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Posted on 02/11/2006 6:58:42 PM PST by Jean S
Let’s say you’re a federal prosecutor.
You’re investigating officials in the Bush White House, trying to find out whether they violated the Intelligence Identities Protection Act or the Espionage Act when they told reporters that Valerie Wilson, wife of the ardent Bush critic Joseph Wilson, worked for the CIA.
Violations of those laws would be a very serious matter indeed. And just to make your investigation a high-pressure affair, you’re dealing with some very prominent figures, including Lewis Libby, the vice president’s chief of staff, and Karl Rove, the president’s top political adviser.
Then you run into a problem. You look and look, but you can’t find enough evidence to charge either man — or anyone else — with breaking the two big national-security laws.
But you believe you have a good case that Libby lied to your grand jury. So after more than two years of probing, you charge him with perjury, obstruction of justice and making false statements.
So here’s the question: In preparation for trial, Libby’s defense lawyers want you to give them evidence that when you began the investigation you had a good reason to believe that a crime had been committed — that is, that someone had violated the intelligence identities law or the Espionage Act. Do you give it to them?
First, they want you to turn over documents showing that Valerie Wilson was a covert agent for the CIA at the time she was outed in Robert Novak’s column on July 14, 2003.
Then they want the documents showing that Mrs. Wilson had been covert at some point in the five years before she was mentioned in the Novak column — a key requirement for prosecution under the intelligence identities law.
And then they want documents outlining the damage Mrs. Wilson’s unmasking has done to national security.
At least to an outsider, those might seem like reasonable requests. After all, that’s why you started your investigation, wasn’t it?
So what do you say?
Fuhggedaboudit.
The following is from recent correspondence between CIA leak prosecutor Patrick Fitzgerald and the Libby defense team:
On Dec. 14, 2005, Libby’s lawyers asked for “all documents, regardless of when created, relating to whether Valerie Wilson’s status as a CIA employee, or any aspect of that status, was classified at any time between May 6, 2003, and July 14, 2003.”
To which Fitzgerald replied, on Jan. 9, “We have neither sought, much less obtained, ‘all documents, regardless of when created, relating to whether Valerie Wilson’s status as a CIA employee, or any aspect of that status, was classified at any time between May 6, 2003, and July 14, 2003.’”
Then the Libby lawyers asked for “any assessment done of the damage (if any) caused by the disclosure of Valerie Wilson’s status as a CIA employee.”
To which Fitzgerald replied, also on Jan. 9, “A formal assessment has not been done of the damage caused by the disclosure of Valerie Wilson’s status as a CIA employee, and thus we possess no such document.” And by the way, Fitzgerald added, we wouldn’t view that information as relevant to your case, so you can forget about getting it.
About the issue of whether Mrs. Wilson had been undercover in the five years before the Novak article, Fitzgerald said, in effect, we might have some proof of that — or we might not. You don’t need to know.
In each instance, Fitzgerald told the Libby lawyers that their requests for information on any underlying crime were irrelevant because Libby is charged with lying under oath, not with violating the Intelligence Identities Protection Act or the Espionage Act.
Well, yes, but that’s not the whole story, say Libby’s attorneys. Just look, for example, at the question of damage to national security.
“Potential harm to national security was a focus of the government’s investigation,” Libby’s team wrote in a Jan. 31 brief. “In fact, the indictment alleges that disclosure of the fact that individuals such as Ms. Wilson ‘were employed by the CIA had the potential to damage the national security.’”
The Libby team went on to point out that in his news conference last October, Fitzgerald said the leak of Mrs. Wilson’s name was not only harmful, that “the damage wasn’t to one person. It wasn’t just Valerie Wilson. It was done to all of us.”
But now, Fitzgerald maintains that the most fundamental information in the case — was an underlying crime actually committed? — is not important.
Maybe he’s on solid legal grounds. Maybe not. We’ll find out later this month, when the issue is argued in court.
But for those of us outside the courtroom, for those of us who have been told for years that the leak of Valerie Wilson’s name was a very serious crime, wouldn’t it be a good thing to know whether or not that was true?
York is a White House correspondent for National Review. His column appears in The Hill each week. E-mail: byork@thehill.com
I was being serious.
. . . and the fallacy that Fitzgerald promoted in his big "gotcha" news conference was that national security was involved.It raises the question as to whether Fitzgerald might not be liable in civil court for one of the most blatant libels on record. It certainly would be poetic justice if he found himself paying Libby's attorney fees that way!
The reason this case stinks is that it's a classic case of starting with a defendant and putting a full-court press on him until you catch him spitting on the sidewalk - then running to the microphones and making a mountain out of a molehill. Otherwise known as a fishing expedition.
I wish I had the energy and time to provoke you to a flame war, but today I do not.
In order for Libby to bes guilty of perjury, or anything else he is now being charged with, Fitz MUST prove that he lied to those he claimed he lied to and obstructed justice.
That's in the "Master of the obvious" category.
But...don't forget that Miller was thrown into jail, NOT so much because she refused to "peach" on Libby, but because she also refused to talk about another case as well.
There is ZERO evidence that she was jailed in the Libby case, for failing to provide testimony relevant to the "Holy Lands" case (Fitz's case against Miller in that one is still pending, btw).
What I do know, is that Fitz ran this investigation worse than anyone could have imagined and that there really are enough holes in it, that he needs to worry about his reputation.
I can only guess that he trusted the CIA that "their" end of the investigation, "covert," would hold up if it needed to be proven. Why else would they make a referral? But in order to close an "outing the covert agent" case, there also has to be an identifiable leaker who knew the agent was covert and knowingly leaked. Those elements are the DoJ and FBI's purview. Point being, I don't think it is all that odd for the DoJ and FBI to focus first on "find the perp."
I do agree that his reputation is taking a beating. He got on a big grandstand in his presser.
All you've done is slap on the label "initiated on legitimate grounds." What makes one case legitimate, and the other not?
I admit that a GJ testimony and a civil suit discover phase have substantial differences, and see a number of comments that point out those differences while ignoring the point of principle - the system of justice depends on truthful testimony.
But back to your label of "legitimate." How can Jones case be "legitimate" when she doesn't have actionable damages?
I'm acting the part of devil's advocate here, I think Clinton should have been prosecuted for perjury, I think Jones deserved her day in court. And I think the same principle (justice depends on truthful testimony) means Libby's indictment is "initiated on legitimate grounds." I know that isn't the "legitimate" that you meant - read on.
I think it is the CIA who didn't have legitimate grounds for forwarding a referral. But once Fitz was told "somebody outed an agent, and we think there is a violation of law," I don't find it odd that (being specifically tasked with finding the leaker) he first started looking for the leaker. He trusted the CIA, he trusted the President (who said the leak was wrong, and should be punished), and he trusted that his letter of assignment was for a legitimate purpose.
Libby should put his money where his mouth is, and bring a "legitimate" defamation suit, if he has been libeled. Since it's so blatant and all.
He can also move to dismiss on grounds of abuse of prosecutorial discretion, prosecutorial misconduct, or malicious prosecution grounds.
But he won't do either, because there aren't any grounds for either, and he knows there aren't. That's why his team is working to make this into a leak trial, and it's well conceded there has been no actionable leak.
Am I missing something here?
Yes. You are missing the fact that that investigation should have been done in the normal course of business without even considering the naming of a special counsel. There never should have been a special counsel in the first place.Just like the infamous "sixteen words" should never have been apologized for. What did he say? That "the British government" has found . . . and long after Bush's statement, the British government backed up that claim. Even if you think that the British government was wrong, it certainly doesn't make Bush a liar when he attributes that opinion to the British government.
For all of the Democrats' caterwauling about the evil genius of Karl Rove, the Bush Administration has a genious for providing them ammunition to make mountains out of
molehillsflat level ground.
Where, as JeanS points out, Clinton v Jones was a civil case.
I have it on good authority that Libby lied about his weight on his driver's license.
There was no proven crime. The CIA said "somebody outed an agent, but we don't know who the leaker is, and we don't know if the leaker knew the agent's name shouldn't have been leaked." The DoJ assumed the CIA was telling the truth.
Where, as JeanS points out, Clinton v Jones was a civil case.
There are lots of differences between the Jones "parallel" to the Libby case. Civil v. Criminal, investigation v. discovery, roles of the parties, etc. If it makes you feel better to knock down the parallel because it isn't "exact," be my guest.
Others, for example JeanS and buckhead, have acknowledged that they see the point I was trying to make. When an underlying case is an absolute loser on "grounds B" (no damages for Jones; no "covert agent" for Libby), the witnesses are not free to mislead the justice system on "grounds A."
Fitzmas was the gift that kept giving. He believes that he will be AG when Hillary is elected in 2008.
Sorry Fizty, ain't gonna happen. Start writing your book now.
That's a bad assumption because there was no leak. If there was any leak it was in Russia years before or at the Cuban Embassy by the CIA itself. Plame was not a covert agent. Period. Blowing her 'cover' did as much damage to national security as leaking the janitor's.
I'm not arguing that there was a leak, and neither is Fitzgerald.
I'm not arguing that Plame was "covert," and neither is Fitzgerald.
I agree that Fitz made too much smoke of the "damage to national security" and all that. So did President Bush by legitimizing the investigation with rhetoric like "it is important to get to the bottom of this," and "my administration will not tolerate leakers." (not verbatim quotes, meant only to give the gist of President Bush's expressed sentiments).
If Libby had given information to investigators and testified to the GJ that he (Libby) knew for a fact that Plame worked at the CIA, Fitz wouldn't have this case against Libby either.
Then why start an investigation, which is York's point? To see if he can prosecute someone for lying about a crime that wasn't committed?
I'm done with this converstation.
bttt
I mean the guy has an "R" next to his name, therefore he MUST be innocent, right? ONLY Democrats are capable of committing illegal actions. Hey, since you're so fond of ol' George and offended by Fitzgerald's indictments, perhaps you'd like to take in all the murderers that "Republican" George Ryan freed from death row.
Very creative post!!
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