1.000. And batting 1.000 in a multi-fight legal war just isn't typical even for very good, very conscientious federal prosecutors.

That impresses me, friends and neighbors. And it does so absolutely in proportion to my respect for the system in which Pat Fitzgerald has been operating.

The combat isn't done yet. If, as Fitzgerald's critics insist, the Libby verdict is fatally flawed in some or all of the many ways they now argue, then it ought to be set aside in whole or in part — either by the trial court in response to Libby's motion for new trial, or by the U.S. Court of Appeals for the D.C. Circuit (yes, that same court that made Judy testify and that yesterday struck a massive blow for conservative Second Amendment proponents), or by the U.S. Supreme Court. But if that doesn't happen, there are only three possible conclusions to draw: (1) Fitzgerald did a righteous job; or (2) the entire system broke down in this instance; or (3) the entire system ought to be trashed.

I'll tell you right now that I'm incapable of being persuaded of choice (3). That would rock my world and require me to conclude that my whole career has been a farce, and that's just not going to happen. Go argue that over at Democratic Underground or wherever.

As between (1) and (2), I'll reserve judgment pending Libby's appeals. But personally, I'm leaning pretty hard toward (1) for now.

Posted by Beldar at 06:32 PM in Law (2007) | Permalink


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(1) Patterico made the following comment | Mar 11, 2007 12:45:24 AM | Permalink

Absolutely brilliant post.

(2) Ranger made the following comment | Mar 11, 2007 1:53:17 AM | Permalink

Unfortunately, there is one big issue that leaves a cloud over the office of the special prosecutor. That is the discrepency in treatment between Libby and Armitage.

If Fitz had spent any time investigating Mr. Armitage's statements, he would have discovered that:

1) Though he had confessed to leaking to Novak, he had "forgotten" about leaking to Woodward 3 weeks earlier.

2) That Armitage had activly communicated dirctly with His deputy Marc Grossman before Grossman's first FBI interview.

3) That Armitage had indirectly communicated with Novak before his FBI interview to ensure Novak understood that Armitage's statement about Plame was "inadvertant."

Libby's FBI interviews and Grand Jury testimony was questionable because Libby was claiming to be hearing about Plame from reporters at a time the investigators beleived reporters did not know. Fitz stated this in his indictment press conference clearly. He argued that Libby's actions were deliberate to conceal the fact that Libby was, in fact, the "first leaker." He was not at the end of a chain of phone calls from reporters, but in fact the originator of that chain. The fact that Armitage had already leaked on 13 June makes Libby's story look much more like confusion (about which reporter he heard it from) rather than deliberate misdirection.

Fitzgerald failure to stop the prosecution Libby, after learning that Armitage had mislead him (either accidentelly or on purpose) and that his entire theory about why Libby's statements were deliberate lies was wrong is what some of us have an issue with.

(3) Ranger made the following comment | Mar 11, 2007 3:16:31 AM | Permalink

Also, let's review some of what Fitzgerald knew when he took over the job.

A) Armitage had confessed to leaking to Novak in July.

B) Marc Grossman had told investigators that as early as June 10th or 11th 'people at State were saying that Joe Wilson's wife sent him on the trip.'

C) Armitage was Marc Grossmans boss at State.

A "thorough" leak investigation might then have looked at State as a source of leaks for Plame's name before the Novak leak. If they had, they would have discovered that Armitage had a long meeting with Woodward within a few days of Grossman's timeline of when Plame's role in the Wilson trip was 'discovered' by State.

But instead, Fitzgerald decided to go after Libby and the OVP.

(4) Beldar made the following comment | Mar 11, 2007 3:26:31 AM | Permalink

Ranger, understand that I'm not undertaking to defend Armitage. But if you're suggesting that Armitage committed a crime, you haven't yet said what it is, much less attempted the challenge I set out above for sketching out what an indictment would have looked like.

More generally, however, discrepancy in treatment — even when it can be established, which is almost never, because it presumes that people are identically situated, when they almost never are — doesn't conclusively establish either that Libby shouldn't have been prosecuted or that Armitage should have been.

I appreciate the comment, but I don't get your point. The fault is probably mine.

(5) MayBee made the following comment | Mar 11, 2007 4:06:42 AM | Permalink

Very thoughtful and lofty and a bit theoretical.
I would have loved to have seen you get into the nitty gritty a little- for example, what do you think specifically about the Cooper charges? Is the recollection between the two men different enough and important enough to bring charges (and gain conviction) on? Are those particular discrepancies really the kind of discrepancies we want to have as the basis of conviction?

As for your choices at the end,
(1) Fitzgerald did a righteous job; or (2) the entire system broke down in this instance; or (3) the entire system ought to be trashed.

I vote for (1.5)Even the best system is imperfect, and in this case Fitzgerald was the master at using those imperfections to his advantage.

(6) cthulhu made the following comment | Mar 11, 2007 4:52:36 AM | Permalink

Thank you, Beldar for an excellent post.

The problem is, though, that it doesn't address a significant problem with this verdict -- it stinks.

It may have been winnable. It may (as this post addresses) have been a logical step for the prosecutor. It may be correct within the language of the law, but it stinks nonetheless -- and for the same reason that the Martha Stewart case does. It stinks because the logical conclusion of these two cases is for everyday citizens to lawyer up and not cooperate in any investigation about anything.

In another post on this blog, you tell a "war story" about a tired doctor giving a false deposition. Near the end of this tale, you note: "He just outright lied under oath." But then you continue with, "Well, yeah, but the lie did matter. Testimony under oath matters; lies matter. This particular lie wasn't perjury, but it still turned out to have a dramatic effect on both juries' damages verdict." Why isn't this perjury?

Now, I'm not a lawyer...but it seems to me that the issue has to do with state of mind. Perjury isn't just saying something untrue. It's not just knowingly saying something untrue. It's not just knowingly saying something untrue under oath. It's not just knowingly saying something untrue under oath that is material (your doctor's case). It's knowingly saying something untrue under oath that is material with the knowledge that it might "thwart justice."

The problem with the instant case is that Libby was the probe's subject, for purely political reasons, while he was being told that the subject would be "the original criminal leaker" -- which was a double falsehood in that the leak was not a crime and Armitage was the original leaker.

This lead Libby to figure that it would be OK to ramble on casually for 8 hours to a Grand Jury without his (subpoena'd and held by Fitz) notes, because nothing he could do or say could make him guilty of a crime for the leak, and nothing he could do or say could make him the original leaker.

To my mind, much of the criticism from legally-aware individuals -- who tend to see things in terms of "rules of the game" -- addresses Fitz's attempts to erase the last qualification that makes a lie into perjury: "is the person knowingly trying to thwart justice?" Your tale of the doctor's case highlights the importance of "because he thought the lie just would not matter" in making that distinction.

Further, as a matter of public policy, that distinction HAS to be made. People can be summoned to a grand jury, to give testimony under oath. If they believe that testimony may lead to their conviction, they may exercise their 5th amendment right to say nothing. But what if they cannot come to a reasonable decision as to what may or may not lead to their conviction?

To borrow some reasoning from Kant, what if every grand jury were convened under false pretenses? What if every time someone was summoned to testify regarding last month's murder of X -- when X was seen on television earlier that day -- they were actually being considered a suspect for the embezzlement of Y?

I vaguely recall seeing that there were only 70 perjury cases in the federal judicial system in a given year. With so few, and with such high-profile exemplars, is it totally unreasonable to consider how this might appear to the citizenry?

In my view, if the Libby verdict is sustained as a matter of law, the law is on a self-destructive path. If knowledge of the harmful effects of a statement isn't one of the explicit factors of a perjury conviction, it needs to be. Finally, someone needs to address the issue of immunity in testimony....if someone is being asked about Mr. Smith's murder in LA, they shouldn't be worrying about their testimony creating a vice charge in Duluth -- or, inevitably, nobody will cooperate with any investigations at all.

(7) Ranger made the following comment | Mar 11, 2007 5:22:24 AM | Permalink

Part of the issue with what Armitage might be charged with is we do not know if Fitz actually did any investigation of Armitage or what his actual Grand Jury testimony was. So, there are two possible sets of facts.

Under set one, Fitz actually asked Armitage about other reporters and Armitage denied telling anyone else. Under set two, Fitz never bothered to ask Armitage about any other reporters.

If set one is the case, then you have the following possible charges (which are remarkably similar to Libby BTW):

Lieing to the FBI about disclosing Plame's identity to Woodward.

Perjury before the Grand Jury for 1) initially denying he told Woodward, and 2) Claiming to have forgotten to have told Woodward as an explenation for why he failed to disclose in the first place.

Obstruction of Justice, witness tampering for attempting to influcence the statements of Marc Grossman and Novak before their FBI interviews.

Now, if set two is the case, then perhapse Armitage could skate on lying to the FBI and Grand Jury about not telling Woodward (ie, he was never asked if he talked to other reporters, therefore he couldn't lie about it). But, his claim to have forgotten about Woodward is just as suspect as Libby's claim to have forgotten about talking to anyone about Plame before he talked to Russert.

And, there is no way to make Armitage's asking a friend to call Novak and "make sure he understood that Armitage's statements were inadvertant gossig" as anything but an effort to influence Novaks statement to the FBI.

The better an investigation you think Fitz did, the worse things look for Armitage.

(8) Beldar made the following comment | Mar 11, 2007 5:22:55 AM | Permalink

cthulhu, thank you, too, for a thoughtful comment.

But the first seven pages of testimony from Libby's first grand jury appearance establish very, very dramatically that Libby was fully, methodically, and in fact painstakingly warned that every single word he would say to the grand jury might become a basis for a perjury charge. He was told to assume that everything was material. And he was told in no uncertain terms, repeatedly on (at page 7. lines 7-14) and off the record, that he, Scooter Libby in particular, was under direct prosecutorial scrutiny for possible violations of the law based on what he had already said and done:

[B]ased upon your conduct in this investigation and in particular contact with reporters, you, among others, are a subject of the investigation. And that does not mean that anyone has decided to charge you with any crimes, but just is to advise you of the serious nature of the proceeding.

If that first sentence quoted above did not set off bells and whistles in his mind, then Mr. Libby is far to dense to have ever been a high public official.

The idea that Libby was "casually rambling on" for eight hours is not, I think, a fair characterization of what happened, and Libby certainly had no grounds whatsoever to take any of this casually. And a goodly portion of his grand jury testimony was specifically about documents that he was indeed shown by Fitzgerald, including many of his own handwritten notes (some of which included presumably unrelated confidential matters that even the grand jurors weren't permitted to see on grounds of national security). It is inconceivable to me that even his counsel at that time, his one-time partner Joseph Tate, would not have also spent hours before Libby's testimony drilling him on all of the relevant documents that Libby had ever seen or had access to, certainly including all of his own notes.

Those of us in the general public who had no access to the investigation and grand jury process may have still thought that Fitzgerald was only looking for the "original leaker," but Libby was unequivocally disabused of that notion before giving a single line of his substantive grand jury testimony.

(9) Ranger made the following comment | Mar 11, 2007 7:37:41 AM | Permalink

And to boil my previous post down to a few lines.

Libby confessed to talking to Cooper about Wilson's Wife, but denied remembering talking to Miller about Wilson's wife.

Armitage confessed to leaking Wilson's wife to Novak but denied or forgot he leaked it to Woodward.

Fitz spent a lot of time and effort trying to prove that Libby broke the law by saying he learned it then forgot it. Fitz spent no time what so ever to figure out who else besides Novak Armitage told.

If Fitz had done a proper investigation he would have learned that Armitage was actually who he was accusing Libby of being; the first leaker who was pretending to forget to avoid admitting he was the first leaker.

(10) cthulhu made the following comment | Mar 11, 2007 7:55:13 AM | Permalink

To begin with, thanks very much for responding to my post. I appreciate that you are sharing your experience with this subject matter, as my prima facie impression of this issue seriously troubles me. Ordinarily, I have no difficulty with the concept that adversarial proceedings lead to justice -- just as I can believe that supply and demand in a market can lead to an optimal allocation of resources -- but this line of cases seems to lead to civic anarchy in the same way that "the tragedy of the commons" leads to economic ruin. I also thank you for linking this transcript in your reply -- when I wrote my last comment I had a number of windows open and was having difficulty patching together relevant information.

Like most citizens, I'm continually pressed to sign my rights away. When I take a time slip at a car park, I get a document stating "no bailment is granted." When I sign up for cable TV, I agree to binding arbitration. When I get a software update, I have to click "agree" to a EULA that says I don't own things I've bought and paid for. These are annoying factors in modern life, and we look to the courts and usual judicial practice to save us from the more egregious consequences of these "agreements" where there has never been a meeting of the minds.

Similarly, I would suspect that there might be similarly phrased pro-forma warnings as are found in pages 2:9-7:20 in almost every transcript of any one's grand jury testimony.

Being conditioned from early youth to accept such caveats, I would read these warnings in reference to page 3, lines 5 through 11. This section outlines specific crimes that are supposedly under consideration in this matter. Those four crimes, and a reasonable interpretation of each are: covert - not Plame; defense info - not Libby (NIE?); theft of government property (WTF?); and false statements -- for which, perhaps Wilson should worry.

Accepting these as ground rules, Libby would have been focused only on "illegal transmission of national defense information" -- the only one of these crimes that may have applied to him (at least in his estimation).

Fitz reinforces this impression by starting on security classifications and reporter attribution rules -- 8:22 through 17:4. He throws in a quick jab about Novak's article (17:5 to 18:5[or 18, censored]). Then he's back to the NIE for another bunch of pages -- until roughly 48:12.

By this point, I would have to suspect that Libby could only truly intend to perjure on the subject of leaking the NIE. It's the only one of the four subjects that could possibly apply to him, and all the questioning so far could be seen as going in that direction.

To return to my original thesis, however, Libby seems quite cooperative and forthcoming throughout this document. At the end, even though he is clearly punchy and tired, he remains respectful (note the "sir" at 194:25) and attempts to get as much as possible on the record (page 192 seems quite indicative).

Your anecdote relating to the doctor would seem to be quite appropriate here. Why isn't the doctor guilty of perjury?

(11) Beldar made the following comment | Mar 11, 2007 8:06:56 AM | Permalink

MayBee, thanks for your comment as well, and for the kind words.

I don't disagree with the jury and the many pundits who thought that the counts relating to Cooper were weaker. I'm inclined to read the acquittal on the false statement count on the conversation with Cooper as reflecting the jury's appropriate skepticism about pretty fine-grained details recorded only in FBI notes.

Perhaps in an odd but very real way, the jury's acquittal on the false statement count as to Cooper says good things about them and about the Fitzgerald team.

It suggests that the jury indeed understood the concept of reasonable doubt, and that they were exceedingly diligent in distinguishing between the counts and the evidence supporting each.

It also suggests, more obliquely I concede, that Fitzgerald didn't leave a lot of worthwhile potential crimes uncharged. In other words, in charging, he clearly went up to, and on that one count slightly beyond, what he could in fact persuade a jury of beyond a reasonable doubt. But I don't think it was a frivolous count. I rather doubt that it would have been filed all by its lonesome, but given that there were already going to be four other counts filed, I'm not troubled by its inclusion either. I suppose the aggressiveness implied by charging that one count on which he didn't get a conviction makes me somewhat more confident that he didn't, for example, leave anyone (whether Libby, Rove, Armitage, or anyone else) uncharged on any crime (under either of the substantive secrecy statutes, perjury, obstruction, or anything else) as to which he probably could have gotten a conviction.

(12) Beldar made the following comment | Mar 11, 2007 8:37:04 AM | Permalink

cthulhu, I've left my car in lots and lots of parking garages, and clicked on lots of click-through EULAs, and right now I'm breathing steam for a stuffy head from a vaporizer which has a warning label that reads "Danger! Hot steam!"

I've never testified before a grand jury before, though. I've certainly never been told that I was the subject of a grand jury's investigation. You think that's routine for Scooter Libby?

As to Dr. M___, his was an intentional false statement of fact under oath on a matter that wasn't, in my judgment (nor likely in any prosecutor's), sufficiently material to the purposes for which he'd been placed under oath in order to support a conviction for perjury.

(13) cboldt made the following comment | Mar 11, 2007 8:55:49 AM | Permalink

As to Count Three, I see two radically different possible constructions of it. Most readers come to the same construction the jury did. The jury took the construction that Libby was being charged with a detail difference between his recounting of a conversation, and Cooper's recounting of the same conversation.
The other construction looks a sentence or two before the recitation of what makes Libby's statement materially false, and boils down to Libby telling the investigators that at the time he spoke with Cooper, he (Libby) was not aware that Wilson's wife works at the CIA. In other words, the prosecutor's beef isn't on the detail difference in recounting of the conversation, it's on the essential gist of Libby's statement (what he told investigators - that he didn't recall or know for a fact, at the time of the Cooper call, that Wilson's wife worked at the CIA).
Again, that the jury took the "he said/he said" construction is no surprise, given the awkward phrasing in the jury instructions and the convoluted debate that tends to follow that awkward phrasing. Either way, in an environment of uncertainty, or by viewing the charge as "he said/he said" between Cooper and Libby, the jury was acting responsibly by rendering a not-guilty verdict.
As Denis the juror said, the jury's conclusion hinged on Cooper's reaction to the conversation. Cooper's notes didn't indicate a confirmation from Libby, and Cooper didn't undertake a story, now having two sources, Rove and Libby. That rationals operates without reference to how investigators might be influenced by Libby's recounting of the Cooper conversation.

(14) TCO made the following comment | Mar 11, 2007 9:06:17 AM | Permalink

I've committed a different murder, not the one being investigated. Thus I should be allowed to perjure myself (or alternately would have no rationale to do so, given that I know I'm on the clear for the one they're looking at). BULLS**T.

Libby knew that he had leaked to reporters. Even if he thought that the prosecuter was only going after the Novak leaker, Libby knew that he wanted to hide his own leaking.

[Edited for profanity, per regular blog guidelines. — Beldar.]

(15) Ranger made the following comment | Mar 11, 2007 9:52:04 AM | Permalink

But TCO, Libby wasn't charged with lying about leaking. He was charged with lying about his state of mind in regards to memories about converstations.

Libby was charged with lying about hearing about Wilson's wife from Russert, not with denying that he told Russert about Wilson's wife. Libby was also charged with "toning down" his "confirmation" to Cooper, when even Cooper's notes imply he said pretty close to what he claimed he said.

Now, compare that to Armitage's interaction with the prosecutor.

Armitage mislead the prosecutor specificly about actually leaking rather than not leaking. Armitage told Woodward on 13 June that Wilson's wife worked for the CIA. Armitage failed to tell prosecutors that information for over 2 years. That led prosecutors to think that Libby was the first leaker, when in fact Armitage was.

If you really believe that Libby would have remembered knowing about Plame before the 11th of July, then you have to say that Armitage would have remembered as well. Hense, if Libby lied to protect himself, so did Armitage, and Armitage's lie had much more impact on the investigation than Libby's did.

I would have more sympathy with the 'Fitz was just doing his job' argument if he had ridden Armitage as hard and he rode Libby.

(16) htom made the following comment | Mar 11, 2007 10:19:07 AM | Permalink

I am inclined to think that the damage done to "the rule of law" with the current result (whether or not Libby's pardoned) is more than would have happened if either no charges had been brought at all or all of those who told potentially perjurous stories had been charged (even if none were convicted.)

"The Law" looks like a raving bully, picking on some, ignoring others, complete with the crowd of hanger-ons who excuse it.

(17) made the following comment | Mar 11, 2007 11:29:32 AM | Permalink

Ranger, it's irrelevant if he lied about the specific crime. It's just relevant that he lied about material things and that his complicity in a different (parallel) action motivated him to do so. And (caveat to pre-rebut the trite assertion that I know is coming, it's irrelevant if fear of prosecution OR fear of embarresment motivated him.)..what's relevant is that he lied under oath EVEN though he did not commit the crime that he thought was being investigated. For instance, in my analogy above, if I lie about my alibi, even THOUGH I did not commit the murder I am suspected of, I'm STILL guilty of perjury. You are just NOT supposed to LIE!!!!

(18) Patrick R. Sullivan made the following comment | Mar 11, 2007 12:29:49 PM | Permalink

'One thing that the trial has unquestionably revealed to the public is the degree to which L'Affair Plame compelled the attention of the Administration at its very top levels.'

I have to disagree strongly with that. The evidence clearly shows that Libby and Cheney didn't much care at all about Wilson's wife. They cared about the false stories JOE Wilson was telling in DC to anyone who would listen over a two month period.

No one testified that the identity or employment at the CIA of Valerie made any kind of impression at all on Libby. He clearly forgot the several mentions of 'the wife' that couldn't have amounted to even five minutes combined--some only took a few seconds--over a six or seven week period.

Mentions that were interspersed with all the other far more grave matters Libby was dealing with at the same time. I think Ted Wells did a lousy job of establishing that to the jury. Of course, the judge made rulings that hamstrung that, and Wells is going to so argue on appeal that Libby's V Amendment right not to testify were violated by disallowing a 'memory defense' unless Libby actually took the stand.

But clearly, at the time (June-July 2003) it wasn't L'Affaire Plame to Libby or Cheney; it was 'this lyin' SOB former Clinton official' running around DC.

(19) thirteen28 made the following comment | Mar 11, 2007 12:38:26 PM | Permalink

"In my view, if the Libby verdict is sustained as a matter of law, the law is on a self-destructive path. If knowledge of the harmful effects of a statement isn't one of the explicit factors of a perjury conviction, it needs to be. Finally, someone needs to address the issue of immunity in testimony....if someone is being asked about Mr. Smith's murder in LA, they shouldn't be worrying about their testimony creating a vice charge in Duluth -- or, inevitably, nobody will cooperate with any investigations at all."

cthulhu, you're post was excellent in general, but that last paragraph was brilliant and perfectly illustrates the irony of this case. Those that are rushing to the prosecution's defense in this case seem all too blind to the potential affects for future prosecutions, and thus make attaining justice even more difficult.

At this point, I'd take the 5th if a prosecutor asked me what I ate for breakfast.

(20) thirteen28 made the following comment | Mar 11, 2007 12:45:34 PM | Permalink

"2) Claiming to have forgotten to have told Woodward as an explenation for why he failed to disclose in the first place."

Ranger - that might be a tough one for Armitage to sustain considering that Woodward stated that he asked Armitage for a confidentiality waiver on more than one occasion during the investigation.

(21) Beldar made the following comment | Mar 11, 2007 12:52:32 PM | Permalink

Mr. Sullivan, I hope you know already that your comments here are always welcome, and that I value you as a long-time reader and frequent astute commenter. You may be right here. But I think we disagree, just as a matter of good-faith opinions.

You are absolutely correct that there is far more evidence of the top administration officials being concerned about Wilson than Plame.

I'm unpersuaded that there was a concerted effort to "smear" Wilson, although he was and is a bozo whose credibility has always deserved challenging.

I'm even less persuaded that there was an intention to punish or intimidate him by threatening his wife's safety, or that of any agents she may (hypothetically) have run.

But there are handwritten notes referring to her in Dick Cheney's handwriting. There is testimony from Libby's own mouth that Vice President Cheney thought it was "curious" that Wilson had a wife at the CIA.

I credit the Veep, Libby, Armitage, Fleischer, Addington et al. with enough intellectual curiosity and powers of observation to have picked up on, and remembered, this sort of stuff. I'm not suggesting that they were obsessed with it. But the fact that Plame made it onto so many of the top executive personnel's respective radar screens is not insigificant.

How many people make it onto so many of those top-level radar screens? How many people, even incidentally, but across the board, in connection with a matter (Wilson and his report and his press statements) that indeed was by all accounts (including Libby's) a subject of considerable and long-lasting concern?

I would have very much like to heard from Libby's own mouth, from the jury trial witness stand, his explanation for how this seemingly (to me, anyway) important detail (re Wilson's wife's CIA employment) dropped out of his memory after "the boss" -- whose every pronouncement he faithfully transcribed, whether he understood the significance or not -- brought her to his specific attention. Even without his testimony at trial, I can see how the jury could have concluded that Libby's lawyers' characterization of Libby's memory flush was genuine, and that they could have found all the competing witness' testimony less credible than their projections of what Libby's testimony would have been. (Obviously, the jury rejected that characterization, but I can see how other observers might accept it.)

What I can't buy, though, is that there wasn't even an issue here worth the prosecution's attention. I can't buy that there was no basis for the prosecution to test the question of Libby's memory on the specific subject of Wilson's wife. I can't buy that a prosecutor, aware of the political furor preceding his appointment and the certain furor if he'd given everyone concerned a clean bill of no-indictable-crime health, ought to have ignored the contrary evidence.

Not only Wilson, but Plame, caught enough of the top-level adminstration's attention that, in the interest of preserving and promoting the public's confidence in the justice system, Fitzgerald or any prosecutor would have had to let the system deliver its verdict on Libby's statements to the FBI and to the grand jury.

Again, I concede that this is a matter on which reasonable minds (which I emphatically credit yours as being!) can differ.

(22) Fred Beloit made the following comment | Mar 11, 2007 1:15:12 PM | Permalink

In any criminal investigation the first step should be determining whether a crime has been committed. In this case the answer would have been no. At that point Fitz should have held a press conference and closed the investigation. There oughtta be a law.

(23) Patrick R. Sullivan made the following comment | Mar 11, 2007 1:33:30 PM | Permalink

'I credit the Veep, Libby, Armitage, Fleischer, Addington et al. with enough intellectual curiosity and powers of observation to have picked up on, and remembered, this sort of stuff. I'm not suggesting that they were obsessed with it. But the fact that Plame made it onto so many of the top executive personnel's respective radar screens is not insigificant.'

I suggest it is only in hindsight that you can conclude that. No one testified to any reaction that made it seem Libby thought much of the wifely role. Cathie Martin didn't remember any reaction at all when she told him what Harlow told her. Schmall and Grenier didn't even remember talking about her. Grossman remembered, but he's a personal friend of Wilson from UC Santa Barbara days, and probably knew Val.

Six 70 hour work weeks amount to over 25,000 minutes. In which, as I said above, less than five minutes concerned the wife.

And, Bob Novak's column didn't create any stir at all when it was filed, nor when it was published. Wilson had been on Meet the Press on July 6th, and no one reported what was in Novak's column which sat in newsrooms all over America from Friday afternoon through the week-end, where Tim Russert could have read it (he works Saturday and Sunday). Nor did NBC report on it on July 14th when it appeared in papers. The first report I can find on NBC was July 22 on the Today Show--though Andrea Mitchell is claiming to have done something on July 21st with it.

It wasn't until David Corn and Joe Wilson started pumping the story up with their PR blitz that anyone thought it important. Novak didn't even think it was much.

(24) ajacksonian made the following comment | Mar 11, 2007 4:18:55 PM | Permalink

A superb post and I have very little to quibble with, although I do find one passage to be most disquieting:

No one can seriously dispute that if the Special Counsel team had shut down without any indictments, there would have been a substantial political firestorm from opponents of the Administration who were predisposed to find, and deeply suspicious of, the proverbial "whitewash." To the extent possible — and total success on this is never going to be possible — this investigation not only had to do justice but to be seen to do justice. No result would ever have satisfied everyone.

That is correct: not everyone could be satisfied in such a partisan food fight.

Just look at the results and we now see that the one action that could be taken, that of shutting down the main investigation once it was known that no laws at that level were broken, was not. Here the interview with Armitage and calling up the CIA should have cleared that up in no time at all. Then the investigation into any problems seen in the testimony given for that case could be done as it is ensuring the statutory power of the Special Counsel is not interfered with. That would be much more pleasing to witness as a Citizen than the entire food fight that did go on for months over that very topic. That would allow the political part of it to move away from the lesser problems of those who think they can get away with lying to an officer of the Justice System.

Continuing on with a case that has no basis, which would have been known early by Mr. Fitzgerald, could have ended much speculation that went on far after the Libby indictment. If any new facts arose when looking into the actual testimony and procedures to ensure that none were holding back of lying, then that part of the case could have easily been re-opened if it had bearing on the substance previously seen. In this case that early part of the case was nailed shut by Armitage and Novak and, by it turns out, Joe Wilson himself.

Any Special Counsel who cannot brave the political firestorm of finding out that no crimes were done on the primary part of the case and say so and end that part of it there, is not one that should be in charge of that case. Being unable to actually stop a case that has no bearing is within the full purview of the Special Counsel: that is what they are hired for, come hell or high water. The Special Counsel is not hired to gain political success for one side or the other, but to do Justice by ensuring the Laws of the Land are carried out even if that means that nothing could be prosecuted. The drive to get any prosecution then sets up a system where any infraction of anything seen during the entire investigation is ripe for attack. That is a matter for that Counsel to decide as an individual, but putting forth that *something* must come from it that then allows politics to drive the case and not the case to be decided by the evidence found.

That is no longer the Rule of Law.

Justice may be served, but it is often not well done. And that is what you get if you let politics drive the case. That is an extremely worrying passage for its putting forth that politics should drive Justice, not the facts of the case. Very worrying to me since it strikes at the heart of equality of Justice for all, under the law.

There is one part entire affair that still bothers me in all of this, coming from the contracts and National Security angle.

Joseph Wilson was sent to Niger to see if Saddam had any interest in purchasing uranium ore or other nuclear materials from there. He did.

Mr. Wilson sent under Federal auspices to investigate also comes into the contract law for all of those things that become that of the Federal Government, which in his case is the report he gave on his trip. That information was Classified and labeled as such, we know this by its needing a de-classification authority to allow the release of it. There are two things that trip up Mr. Wilson that have NOT been addressed:

1) To actually release information from his trip report to the public, he would need an OK from the authorizing Agency (which I believe was the CIA) and they would also require him to send him the manuscript he was about to send for publication so that they could do any editing of things that endangered National Security. Not doing so is unauthorized leaking of classified material or even sensitive but unclassified material (yes there is such a thing with its own handling). Without getting any go-ahead from the CIA, Mr. Wilson, by delivering any summary of his trip which was duly classified by the classification authority of the government, is liable for the criminal penalties due to such. That should be an extremely easy case to make, with properly marked up and signed-off documents by the CIA, which would be the NYT Editorial manuscript. Without that and with no record of such release being given, Mr. Wilson is breaking the law. This would be on the delivered documents under contract, non-disclosure of classified information and regular release of information the government holds that is not normally publicly available. Each of those carries fines and/or jail time if found guilty.

Even if he had taken the trip under his own auspices, by delivering a report it becomes the property of the Government. And if it is classified in any way, you are put under the same restrictions as those doing the regular classified work for the government.

2) As Mr. Wilson has given one accounting of his trip to the Federal Government and another to the NYT and elsewhere, just which of them is right? He has a hard time reconciling his CIA trip report with his editorial and they contain diametrically opposed findings. At that point the veracity of Mr. Wilson comes into question, and lying to the Federal Government about a trip done with Federal Funds and the trip report then classified with all the overhead of non-disclosure that come with it, is something that should be investigated. Lying to Special Counsel is one thing. Lying to the Federal Government about matters involving Foreign Policy and warfare is quite another. The crime of such lies is something quite a bit higher than the regular criminal proceedings and becomes a Constitutional matter for it is the Republic that Mr. Wilson would be deceiving with such a report, not just an Administration.

I still see no Justice done on either of these after Mr. Fitzgerald.

It hasn't even been defrosted yet, as far as I can see, far from being cooked to any degree. That first part on unauthorized disclosure should be extremely cut and dried: either a copy of the signed release from Mr. Wilson or the signed duplicate at the CIA would do it. Usually there is a Memo For the Record also done, and signed and dated which could point to that. Without that, there is very little recourse as this was not a 'whistleblower' because Mr. Wilson did not go to Congress but the NYT. And finding out which truth Mr. Wilson is willing to stand behind would be a very interesting lesson in Justice. Did he tell the truth to the Government? Or did he lie? The first would put him on the political 'outs' with his supporters, as he would then be saying he did not tell them the truth. And if he lied, he would get much from his supporters, but the Constitution is quite clear what is done in such cases of those who set out to deceive We the People for their own gains at the expense of the Nation.

Perhaps, someday, Justice will be served here.

(25) MayBee made the following comment | Mar 11, 2007 5:01:36 PM | Permalink

I rather doubt that it would have been filed all by its lonesome, but given that there were already going to be four other counts filed, I'm not troubled by its inclusion either. I suppose the aggressiveness implied by charging that one count on which he didn't get a conviction makes me somewhat more confident that he didn't,

Thank you very much, Beldar. The jury did acquit on count three. They were obviously having trouble finding the statements that Fitzgerald referred to in the charge.
But he was found guilty of count 5, based on the virtually identical words, with the same small differences (albeit in front of the Grand Jury).
Count 1 was also based partially on Cooper.
So I'm not sure I agree that Fitzgerald had 4 other counts.

(26) Beldar made the following comment | Mar 12, 2007 2:03:32 AM | Permalink

Mr. Sullivan: Your latest comment is well argued and persuasive. I'm not quite persuaded, though. Taking the number of "on-duty" minutes, for example, is certainly not a useful metric, because it assumes every minute was as important as another. Surely that's not right; surely, for example, the minutes Libby spent listening to and taking instruction from the Vice President (including taking and revising his notes from those precious minutes) were vastly, dramatically more important to him, and likely to be memorable, than, say, minutes spent chatting about the Miami Dolphins over lunch with Ari Fleischer. I'll stick by my "radar screen" comment. But you do have a gift for persuasion that I acknowledge and admire.

(27) Beldar made the following comment | Mar 12, 2007 2:34:56 AM | Permalink

Mr. Beloit, your comment is, I'm afraid, unrealistic. It's simply not possible to "determine if a crime has been committed" as the "first thing" in "every investigation" and then, if not, "shut it down."

Let me use a comparison (somewhat expanded) that Fitzgerald used in his indictment press conference.

Someone calls the police. He says, "I own a bank. Someone broke into my bank and robbed us of $1 million dollars. We believe it was the street gang members who hang around outside." The police go to investigate. Sure enough, $1 million is missing when they check the vault where the cash is supposed to be kept. They look at the surveillance videotapes. They determine that there was no break-in. They talk to the street-gang members; they all have air-tight alibis. So the crime reported to them, the reported and suspected crime that caused them to investigate — a break-in and bank robbery — didn't happen. Your rule would prescribe that they therefore end any activity that could lead to further investigation, prosecution, or conviction.

However, on their way out the door to report back to headquarters, a bank teller falls to his knees and says, "I can't take it anymore, I confess! I embezzled the $1 million when I had access to the vault for other purposes!"

Are the cops not supposed to arrest the teller? Is he not supposed to be prosecuted?

That's an extremely oversimplified example. But in real life, investigations of complex crimes may and often do require you to gather hundreds or thousands of documents and to interview dozens of potential witnesses before anyone can decide that "no crime was committed."

And deciding that "no crime was committed" is only one of many possible reasons for an indictment not being brought. No crime has been indicted and proved, that much we can say with assurance. We do not know, however, that either Fitzgerald or the grand jury concluded that "no crime was committed" with respect to the disclosure of Plame's employment at the CIA. It could be, for example, that they were convinced that a crime was committed, but that there was an insufficient basis to predict that it could be proved beyond a reasonable doubt. It could be that they determined that the statute under which a crime could have been charged was ambiguous or unconstitutional. We outsiders just don't know, and we never will know, when, or why, or even if they made the determination that your "rule" presumes.

Your impulse is a sensible one. But it just doesn't take into account the complexities of the real world.

(28) Ranger made the following comment | Mar 12, 2007 2:35:15 AM | Permalink

I really fail to see how having a prosecutor lying repeatedly in public and in court filings in any supports the notion that justice is being done.

For example, Fitz has repeatedly misrepresented Judy Miller's reasons for refusing to testify. She has clearly stated that there were two reasons she refused, 1) she was not convinced Libby's waiver was voluntary and 2) because the prosecutor refused to limit the questions to only the topic of her conversations with Libby. In fact, Miller has made it clear that she had other sources and may have known about Wilson's wife before ever talking to Libby. Yet, in court filings Fitz continued to claim that the only reason that Miller went to jail was because Libby refused to grant her a personal waiver. That is not just shading the truth, that is an outright lie.

Also, Fitz was clearly wrong when he stated in his press conference that Libby was the first leaker. Now, you might say that since Armitage had mislead Fitz, it was ok for him to say that, but Miller's Grand Jury testemony indicated that she did know about Wilson's wife from other sources before she talked to Libby, and therefore, he logically could not have been the "first leaker."

I have no problem with a prosecutor doing their job. I just want them to do it honestly and impartially. I don't want them using the justice system to punish people for previous interactions (such as Libby's service as Mark Rich's defense counsel in the 90s) and I don't expect them to protect the 'guilty' (Fitz fought tooth and nail to keep Armitage's identity as the first leaker from coming out after Woodward force Armitage to come forward).

(29) Beldar made the following comment | Mar 12, 2007 2:48:44 AM | Permalink

Ranger, with respect, you've got some facts confused, and I just don't have the time and energy to look into others.

I did follow closely, and blog extensively, about Judith Miller's legal fight, for example. I know from reading her lawyers' court filings and the Fitzgerald team's responses and the court decisions based on them that Miller's lawyers contended that no waiver given by her source could possibly be valid, regardless of anything the source said or did, if the source was threatened with losing his job. They also contended that the press — not the courts, and not the source himself (or his lawyers) — were the sole authorities who could determine the voluntariness of any waiver by any source, ever. But most arrogantly of all, they claimed that there was an absolute, unconditional privilege that permitted Ms. Miller to refuse to testify, and that it was her right (as a member of the press) and not her source's right, to claim. I'm afraid you're badly confused about this subject.

You're entitled to form and maintain your opinions about Mr. Fitzgerald. But for example, your suggestion that Libby was being persecuted for representing Marc Rich is ... far outside the mainstream.

I don't generally bar folks from posting civil opinions here that I disagree with, and you have been civil. I think it's unlikely that I'll continue to respond to your posts, though, sir, and you may wish to consider that in deciding whether it's worth your time and effort to continue commenting here. In any event, I do wish you luck and thank you for visiting my blog.

(30) cboldt made the following comment | Mar 12, 2007 8:00:27 AM | Permalink

The "Miller held out for a narrowing of the subpoena" point is a canard. She may have been using that line of hold-out to save personal face. The chances of Fitzgerald bringing up the Holy Land leak investigation case, in front of a grand jury investigating the Plame leak (shorthand, full of pitfalls, but that's the shorthand I'm going to use here) is approximately zero.
As to Miller's other sources (for whatever, but ostensibly for hearing that Mrs. Wilson worked at the CIA), the subpoena she was fighting has specific language in it. The subpoena, on its face, only asked her to disclose information relating to conversations she had with Libby. The agreement that Miller got was to confine questioning to the material recited in the subpoena.

(31) cboldt made the following comment | Mar 12, 2007 8:04:25 AM | Permalink

Beldar - with regard to reporter's privilege, I did some light research into it and found that indeed, it is the reporter's privilege, and not the source's. That seems counterintuitive at first brush, but there are reasons for the theory to be constructed that way. There is nothing to keep the source from going public on his or her own, independently from the reporters, and in asserting privilege, reporters are protecting something other than (or better, in addition to) the substance of the conversations they have with sources.

(32) Ranger made the following comment | Mar 12, 2007 9:00:43 AM | Permalink


"The "Miller held out for a narrowing of the subpoena" point is a canard." Only works if you phrase it the way that you did:

"The chances of Fitzgerald bringing up the Holy Land leak investigation case, in front of a grand jury investigating the Plame leak (shorthand, full of pitfalls, but that's the shorthand I'm going to use here) is approximately zero."

That it true. But, by limiting the questioning to only the subject of Libby's conversations, and not other potential sources of information about Wilson's wife, she did protect other sources of that information that was relavent to the Plame Grand Jury. And she clearly did hold out specificly for assurances she would not have to answer questions about other sources specificly about Plame.

(33) Ranger made the following comment | Mar 12, 2007 9:10:03 AM | Permalink

Oh, and that 16 November filing also includes this little bit where Fitz perpetuates his deception about when Tim Russert began co-operating with the prosecution.

“Russert testified on August 7, 2004, after defendant called and asked Russert to speak with his lawyer, and after the government provided Russert with defendant’s waiver.”

Now, that statement isn’t technically untrue, but it was specifically used by Fitz to support his argument that the state had to provide a high set of hurdles for any reporter to co-operate with the investigation. In fact, Russert had begun co-operating with the FBI from the very first time he was called in the fall of 2003.

In fact the whole reason Ftiz wanted to use the court wrangling with reporters over testifying to was try and show the jury that despite the fact that Libby had signed a blanket waiver at the beginning of the investigation, he believed he could lie to the FBI and the Grand Jury about conversations with reporters because the reporters would not testify against him on principle of source privilege. The fact that Russert talked to the FBI immediately was suppressed form the public, the Grand Jury, and Libby’s defense counsel until just days before Russert testified at the trial.

Which brings up one of the biggest issues I have with the whole “he was just doing his job” defense. The FBI knew that Russert did not agree with Libby’s statement before their second interview with him. But they never confronted him with that information or even suggested that they had talked to Russert. Fitz, when he took over the case could have stated out by confronting Libby with Russert’s statements and demanding an explanation. He never did. He held the Russert information close to the vest, and even participated and a “mock” NBC challenge to his demand for Russert’s testimony, all for the purpose of ensuring that Libby could not correct the record before he was indicted.

Russert’s “reluctance” to testify was critical for Fitz’s case before the Grand Jury just as Fitz’s story that Libby lied because he was the “first leaker.” If Russert’s co-operation had become known then Libby’s statement that he believed that his blanket waiver would result in press co-operation with the investigation would have been shown accurate, and Fitz’s claim that Libby could not have truly believed that reporters would talk would have been proven false.

Ultimately then, Fitz convinced the Grand Jury to indict based on false means (Libby knew reporters wouldn’t talk, therefore he believed he could lie about his conversations with reporters even after signing a blanket waiver), and false motive (Libby lied to conceal the fact that he was the “first leaker” and it was impossible for journalists to be telling him Wilson’s wife worked at the CIA because he was the first one to tell a reporter). In fact, Libby was correct. At least some reporters would co-operate willingly, and Fitz was wrong, Libby was not the “first leaker” and reporters were talking about Wilson’s wife before Libby ever mentioned it to a reporter.

(34) cboldt made the following comment | Mar 12, 2007 1:01:20 PM | Permalink

-- "The "Miller held out for a narrowing of the subpoena" point is a canard." Only works if you phrase it the way that you did: --
It works as long as the subpoena isn't narrowed. The subpoena sought testimony and evidence relating to Millers conversations with Libby, and only those conversations with Libby where the subjects were the Wilson trip, who sent Wilson, and Wilson's wife employment.
The only promise Fitzgerald made was to stay within the confines of the subpoena. He didn't agree to narrow the subpoena.
How many times do I have to type this stuff? (Rhetorical question - I have complete control over responding, or not ;-))

(35) Ranger made the following comment | Mar 12, 2007 2:00:31 PM | Permalink


Then maybe you can explain this statement from Ms. Miller:

"Last month, Mr. Fitzgerald agreed to limit his questioning.

Without both agreements, I would not have testified and would still be in jail."

I guess she is just lying to save face?

Or maybe it means what it says.

You can type it over and over again, it doesn't chance Miller's public statements, which were available to Fitz at the time he made his filing to the court. He clearly misrepresented her public position that she wanted assurnaces from both parties, not just a personal waiver from Libby.

(36) cboldt made the following comment | Mar 12, 2007 3:22:59 PM | Permalink

-- I guess she is just lying to save face? --
That's the way I see it. Lots of people fell for it too, taking away that Fitzgerald had to abandon plans to question her about Holy Land, or other Plame/Wilson sources, etc., in order to get her testimony about Libby.

(37) Ranger made the following comment | Mar 12, 2007 5:25:41 PM | Permalink

Well, she also said the same thing under oath in the trial. In response to one of the Juror's questions she said that even if she had gotten Libby's personal waiver on the first day, she would have stayed in jail until she got Fitz's promis not to ask any questions beyond the topic of her discussions with Libby.

I guess you're saying she committed perjury and Fitz allowed it (if it weren't true, he had a duty to notify the court that her answer was false).

(38) cboldt made the following comment | Mar 12, 2007 6:36:06 PM | Permalink

Miller can mischaracterize the subpoena all day long, and it's not perjury. It doesn't matter if she is mischaracterizing it on purpose, or if she is mischaracterizing it out of stupidity. It's all prelude to her substantive testimony.
"I still needed agreement that it would be this one source on this subject. As soon as I got both, I went to testify."
I don't doubt that she's accurately presenting her state of mind, any more than I doubt that you are accurately presenting yours. But her state of mind does not mean that Fitzgerald narrowed the scope of the questioning from what is recited on the subpoena that she was fighting.

(39) Ranger made the following comment | Mar 13, 2007 2:25:59 AM | Permalink

"I don't doubt that she's accurately presenting her state of mind..."

Then Fitz obviously was being deceptive when he told the court that the only reason Miller was in jail was because of Libby's actions or failure to act, not his own.

My point was that Fitz was deceptive to the point of lying when he told the court in his 16 November filing that the only reason Miller was in jail was Libby's failure to provide a personal waiver. In fact, Miller had publicly stated that it was one of two reasons she went to jail and remained in jail. If there was no issue, then why didn't Fitz provide the kind of assurances to her from the beginning that she demanded?

Also, as I stated before, in the same filing Fitz also mislead the court regarding Russert's co-operation with the investigation. He implied that even the co-operative witnesses required that significant hurdles be passed before providing information. In fact, Russert began co-operating with the investigation before Libby even provided a waiver to the FBI.

If Russert's co-operation were stated as it was, rather than as it was presented by Fitz, then Libby's statement that he fully expeceted reporters to co-operate with the investigation would have been proven true, and Fitz's logic as to why Libby believed he could "lie" and get away with it completely falls appart.

In fact the whole point of the 16 November filing was Fitz's argument that he should be allowed to make exactly that (false) point to the jury. Fitz knew that Russert had co-operated from the begning, yet he wanted to argue to the jury that Libby's statement that he though reporters would co-operate was false, and not borne out by the facts of the case.

(40) cboldt made the following comment | Mar 13, 2007 8:19:26 AM | Permalink

-- My point was that Fitz was deceptive to the point of lying when he told the court in his 16 November filing that the only reason Miller was in jail was Libby's failure to provide a personal waiver. --
Yeah, I read that above. Fitz should have said the reason Miller is in jail twofold, she doesn't have Libby's personal waiver, and she is misrepresenting the subpoena as requiring her to discuss sources other than Libby.
I appreciate that you've honestly expressed your point of view.

(41) Ranger made the following comment | Mar 13, 2007 10:04:05 AM | Permalink


Fitz wasn't describing "the facts" he was describing her state of mind. He misrepresented that to the court. He also misrepresented Russert's cooperation with the investigation to the court.

The purpose of the filing was arguing that he (Fitz) had the right to produce evidence of reporter's resistence to testify to the jury to 'prove' that Libby's statement the he exspected journalist to cooperate with the investigation was 'false.'

In fact, Tim Russert's cooperation with the FBI from the very begining of the investigation demonostrats that Libby's expectation that reporters would coopereate was well founded. Fitz knew that going into the trial, he knew it going into the Grand Jury, yet he concealed it for as long as possible.

Fitz went so far as to let the NBC counsel file a false pleading so that Russert's co-operation with the investigation would remain secret.

Do you think it is ethical for a prosecutor to argue that the defendant can not be believed when he says he expected reporters to co-operate, when the prosecutor knows for a fact that at least one reporter was doing exactly what Libby claims he expected them to do?

Do you think it is ethical to conceal from the trial judge the fact that a reporter was co-operating by describing that reporter's co-operation incompletely to specifically give the impression that said reporter was not co-operating when with the investigation before their deposition/Grand Jury testimony, when, in fact, they were?

(42) Kent made the following comment | Mar 15, 2007 9:55:14 AM | Permalink

I understand how important it is that witnesses be compelled to tell the truth.

I understand how important it is that liars in court answer for their dishonesty.

And yet ... I would hate to be put on the stand and made to answer questions from memory, knowing that the lawyer asking them has notes and recordings and other stuff more reliable than my memory, and an incentive to charge me with perjury if my recollections don't match the documents.

Just sayin'.

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