Normally I wouldn’t regard the details of Lewis “Scooter” Libby’s indictment as falling within the scope of my interests. They will, however, be the raw material for years of conspiracy theorizing by Angry Leftists disappointed at so small a “Fitzmas” package, so reading the document is worthwhile, if only to make it easier to recognize its future misuse.
One implication stands out clearly, though the media are not likely to make much of it: The special counsel found no evidence of misconduct by the Bush Administration in its response to Joseph Wilson’s falsehoods about his mission to Niger (see the Addendum infra). In particular, Mr. Fitzgerald evidently concluded that the disclosure of Valerie Plame Wilson’s employment by the CIA was not improper and did not endanger national security. He thought, at the outset of his inquiry, that he might uncover a significant breach of security. As the indictment puts it,
The responsibilities of certain CIA employees required that their association with the CIA be kept secret; as a result, the fact that these individuals were employed by the CIA was classified. Disclosure of the fact that such individuals were employed by the CIA had the potential to damage the national security in ways that ranged from preventing the future use of those individuals in a covert capacity, to compromising intelligence-gathering methods and operations, and endangering the safety of CIA employees and those who dealt with them. [Indictment, Count One, ¶1.d]
Mrs. Wilson assertedly fell into that category [Indictment, Count One, ¶1.f] We can reasonably infer that she did not meet the criteria for coverage under the Intelligence Identities Protection Act. If she had, the indictment would undoubtedly say so, rather than rely on a broader legal theory that, if correct, would render the IIPA superfluous. Since the IIPA did not apply, the special counsel had to ascertain (i) whether someone who knew that she was “under cover” leaked her CIA connection to an unauthorized person and (ii) whether publication of that information was detrimental to national security.
A major focus of the Grand Jury Investigation was to determine which government officials had disclosed to the media prior to July 14, 2003, information concerning the affiliation of Valerie Wilson with the CIA, and the nature, time, extent, and purpose of such disclosures, as well as whether any official making such a disclosure did so knowing that the employment of Valerie Wilson by the CIA was classified information. [Indictment, Count One, ¶28]
We must indulge in a little argumentum ad silentium here, for Mr. Fitzgerald has not told us in so many words what he didn’t discover. But his silence is eloquent. He certainly knows –
who told Bob Novak that Valerie Plame Wilson worked for CIA;
whence those informants got their information;
whether they knew or should have known that Mrs. Wilson’s status was classified;
what Mrs. Wilson really did in her CIA position;
why the CIA wanted to keep her employment secret; and
how much importance it attached to that secrecy.
Having those data in his possession, Mr. Fitzgerald is in a better position than any of us to judge whether the leak was harmless or innocent. He let his grand jury expire without returning indictments against anyone except Mr. Libby, who is not charged with disclosing classified information and was not a source for Bob Novak, the columnist who made the leak public. The only rational inference is that he found no mishandling of official secrets that was blameworthy enough to prosecute. Until and unless new facts emerge, I don’t see how anyone can reasonably disagree. (Unreasonable disagreements we will see in plenty, of course.)
Turning to the case against Mr. Libby, its entirety is that he lied to FBI agents and the grand jury about four conversations that he had with reporters: Tim Russert (NBC) on July 10, 2003, Matt Cooper (Time) on July 12, 2003 and Judith Miller (New York Times), on July 8, 2003, and July 12, 2003. All took place before Bob Novak’s column appeared (July 14, 2003) but well after Mr. Libby had learned from multiple sources within the Administration that Mrs. Wilson worked for the CIA and had arranged for her husband to be sent to Niger in February 2002 to investigate whether Saddam Hussein’s regime was attempting to purchase uranium from that country. Presumably, though we are not told this, Mr. Libby also knew by then that Mr. Wilson’s accounts of his findings, as told to gullible reporters and expounded in a New York Times op-ed, were bold-faced lies.
The indictment charges that Mr. Libby misrepresented the crucial conversations as follows:
1. Tim Russert – The Libby version: Mr. Russert asked him whether Mr. Wilson’s wife worked for the CIA and averred that her employment was well known among reporters. Mr. Libby found this information surprising. The indictment: The conversation was about a different subject altogether, and Mrs. Wilson never came up.
2. Matt Cooper – The Libby version: Mr. Libby raised the subject of Mrs. Wilson, saying that other reporters had told him that she worked for the CIA but that he couldn’t vouch for the story’s accuracy. The indictment: All that happened was that Mr. Cooper asked whether Mrs. Wilson was a CIA employee, and Mr. Libby confirmed that she was.
3. Judith Miller – The allegations concerning the conversations with Miss Miller are set forth in the narrative portion of Count One, but there are no corresponding counts of false statements or perjury. That is probably because her own account of what she told the grand jury basically supports the defense. For what it is worth, the narrative asserts that, on July 8, 2003, “LIBBY advised Miller of his belief that Wilson’s wife worked for the CIA” (Count One, ¶17) and, on July 12, 2003, the two of them “discussed Wilson’s wife, and that she worked at the CIA” (Count One, ¶24). Miss Miller doesn’t recall receiving information about Mrs. Wilson from Mr. Libby, though the names “Valerie Flame [sic]” and “Victoria [sic] Wilson” appear, with no context, in her notes. She doesn’t remember why she wrote them down, nor whether they reflect any portion of the discussion with Mr. Libby.
The indictment does not allege that Mr. Libby ever gave classified information to any reporter other than Judith Miller. In its version of events, he said nothing to Tim Russert about the matter and merely confirmed information that Matt Cooper already had from another source. Miss Miller’s testimony (unless she bizarrely misled her readers) tends to vindicate the defendant. Not only does she have no recollection of what would have been a significant revelation, but a leaker isn’t likely to have gotten the key name wrong twice in different ways. (Maybe he was presciently warding off suspicion? If he was that clever, he wouldn’t be in this jam.)
What we are left with, then, is this: If the special counsel is right, a veteran Washington lawyer lied about innocent events in order to make himself look guilty. That sounds beyond bizarre. Unless one wishes to construct a truly labyrinthine conspiracy theory – and I have no doubt that such theories are already popping up weed-like at Daily Kos and its ilk – the plausible hypothesis is that Mr. Libby was betrayed by faulty memory. The special counsel rejects that notion, not, I think, because he was bound and determined to indict someone, but because there are limits to how much memory loss is credible. On this point, the purported conversation with Tim Russert is the key. The indictment quotes Mr. Libby’s grand jury testimony on March 5, 2004 [I have edited slightly for clarity]:
And then [Russert] said, “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 that. He may have said a little more than 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 [and] because at that point in time I did not recall that I had ever known [it]. I thought this [was] something that he was telling me that I was first
learning. . . .
And then he said, “Yeah, all the reporters know it.” And I said again, “I don’t know that.” I just wanted to be clear that I wasn’t confirming anything for him in this. And, you know, I was struck by what he was saying in that he thought it was an important fact, but I didn’t ask him any more about it, because I didn’t want to be digging in on him. And then he moved on and finished the conversation. [Indictment, Count Four, ¶2]
Several months earlier, Mr. Libby had told the same tale to the FBI. The indictment summarizes his statement as follows:
During a conversation with Tim Russert of NBC News on July 10 or 11, 2003, Russert asked LIBBY if LIBBY was aware that Wilson’s wife worked for the CIA. LIBBY responded to Russert that he did not know that, and Russert replied that all the reporters knew it. 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. [Indictment, Count Two, ¶3]
The indictment alleges that these details were fabricated. In reality, “LIBBY spoke
Libby on Russert doesn’t sound real believable. Indeed, it can’t be true unless Tim Russert lied to the special counsel and forged corroborative documentation, which is more than even a press skeptic like me can swallow. It’s easy to figure out why the special counsel is unhappy: Disproving Mr. Libby’s insistence that the Plame-CIA link was well known to reporters must have consumed time and resources, thus materially interfering with the rest of the investigation. Concern about such detours is one reason why perjury, including seemingly innocent fibs, is (or ought to be) punished harshly.
All that sounds simple and clear-cut, so much so that the consensus of lawyers willing to be quoted is that the prosecution has an immensely strong case. Criminal defense law is about as far away from my area of expertise as one can get. Nonetheless, it seems to me that the consensus view is overhasty and that there are weaknesses for the defense to exploit.
First and foremost is the absence of a motive for perjury, without which it will be hard to overcome jurors’ reasonable doubts. A question posed to Mr. Libby suggests how the prosecution will seek to fill that gap:
And let me ask you this directly. Did the fact that you knew that the law could turn, the law as to whether a crime was committed, could turn on where you learned the information from, affect your account for the FBI when you told them that you were telling reporters Wilson’s wife worked at the CIA but your source was a reporter rather than the Vice President? [Indictment, Count Five, ¶2.b]
The weakness of that theory is that, according to the indictment’s view of the facts, Mr. Libby didn’t “tell reporters Wilson’s wife worked at the CIA”. The jury will hear that he said nothing about the subject to Tim Russert and nodded at information that Matt Cooper already possessed. It will hear nothing about Judith Miller, unless the prosecutor is willing to risk a hostile witness or a devastating cross-examination. Will the Twelve Good and True believe that Mr. Libby concocted an excuse for actions that he hadn’t engaged in?
I see a dilemma for the prosecution. Its case would be strengthened if the Libby version of his conversation with Mr. Cooper were true, that is, if the defendant initiated the discussion of Mrs. Wilson. But if Mr. Libby is verus in uno, may the jury not think him verus in omnibus? Defense counsel will have fun with, “Mr. Fitzgerald charged my client with lying about what he said to Matt Cooper. Now he admits that it was Mr. Cooper who was mistaken, but he hasn’t indicted him for perjury. Can you be so sure that Tim Russert isn’t mistaken, too? Are you sure beyond a reasonable doubt?”
It won’t surprise me if the defense puts on no witnesses, then argues that the prosecution is seeking to send a man to jail for up to 30 years and fine him up to $1.25 million, all based on a discrepancy in recollections about two brief conversations and without showing any plausible reason why he would have deliberately lied. He could well have been wrong about what he, Tim Russert and Matt Cooper said to one another, and he could certainly have misrecollected, after the Plame Affair had been in the news for months, his state of mind in July 2003, but what has the prosecution put in evidence to demonstrate that any errors were intentional and designed to mislead? That sounds to me like a line of defense that could very well end in acquittal, whether or not the defendant is, in the recesses of his heart, guilty as charged. If Mr. Fitzgerald hopes to overcome it, he had better have more arrows in his quiver than he has displayed so far. Maybe he does; maybe not.
Addendum: National Review Online’s Media Blog is campaigning to shame newspapers and TV networks into telling the truth about Joe Wilson’s deceptions, instead of covering him in a warm, fuzzy, “brave whistle blower” blanket. Every informed commentator who isn’t a raving victim of Bush Derangement Syndrome knows that Wilson lied and lied and lied and lied and keeps on lying. The Washington Post’s editorial page, of all places, acknowledges that his “allegations that the administration twisted that small part of the case against Saddam Hussein” were “mostly erroneous”.
I urge everyone who blogs about the Libby case to be sure to mention that, whatever he did wrong, Scooter Libby’s objective was to expose a malignant, antisemitic, anti-American prevaricator.
Addendum (11/1/05): For insight into what Wilson was saying before he became famous, vide “Before Novak, The Joe Wilson Speech that Made Clear His Agenda”. “Malignant, antisemitic, anti-American prevaricator” is a characterization that he earned long ago.
Caution: Moonbat on Board: Someone calling himself “kstreetfriend” has posted a long comment below. Rather, he has cut and pasted an entry from his own blog, apparently afraid that nobody would follow a link to that site (which is, I note in passing, racist and paranoid). The bulk of his rant consists of attacks on Reginald Walton, the judge who has been presiding over the special counsel’s investigation. My research assistant, Mr. Google, quickly found that slandering Judge Walton, a George H. W. Bush appointee, is popular in certain left wing circles. It gives them psychological comfort as “Fitzmas” fizzles, I suppose.
A CIA officer’s name was blown, there was an apparent leak of information to friendly reporters in the national media, national security was at stake, a news reporter was eventually jailed, an administration mover and shaker called: “Scooter” has been indicted for possible obstruction of justice, perjury, and making false statements, and the federal judge assigned to the case was appointed by the same executive branch and had previously served in the White House Media Affairs Office.
Is there just too much by happenstance for this to be just a coincidental thing?
What a saga, sometimes humorous, sometimes crazy and gripping, but in fact, really serious, with each new segment so far finishing with a cliff hanger leaving the country eager for more information. It’s a tangled web of lies, cover-up, judgment of others, and corruption at the highest level of government (an unnecessary war with Iraq). It involves the po-po (the FBI), an assistant to the president of the United States, the chief of staff to the vice president, an assistant to the vice president for national security affairs, and a ruff neck (keeps it real and knows the streets) judge who once admitted as a junior in high school he discovered his father’s guns and straight razor and started sneaking them out of the house tucked into his pants (one of the fights escalated from punching to a boyhood friend being stabbed nine times with an ice pick). There’s also the highly unusual (August 2005) fight where this same federal judge wrestled a man to the ground during a traffic incident on the Chevy Chase Circle (Washington, D.C.).
Maybe it’s just a part of the George W. Bush legacy? Maybe it’s just an element of indeterminacy in human actions which often works in favor of true disclosure? Nonetheless, both political parties would prefer for their own reasons not to pursue the truth, and the media will be content to go along with the typical hyperbole (cover-up), and the greater peril will be to the public’s confidence in the fair and impartial administration of justice.
The American judiciary was placed into the frame work of our system so that no one branch of government could become too powerful and exercise its powers unduly either over the other branches or the American people. For many the separation of power has basically disappeared.
I. Lewis “Scooter” Libby, vice president Dick Cheney’s chief of staff, although indicted by a federal grand jury on five charges related to the CIA leak probe (one count of obstruction of justice, two counts of perjury, and two counts of making false statements), appears to be confident that at the end of this process he “will be completely and totally exonerated.” Karl Rove, president Bush’s top political adviser, who testified four times before the grand jury and wasn’t indicted (but not yet out of legal jeopardy), said through his attorney Robert Luskin, “We are confident that when the special counsel finishes his work, he will conclude that Mr. Rove has done nothing wrong.”
But, how can they be so confident? Both Libby and Rove as senior government officials with responsibilities for national security matters (entitling them to access to classified information) were obligated by applicable laws and regulations, including Title 18 United States Code, Section 793, and executive Order 12958 (as modified by executive order 13292) not to disclose classified information to persons not authorized to receive such information, and otherwise required to exercise proper care to safe guard classified information against unauthorized disclosure.
At issue is Joseph Wilson, who was married to Valerie Plame Wilson. Mrs. Wilson was employed by the CIA and her employment status was classified. Prior to July 14, 2003, her affiliation with the CIA was not common knowledge outside the intelligence community. In 2002, after an inquiry to the CIA by the vice president concerning certain intelligence reporting, the CIA decided on its own initiative to send Wilson to the country of Niger to investigate allegations involving Iraqi effort to acquire uranium yellow cake, a processed form of uranium ore. Wilson orally reported his findings to the CIA upon his return.
On or about January 28, 2003, president Bush delivered his State of the Union Address which included “sixteen words” to justify war with Iraq asserting that “the British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa. But as part of the American system of check-and-balances on May 6, 2003, the “New York Times” published a column by Nicholas Kristof of which disputed the accuracy of the “sixteen words” president Bush used in the State of the Union Address. The column reported that the ambassador sent to investigate the allegations had reported back to the CIA and State Department in early 2002 that the allegations were unequivocally wrong and based on forged documents (It’s just impossible to operate a clear conspiracy where all the pieces fit together).
On or about June 23 and the morning of July 8, 2003, Libby met with “New York Times” reporter Judith Miller and discussed Wilson’s trip and his belief that Wilson’s wife worked for the CIA. When the conversation turned to the subject of Joseph Wilson during the second meeting, Libby asked that the information Libby provided on the topic of Wilson be attributed to a “former Hill staffer” rather than to a “senior administration official.” An under secretary of state had orally advised Libby on or about June 11 or 12, 2003, while in the White House that, in sum and substance, former ambassador and career state department official Joseph Wilson’s wife worked at the CIA. Additionally, the vice president himself had also advised Libby that Wilson’s wife worked at the CIA in the counter-proliferation division.
Shortly thereafter, on July 10 or July 11, 2003, Libby spoke with Rowe, who advised Libby of a conversation Rowe 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 Rowe that Novak would be writing a story about Wilson’s wife.
On September 26, 2003, the Department of Justice authorized the Federal Bureau of Investigation to commence a criminal investigation into the possible unauthorized disclosure of classified information regarding the disclosure of Valerie Wilson’s affiliation with the CIA to various reporters in the Spring of 2003. A major focus of the grand jury investigation was to determine which government officials had disclosed to the media prior to July 14, 2003 information concerning the affiliation of Valerie Wilson with the CIA, and the nature, timing, extent and purpose of such disclosures, as well as whether any official making such a disclosure did so know that the employment of Valerie Wilson by the CIA was classified information (conducted an investigation into possible violations of federal criminal laws, including Title 50, United States Code, Section 421 – Disclosure of the identity of covert intelligence personnel; and, Title 18, United States Code, Sections: 793 Improper Disclosure of National Defense Information, 1001 False Statements, 1503 Obstruction of Justice, and 1623 Perjury).
As part of the criminal investigation, Libby was interviewed by special agents of the FBI on or about October 14 and November 26, 2003, each time in the presence of his counsel. But, during the interviews, Libby is accused of lying about material facts related to the disclosure of Valerie Wilson’s affiliation with the CIA. Libby is said to have knowingly and corruptly endeavored to influence, obstruct, and impede the due administration of justice, namely proceedings before the grand jury, by misleading and deceiving the grand jury as to when, and the manner and means by which, Libby acquired and subsequently disclosed to the media information concerning the employment of Valerie Wilson by the CIA. He is also said to have knowingly and willfully made a materially false, fictitious, and fraudulent statement and representation in a manner within the jurisdiction of the federal bureau of investigation. If convicted, the crimes charged in the indictment carry the following maximum penalties: Obstruction of Justice – 10 years in prison; Making False Statements and Perjury – each 5 years; and each count carries a maximum fine of $250,000.
A George W. Bush appointee will determine the appropriate sentence to be imposed, if any. Judge Reggie B. Walton, with a minimal academic performance in high school, poor grades in college, and very poor showing on the law boards, enrolled into the CLEO program and somehow managed to earn an academic scholarship to American University College of Law. He graduated in 1974 and took a job as a public defender in Philly (Philadelphia). In 1976, he left that job for a position at the D.C.’s United States Attorney’s office. Here, he met Bob Bennett (brother of William Bennett Drug Czar appointed by George H.W. Bush) and in an attempt to establish credibility on minority issues the republicans appointed Walton to the number two drug czar position. For the next two years that followed, Walton traveled the country spreading the republican anti drug message to black communities.
In 1981, Ronald Reagan appointed Walton to the D.C. Superior Court. But for unexplained reasons in 1989, Judge Walton moved to the White House Office of Media Affairs. Only to be appointed again in 1991 by George H.W. Bush to the D.C. Superior Court. President Bush appointed him to the federal bench (District of Columbia) on October 29, 2001.
Please note Judge Walton’s tenure in the White House Communications Office (considered an element of the continuing campaign). The office often calls local radio stations, television stations, and newspapers daily to see if they’d be interested in an interview with an administrative figure. It also has a supporting element (research units) available not only for the communications head but to the chief of staff and other white house senior staffers.
Since his appointment to the bench, Judge Walton has been assigned the majority of the most troubling legal matters involving the Bush administration. An appointed judge should avoid impropriety and the appearance of impropriety, but Judge Walton's willingness to often speak (for the administration it seems) on highly charged partisan issues further shakes public confidence in the judiciary. For example, following the death of Terri Schiavo, Judge Walton was dispatched to speak with NPR’s Ed Gordon about what he considered liberal “activism” in the U.S. Courts.
In 1998, the republican appointee enumerated some of the standard racist conceptions often voiced by the right wing, telling Judy Cresanta and Kari Larney of the Nevada Policy Research Institute “bad parenting, bad neighborhoods and guns” fuels the problem with youthful offenders. However, in the book “Black Judges on Justice” Judge Walton had a black moment (said something really gangsta) and did admit as one of his major frustrations while working with the Bush administration, his inability to convince administration officials of the fact that fighting crime is ineffective without attacking social causes of crime.
Judge Walton is the federal judge who threw out a lawsuit filed by a whistle-blower who alleged security lapses in the FBI’s translator program, ruling that Sibel Edmond’s claims might expose government secrets that could damage national security. He said that he couldn’t explain further because his explanation itself would expose sensitive secrets and disrupt diplomatic relations. Edmond’s lawyer, Mark S. Zaid, called the decision “Another example of the executive branch’s abuse of secrecy to prevent accountability.” Ms. Edmond, a former contract linguist, alleged in her lawsuit that she was fired in March 2002 after she complained to FBI managers about shoddy wiretap translations. She contended that she told the FBI an interpreter with a relative at a foreign embassy might have compromised national security. Although the government’s lawyers met with Judge Walton at least twice privately, Edmond had claimed the republican appointee dismissed her lawsuit without hearing evidence from her attorneys.
In September 2005, Judge Walton dismissed two claims, but left open the possibility Steven Hatfill, a scientist once named by the Department of Justice as a possible suspect in the anthrax-letter attacks of 2001, could hold officials accountable (count seeking a declaration that former Attorney General John Ashcroft and others unconstitutionally deprived him of employment opportunities). A fourth claim seeking monetary damage from the federal government for alleged privacy act violations, also remains alive, but two counts to hold defendants individually responsible were dismissed. The judge had delayed the case saying that he wanted the Department of Justice investigation of the issue to proceed without interference from Hatfill’s civil suit. Many observers of the investigation dismissed the judge’s pronouncements about the case – the government had been periodically advertising impending breakthroughs since just about the time the spore-ridden letters were mailed out, some critics pointed out. Mr. Hatfill, a bio-terrorism expert, contends his reputation was ruined when law enforcement officials called him a “person of interest.” Hatfill once worked as a researcher at the Army Medical Research Institute of Infectious Diseases at Fort Detrick, Frederick, Md. At one time the FBI had Hatfill under 24-hour surveillance.
Judge Walton also ruled that a Missouri charity financed terrorism and is connected to a similarly named organization in Sudan, dismissing a lawsuit filed by the Islamic American Relief Agency – USA, which is based in Columbia, Mo. The charity had sought to thaw its assets which the treasury department froze in 2004. Lawyers for the Missouri charity had denied any link to terrorism and had said the charity is entirely separate from the Sudanese organization. Judge Walton said his decision was based on both public records and classified documents. Shareef Akeel, a Michigan lawyer representing the charity said nothing in the public part of the record showed that the charity had sent money out of the country for illegal purposes.
In a case involving a request for documents on the Oklahoma City bombing which resulted in convictions of Timothy McVeigh and Terry Nichols, Judge Walton held that FOIA plaintiff (Judicial Watch) was required to file an administrative appeal for the documents, even if they were suing over the agency’s refusal to grant expedited processing. Judge Walton said the Judicial Watch was attempting to “bootstrap” its disclosure requests onto its bid for expedited processing. Although it appears that the FBI subsequently failed to timely respond to Judicial watch’s substantive request for documents within 20 days, Judge Walton said he will only consider those facts and circumstances that existed at the time of the filing of the complaint, and not subsequent events.
A coalition of hunting supporters that included Safari Club International and numerous other sportsmen’s groups were dealt a blow by Judge Walton when in 2004 he dismissed their attempt to stop black bear hunting in New Jersey’s National Park Service Lands.
In January 2004, Judge Walton held the longstanding ban on the sale and possession of handguns in Washington, D.C., is constitutional. The suit, brought by the National Rifle Association, challenged the constitutionality of the handgun ban on Second Amendment grounds. In the ruling, Judge Walton dismisses the suit, noting that, “The Court must conclude that the Second Amendment doesn’t confer an individual right to posses firearms. Rather, the amendment’s objective is to ensure the vitality of state militias."
Finally, a three-judge panel of a federal appeal court unanimously reversed Judge Walton, ruling that the public has the right to challenge an interior department official’s approval of the proposed Roundup Power Plant despite studies showing that it would pollute air in Yellowstone National Park and Wilderness areas. The decision by the U.S. Court of Appeals for the District Court of Columbia Circuit affirmed the public’s legal right to challenge a political appointee’s approval of the proposed power plant. Judge Walton had dismissed the case saying the conservation groups lacked standing because the ultimate permitting agency was the State of Montana. The National Parks Conservation Association, The Greater Yellowstone Coalition, The Wilderness Society, and a Denver resident alleged the Interior Department officials violated the Clean Air Act which prohibits degradation of air quality by man-made sources in pristine air sheds such as parks and wilderness areas.
Posted by: kstreetfriend.blogspot.com | Tuesday, November 01, 2005 at 03:40 PM
Am I the only one troubled by the manner in which this indictment came about? It seems that the special counsel had to have known very quickly that Plame did not qualify as a covert agent. That does not mean he should have folded up his tent at that point, but the fact that he allowed the impression to remain that Libby could be prosecuted for outing a covert agent bothers me. Fitzgerald may have been trying to use a potential charge of outing a covert agent as leverage to get Libby and others to cooperate. If so, he was also providing the motivation to commit perjury. (Even if Libby believed he could beat such a charge in court, the mere indictment on the charge of outing a covert agent would have been devastating to Libby and the Administration.)
This is a kissing cousin of entrapment. No one should lie to the FBI or under oath. Neither should they break the law just because the cops encouraged them to do so. Still, we allow the otherwise guilty to go free if the police "entrapped" them to break the law. What about when a prosecutor allows unfounded fear of an indictment to prompt someone to be creative with their testimony? Prosecutors ought not use baseless threats of prosecution to pressure witnesses. Doing so MIGHT increase the chance a witness cooperates, but it also increase the likelihood the witness' memory might be faulty. Besides, it's unseemly to charge someone for lying in response to what was, in effect, the prosecutor's own lie.
Posted by: David Walser | Monday, October 31, 2005 at 10:47 AM
Please keep in mind, people:
'I heard that too' is NOT a confirmation of anything and confers no underlying information.
It gives no information as to the source.
It doesn't even indicate whether the speaker believes the information to be true.
Posted by: Syl | Monday, October 31, 2005 at 12:54 AM
Great post. From my experience, a prosecutor who puts out a case which essentially relies on three tenuous witnesses with other agendas than mere truthful testimony has motives other than winning a trial. What do you think?
Posted by: vnjagvet | Sunday, October 30, 2005 at 04:45 PM
Good points by Steve in terms of Libby's cooperation and state of mind.
IN addition to the waivers, the investigation relied on Libby's own notes as a road map (Be 10 2004 NY Times).
Per the indictment, by his second interview with the FBI at the latest (the indictment does not separate the two FBI interviews), the FBI knows that Libby learned about Plame from Cheney.
Did his own notes guide the investigators to his other contacts - the indictment does not say, but *if* they did, that should count in Libby's favor - the argument would be that it never dawned on him that the FBI was confused about when he learned about Plame, since it was right in his notes.
Of course, if his notes concealed those other conversations, that might be bad.
Posted by: Tom Maguire | Sunday, October 30, 2005 at 10:32 AM
1. Tim Russert – The Libby version: Mr. Russert asked him whether Mr. Wilson’s wife worked for the CIA and averred that her employment was well known among reporters. Mr. Libby found this information surprising. The indictment: The conversation was about a different subject altogether, and Mrs. Wilson never came up.
Yeah, I thought the conversation was about a different subject, too (and I am not sure why I thought that - is that stated in the indictment, or just implied?)
Anyway, Christmas comes early - at TNR, Matthew Crowley has nominated a Chris Matthews rant from July 8 about Libby, Wilson, and Niger as the probable impetus for Libby's call.
SO Russert's real story is, we talked about Wilson's trip, but not his wife.
And Libby's story is, we talked about the trip and the wife. That is a much narrower chasm.
Great job.
(Cooper has a new article in TIME where he seems to question his own memory. And remember, he was weak on the question of whether he and Rove discussed welfare reform. I think Fitzgerald has one witness).
Posted by: Tom Maguire | Sunday, October 30, 2005 at 09:37 AM
I think you're right in that the indictment comes down to a Libby says he said X to Miller, Cooper and Russert, and the prosecution says Libby really said Y to them... which means that Fitzgerald's star witnesses are bona fide members of the MSM, one of which is married to a partisan Democrat, another used to work for a Democrat and the third's credibility is being trashed by her own employer.
Second, as I've pointed out, it makes no sense for Libby to have given Miller, Cooper and Russert waivers if he knew they would contradict his story. Better for him to quit than to hand the keys to a prosecution over to Fitzgerald.
Third, the indictment alleges that Libby lied during meetings his own attorney attended. Since attorneys can't sit quietly while their clients lie, either Tate had to be ignorant of what Libby really knew, and documents that likely passed through Tate's office would have revealed, or Tate also believed that Libby was telling the truth.
Fourth, Fitzgerald's statement said Libby lied to the FBI in order to get them to go away. But how does pointing them in the wrong direction make them go away. Libby supposedly tells a story to the FBI and the FBI beats a path to Russert, Cooper and Miller. This is like a suspect offering up as an alibi someone he knows isn't going to cover for him... but unlike a typical suspect who's trying to come up with an excuse while being pressured by the police, Libby had lots of time to think about what he was going to say to the FBI... and the idea that he would send them to people who wouldn't back his story up is very hard to accept.
Here's my full list of posts
Posted by: stevesturm | Sunday, October 30, 2005 at 08:35 AM