Fitzgerald Investigation of Leak of Identity of CIA Agent

kuv and tico...that was laudable...or cool, take your pick.

A Cheney-Libby Conspiracy, Or Worse?
A Cheney-Libby Conspiracy, Or Worse? Reading Between the Lines of the Libby Indictment
By JOHN W. DEAN
Friday, Nov. 04, 2005

In my last column, I tried to deflate expectations a bit about the likely consequences of the work of Special Counsel Patrick Fitzgerald; to bring them down to the realistic level at which he was likely to proceed. I warned, for instance, that there might not be any indictments, and Fitzgerald might close up shop as the last days of the grand jury's term elapsed. And I was certain he would only indict if he had a patently clear case.

Now, however, one indictment has been issued -- naming Vice President Cheney's Chief of Staff Lewis "Scooter" Libby as the defendant, and charging false statements, perjury and obstruction of justice. If the indictment is to be believed, the case against Libby is, indeed, a clear one.

Having read the indictment against Libby, I am inclined to believe more will be issued. In fact, I will be stunned if no one else is indicted.

Indeed, when one studies the indictment, and carefully reads the transcript of the press conference, it appears Libby's saga may be only Act Two in a three-act play. And in my view, the person who should be tossing and turning at night, in anticipation of the last act, is the Vice President of the United States, Richard B. Cheney.

The Indictment: Invoking the Espionage Act Unnecessarily

Typically, federal criminal indictments are absolutely bare bones. Just enough to inform a defendant of the charges against him.

For example, the United States Attorney's Manual, which Fitzgerald said he was following, notes that under the Sixth Amendment an accused must "be informed of the nature and cause of the accusation." And Rule 7(c)(1) of the Federal Rules of Criminal Procedure requires that, "The indictment . . . be a plain, concise and definite written statement of the essential facts constituting the offense charged." That is all.

Federal prosecutors excel at these "plain, concise and definite" statement indictments - drawing on form books and institutional experience in drafting them. Thus, the typical federal indictment is the quintessence of pith: as short and to the point as the circumstances will permit.

Again, Libby is charged with having perjured himself, made false statements, and obstructed justice by lying to FBI agents and the grand jury. A bare-bones indictment would address only these alleged crimes.

But this indictment went much further - delving into a statute under which Libby is not charged.

Count One, paragraph 1(b) is particularly revealing. Its first sentence establishes that Libby had security clearances giving him access to classified information. Then 1(b) goes on to state: "As a person with such clearances, LIBBY was obligated by applicable laws and regulations, including Title 18, United States Code, Section 793, and Executive Order 12958 (as modified by Executive Order13292), not to disclose classified information to persons not authorized to receive such information, and otherwise to exercise proper care to safeguard classified information against unauthorized disclosure." (The section also goes on to stress that Libby executed, on January 23, 2001, an agreement indicating understanding that he was receiving classified information, the disclosure of which could bring penalties.)

What is Title 18, United States Code, Section 793? It's the Espionage Act -- a broad, longstanding part of the criminal code.

The Espionage Act criminalizes, among other things, the willful - or grossly negligent -- communication of national-defense related information that "the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation." It also criminalizes conspiring to violate this anti-disclosure provision

But Libby isn't charged with espionage. He's charged with lying to our government and thereby obstructing justice. So what's going on? Why is Fitzgerald referencing the Espionage Act?

The press conference added some clarity on this point.

Libby's Obstruction Has Blocked An Espionage Act Charge

The Special Counsel was asked, "If Mr. Libby had testified truthfully, would he be being charged in this crime today?" His response was more oblique than most.

In answering, he pointed out that "if national defense information which is involved because [of Plame's] affiliation with the CIA, whether or not she was covert, was classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espionage Act." (Emphasis added). (As noted above, gross negligence would also suffice.)

But, as Fitzgerald also noted at his press conference, great care needs to be taken in applying the Espionage Act: "So there are people," he said, "who argue that you should never use that statute because it would become like the [British] Official Secrets Act. I don't buy that theory, but I do know you should be very careful in applying that law because there are a lot of interests that could be implicated in making sure that you picked the right case to charge that statute."

His further example was also revealing. "Let's not presume that Mr. Libby is guilty. But let's assume, for the moment, that the allegations in the indictment are true. If that is true, you cannot figure out the right judgment to make, whether or not you should charge someone with a serious national security crime or walk away from it or recommend any other course of action, if you don't know the truth.... If he had told the truth, we would have made the judgment based upon those facts...." (Emphases added.)

Finally, he added. "We have not charged him with [that] crime. I'm not making an allegation that he violated [the Espionage Act]. What I'm simply saying is one of the harms in obstruction is that you don't have a clear view of what should be done. And that's why people ought to walk in, go into the grand jury, you're going to take an oath, tell us the who, what, when, where and why -- straight." (Emphasis added)

In short, because Libby has lied, and apparently stuck to his lie, Fitzgerald is unable to build a case against him or anyone else under Section 793, a provision which he is willing to invoke, albeit with care.

And who is most vulnerable under the Espionage Act? Dick Cheney - as I will explain.

Libby Is The Firewall Protecting Vice President Cheney

The Libby indictment asserts that "[o]n or about June 12, 2003 Libby was advised by the Vice President of the United States that Wilson's wife worked at the Central Intelligence Agency in the Counterproliferation Division. Libby understood that the Vice President had learned this information from the CIA."

In short, Cheney provided the classified information to Libby - who then told the press. Anyone who works in national security matters knows that the Counterproliferation Division is part of the Directorate of Operations -- the covert side of the CIA, where most everything and everyone are classified.

According to Fitzgerald, Libby admits he learned the information from Cheney at the time specified in the indictment. But, according to Fitzgerald, Libby also maintained - in speaking to both FBI agents and the grand jury - that Cheney's disclosure played no role whatsoever in Libby's disclosure to the media.

Or as Fitzgerald noted at his press conference, Libby said, "he had learned from the vice president earlier in June 2003 information about Wilson's wife, but he had forgotten it, and that when he learned the information from [the reporter] Mr. [Tim] Russert during this phone call he learned it as if it were new."

So, in Fitzgerald's words, Libby's story was that when Libby "passed the information on to reporters Cooper and Miller late in the week, he passed it on thinking it was just information he received from reporters; that he told reporters that, in fact, he didn't even know if it were true. He was just passing gossip from one reporter to another at the long end of a chain of phone calls."

This story is, of course, a lie, but it was a clever one on Libby's part.

It protects Cheney because it suggests that Cheney's disclosure to Libby was causally separate from Libby's later, potentially Espionage-Act-violating disclosure to the press. Thus, it also denies any possible conspiracy between Cheney and Libby.

And it protects Libby himself - by suggesting that since he believed he was getting information from reporters, not indirectly from the CIA, he may not have had have the state of mind necessary to violate the Espionage Act.

Thus, from the outset of the investigation, Libby has been Dick Cheney's firewall. And it appears that Fitzgerald is actively trying to penetrate that firewall.

What Is Likely To Occur Next?

It has been reported that Libby's attorney tried to work out a plea deal. But Fitzgerald insisted on jail time, so Libby refused to make a deal. It appears that only Libby, in addition to Cheney, knows what Cheney knew, and when he knew, and why he knew, and what he did with his knowledge.

Fitzgerald has clearly thrown a stacked indictment at Libby, laying it on him as heavy as the law and propriety permits. He has taken one continuous false statement, out of several hours of interrogation, and made it into a five-count indictment. It appears he is trying to flip Libby - that is, to get him to testify against Cheney -- and not without good reason. Cheney is the big fish in this case.

Will Libby flip? Unlikely. Neither Cheney nor Libby (I believe) will be so foolish as to crack a deal. And Libby probably (and no doubt correctly) assumes that Cheney - a former boss with whom he has a close relationship -- will (at the right time and place) help Libby out, either with a pardon or financially, if necessary. Libby's goal, meanwhile, will be to stall going to trial as long as possible, so as not to hurt Republicans' showing in the 2006 elections.

So if Libby can take the heat for a time, he and his former boss (and friend) may get through this. But should Republicans lose control of the Senate (where they are blocking all oversight of this administration), I predict Cheney will resign "for health reasons."
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John W. Dean, a FindLaw columnist, is a former counsel to the President.

Scooter Libby Prediction
Scooter Libby Prediction
By Alan Dershowitz
11.04.2005

So here's my prediction about how the Scooter Libby case will go down. His two new lawyers (both of whom are tough, experienced and first rate) will demand every bit of classified information arguably relevant to his defense. The independent prosecutor will seek to turn the material over, because he knows that unless they are turned over, the judge may well dismiss the charges.

But the intelligence agencies will veto the independent prosecutor's decision, claiming that disclosure of the requested classified material would endanger national security.

The question will then be posed quite starkly: who makes the final decision about whether to disclose such material? Does the independent prosecutor have final authority? Or do the intelligence branches have final authority? If the latter, will they be beholden to the White House? If so, will the White House use its power to try to get the charges against Libby dismissed by refusing the prosecutor's request to turn over the classified material, even if it is not really confidential?

This is only one possible scenario, but it is a highly plausible one. It is important, therefore, for the decision to be made now as to how much power the independent prosecutor has. If he does not have the authority to disclose classified material, then he is a Potemkin prosecutor, not an independent one.

Stay tuned.

After the Libby Indictment
November 21, 2005 issue
The Nation
After the Libby Indictment
by David Corn

The indictment special prosecutor Patrick Fitzgerald unveiled the day his grand jury expired focused on four instances when Lewis "Scooter" Libby, Vice President Cheney's chief of staff, allegedly lied to FBI agents or grand jurors about his role in the CIA leak affair. Fitzgerald outlined serious charges but did not address the central issues of the scandal, such as which Administration official initially outed Valerie Wilson, née Plame, to columnist Bob Novak; how the leaker learned of her CIA position; why that person disseminated this classified information to one or more reporters; what Bush, Cheney and other officials knew about the leak (before and after it occurred); and why Bush and others at the White House at first denied Karl Rove and Libby were "involved," though both were (Rove reportedly confirmed the leak for Novak). The indictment did expose, without elaboration, Cheney's part in an effort to undermine Valerie Wilson's husband, former ambassador Joseph Wilson, who had challenged the Administration's misleading claim that Saddam Hussein had been shopping for weapons-grade uranium in Niger. So now there are more questions than before the indictment. No one, though, has been given the job of filling in all the blanks. And this is a miscarriage of justice.

As Fitzgerald explained at his dramatic press conference, he is a prosecutor, not a public investigator. Under the law he can only release information he has gathered through a grand jury proceeding if it appears in an indictment or is used in a trial. He is not permitted to disclose other details he has unearthed. And he is not obligated--as were independent counsels of the past--to issue a final report. In fact Fitzgerald, citing Justice Department rules, said he did not have the authority to write such a report.

I saw "Good Night and Good Luck" last week, George Clooney's film on Edward R. Morrow. The film featured a Morrow speech of his on the dangers of one party rule.

We are, indeed, "See(ing) It Now."

I personally think the case against Scooter is a weak one, and he´s going to get off scott free! Unfortunately, the charges are somewhat like what happened to Clinton; it´s not about the original crime, but of lying during the Grand Jury proceedings. Sad. All that time spent on a worthless charge with no consequences.

cicerone, I think the case is solid. The lies Libby told were so blatant and easily proven to be lies. Like saying Russert told him about Plame. Russert says it never happened. It's like Libby wanted to get caught.

Libby's obstruction of justice prevented Fitz from prosecutimg the source crime...the investigation is ongoing.

See the other thread, Libby indicted.

Interesting idea, blue. D'you suppose he's the volunteer scapegoat, taking the heat off Rove & co.? I've heard political commentators say they can't understand why he lied so blatantly.

Hmmmm...he'd want a LOT of moolah for that one, I think.

How so? Perhaps you'd care to explain your line of reasoning for this oft repeated claim you and others have made? It seems quite clear that if any hurdle was placed before Fitzgerald by Libby's alleged lies, that hurdle has been cleared inasmuch as Fitzgerald has plainly asserted in the indictment that he knows what the truth is. That being the case, how has the alleged obstruction prevented him from prosecuting any supposed crimes involving the disclosure of Plame/Wilson's identity?

If you are unwilling to try and explain your reasoning, just provide a glib response along the lines of, "Nice obfuscation, you denialista." That's what I'm expecting.

How about Libby lying about his reasons for knowing this knowledge about Plame, where he got it from, and who told him to do it?

Both Cheney and Bolton are under the gun. Both could legally talk about this with others who have classified security status; but if they talked about this with the intention of smearing Plame, then they have a criminal conspiracy.

Cheney and Bolton ain't gonna testify; my guess is that Fitz has a partial case on them but needs Libby to really seal the deal.

It really isn't that hard to figure this, or other possible scenarios, out if you try, Tico....

Cycloptichorn

How about it? Are you suggesting Libby was under some compulsion to testify against himself, or do you agree the 5th Amendment would not require that of him? So again, how did his alleged lies PREVENT Fitzgerald from arriving at the truth, assuming Libby couldn't have been made to testify in the first instance?



I'm well aware of the tremendous ability you anti-Bushies have to create wild and fantastic scenarios and pass them off as gospel, so you don't need to remind me about that, Cyclops.

You continually are assuming that Libby took the fifth. There is no evidence that this is true.

If Fitz needs Libby's testimony to prove that certain conversations between him, Rove, Cheney, or Bolton took place, conversations with no third party, that Fitz suspects or knows took place but cannot prove without first-hand knowledge, then yes, he needs Libby to come clean. He needs him to flip on his bosses; this is why the 5 indictments came down the pipe on him.

Libby could STILL be lying about the nature of said conversations or whether they took place at all. Intent is vey important here, you see...

This really isn't that difficult to figure out, I say again. You are being intentionally dense.

Cycloptichorn

Cyc, no it is not hard to figure out. It should be obvious that Libby is lying to protect others. If Libby decided (decides) to to tell the truth, he would have been offered (will be offered) a better deal.

Libby's lawyers strategy will not be hard to figure out either. They will use every stall technique available to stay out of prison until Jan 19th, 2009 on which day Bush will pardon him, assuming he serves out his full term.

Please pay attention .... I have never "assumed" or "claimed" that Libby at any time plead the Fifth. The point being made is that he could have. Since he could have refused to testify on the grounds that his testimony might tend to incriminate him, I'm asking what exactly about the alleged lies has PREVENTED Fitzgerald from prosecuting Libby (or others) for any crime involving the disclosure of Plame/Wilson's name, which is the claim Chrissee has made? ("Libby's obstruction of justice prevented Fitz from prosecutimg the source crime.")

Stated another way, if Fitzgerald could not prove intent without Libby's testimony (IF he plead the Fifth), how could he have proven intent but for Libby's alleged lies? I'm not suggesting it is inconceivable, but I'd like to know the rationale behind Chrissee's assertion. (Although I'm very well-aware she does not let the lack of a logical rationale hamper her making a bold assertion.)

I do not expect Chrissee to make a cogent response to my question of her.



Again, the question is how has "Libby's <alleged> obstruction of justice" prevented Fitzgerald from prosecuting Libby or others for any crimes involving the disclosure of Plame/Wilson's name? IF Libby had simply plead the Fifth, are you suggesting Fitzgerald would have been able to prove a case against Libby/Bolton/Cheney? Or are you making the improbable claim that the hypothetical exercise of the Fifth Amendment itself would constitute "obstruction of justice"?



No, it really isn't that hard to figure out, but it appears you have yet to do so. And if you haven't figured it out after this explanation, I will conclude it is you being intentionally dense.

Chrissee is just being herself.

First of all, if you don't stop the personal remarks, I'm going to report you. I don't give a damn what your problem with him/her is, but it's childish and stupid.

Second, do I really need to plot this out for you in the simplest terms? Fitz doesn't have a strong, proven case against other players, on charges of Conspiracy and possibly Perjury, without Libby's tesitmony. It doesn't matter if Libby pleads the fifth or not, because Fitz simply can't get the info he needs without Libby telling the truth. So he entices Libby to tell the truth, to NOT plead the fifth, by bringing big charges his way.



Conspiracy to release Plame's name based upon direct orders from Cheney. These conversations/orders were never written down, so without firsthand confirmation, there is no way to prove the complicated conspiracy charges; or perhaps to prove charges of Perjury against Bolton or others, that they did in fact discuss things that they specifically claimed they did not.

Sheesh

Cycloptichorn

What on earth are you talking about?



Exactly, and any attempt to claim Fitzgerald can't prove his case because of the alleged obstruction is bogus. It would make as much sense to say, "Libby's exercise of his 5th Amendment rights prevents Fitz from prosecuting the source crime." In other words, not much sense at all.

The first part refers to your continued derision of Chrisee or whatever he/she is calling him/herself. It's childish.

Secondly, what? Isn't the very definition of Obstruction of Justice the allegation that lies/deceptions are getting in the way of investigation?

Are you claiming that Fitz is full of it on the Obstruction charge? Because I doubt he would make such a mistake....

Cycloptichorn