Illegal Language in Lewis Libby's Indictment?

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I spent a good deal of time this afternoon listening to Special Prosecutor Patrick Fitzgerald talking about how it's illegal for him to say anything beyond the issues raised in the indictment of Scooter Libby that his grand jury issued today. Reporters kept asking to get tidbits on Rove, Cheney, and the conspiracy theory that this was an organized revenge against Joe Wilson. Fitzgerald honorably resisted their attempts to draw out information on anyone who wasn't indicted and on any events not necessary to explain the indictment.

There's one thing that's bothering me, though. The indictment goes on and on about how serious it is to leak the identity of an undercover CIA agent (leaving aside the issue of whether someone listed in Who's Who as a CIA agent is really undercover). If Fitzgerald had been able to get the grand jury convinced that they had enough to indict either Libby or Karl Rove on that sort of charge, they would have included indictments on those matters. They didn't pursue that course. So isn't it illegal for Fitzgerald to include all that language in the indictment? Maybe I just don't understand the law he's referring to, but it seems to me that his own description of what he can and can't talk about shouldn't allow that language in the indictment at all, and when he resisted answering reporters' questions he really made it sound as if his talking about such matters would be a serious crime. Why isn't it an equally serious crime to talk about all those things not related to the indictment that he talks about in the indictment itself?

10 Comments

Had Fitzgerald discussed the CIA leak crime when speaking with the press he may have inadvertently said something damaging. There's a difference between saying something in a carefully worded indictment, and saying something in the "heat of the moment" when a gazillion cameras are pointed at you.

I think the reason Fitzgerald included the language about the seriousness of leaking the identity of a CIA officer is to underscore that Libby's (alleged) misstatements, etc... were related to a serious underlying crime, rather than his misstatements being related to what he had for breakfast.

I can see how he would need to mention the nature of the crime being investigated in the indictment, but the rhetoric about the seriousness of the crime seems to me to be irrelevant to the nature of the crime he was being indicted for. As far as the law is concerned, lying to a grand jury is lying to a grand jury. It doesn't matter what you're lying about. That's why it doesn't matter for this indictment if it can even be proved that Valerie Wilson was an undercover CIA agent given the problem of having been listed in Who's Who or if it can be proved that Libby knew she was undercover even if she was. Even if there was no crime with respect to Wilson's being talked about, he lied to the grand jury. For that, he's being indicted. This particular indictment requires nothing about the seriousness of the charges that they can't seem to get enough evidence to sustain.

It certainly is more serious morally to lie about certain things than other things, but he's not bringing a moral judgment. He's a prosecutor bound to obey the law, and how serious the crime being investigated (but not being charged) might have been should be out of bounds for this indictment, because those charges aren't being brought. At least, this seems to be so by Fitzgerald's own account of what he can and can't talk about.

The key distinction here is between leaking and breaking the law in question. As we've all heard over and over again, it takes a lot more to break this law than to leak the identity of a covert agent -- and some of the extra conditions have to do with the state of mind of the perp. It seems that Fitz, at least at this time, doesn't have sufficient evidence that anyone is guilty of breaking the law in question. (And that could very well be b/c nobody is guilty of breaking the law in question, given all it takes to actually break that law.) So he shouldn't be saying or implying that anyone is guilty of breaking that law. And as far as I heard, he did no such thing. But if he does have sufficient grounds for thinking there was a leak -- and surely he does: in fact, we all know that -- he doesn't have to pretend that he doesn't know that. In fact he pretty well has to know that in order to know that what he's nailing Libby for saying really was false. Everything I heard him say seemed perfectly in order. In particular, he explained why Libby's obstrucion of justice, lying, and perjury on this matter were such serious offenses. In doing so, he did assume that a leak occurred, but he was in a position to know that. (In fact, he knew quite a bit about Libby's role in the leak -- though not enough to say that Libby had broken the law.) He was explaining that it was important to learn the truth about the circumstances under which the leak occurred, b/c under some possible circumstances -- where it was done knowingly, intentionally and maliciously -- the leak is an extremely serious matter. But I didn't hear him say anything that implied that the leak was done in such a way. Just that he was trying to find out if it was done in that way. And he was claiming that since finding that out is so important, it's very harmful to lie (esp. repeatedly & under oath) and to thereby prevent the truth from coming out.

I don't think this is right:

the seriousness of the crime seems to me to be irrelevant to the nature of the crime he was being indicted for. As far as the law is concerned, lying to a grand jury is lying to a grand jury.

Lying to a grand jury is indeed a crime regardless of how trivial the underlying matter is, but the harm done by the lie does affect the seriousness of the crime, and is the kind of consideration that is very relevant, for instance, in sentencing. Also, it's often an important consideration to prosecutors in deciding whether to bring charges in the first place -- and, of course, Fitz was was explaining why Libby was being indicted.

I think my problem is that he did say he was trying to find out if the leak was done in a knowing, intentional, and malicious way. He said he couldn't say if he was trying to find out what Rove might have done or what other people might have done. So why is it that he can say that he's trying to find out something about what other crimes Libby might have done? That seems like a genuine inconsistency, unless there's a distinction I'm just not seeing.

I hadn't thought about sentencing. That seems right. Moral seriousness does affect that, and seriousness of sentence certainly is a legal kind of seriousness.

I didn't listen to Fitz; I only read the press release. And I am not a lawyer. So I may have no idea what I'm talking about. But here is my take on it given what you have already said and what I have picked up from various places.

It is illegal for Fitz to accuse people of crimes or implicate people of crimes unless he is in the process of indicting them for those crimes. I am assuming that doing so would be something akin to slander. Thus he cannot say anything about, say, Rove.

Now, your question is why Fitz is not breaking the law by talking about the CIA leak investigation since he is not currently indicting anyone for that crime. But from what I gather, Fitz has been careful to not actually accuse or implicate anybody in relation to the charge of leaking classified information. Thus there is no "slander" and Fitz is not breaking the law. Fitz frames the perjury/obstruction charges as happening "while I was investigating a leak of classified information", not as "while I was investigating Libby". The latter would be illegal, the former is just fine.

You might argue that discusssing the leak investigation is irrelevant, but Keith DeRose has already noted why it might indeed be relevant, and at any rate, irrelevance is not the same as illegality.

[Note: you've got to cut it out with the "leaving aside the issue of whether someone listed in Who's Who as a CIA agent is really undercover" business. Who's Who did not list Plame as a CIA agnet; Who's Who listed Plame as Wilson's wife. That Wilson was married to someone named Plame was not classified info. That "Wilson's wife" or "Plame" worked for the CIA was--but that info was never in Who's Who.]

It can't be that it's slander, because he says other people in the courtroom besides the prosecutor or jurors can say whatever they want. It's something about his role in the judicial process that prevents him from saying anything.

What I gathered from what he was saying wasn't just that he couldn't implicate anyone or accuse anyone of a crime. It was that couldn't talk about possible crimes a particular person might have committed unless he was delivering an indictment for that crime.

OK, if you're right about this Who's Who thing, then you need to tell that to the people who keep saying it. What I keep hearing is that her listing in Who's Who is evidence that she was not undercover. There's got to be more to this than simply that it lists her as happening to be married to him, or no one would think it could help make the case that she wasn't undercover. I also keep hearing that she drove to the CIA building to work there every day, which undercover agents do not do.

I'm also not sure why you're telling me to cut out something that as far as I know I've only even mentioned this once. A search of the blog for "Who's Who" turns up just this one instance. The way you worded it makes it sound as if this is some regular practice I've been engaging in.

OK, if you're right about this Who's Who thing, then you need to tell that to the people who keep saying it

If he's right about the Who's Who thing, then maybe you, Jeremy, should take note of your sources & not trust them any more.

Speaking of sources that haven't been completely accurate in the recent past, 60 Minutes, 60 Minutes did a story, "The Exposure Of Valerie Plame," which is largely about what a serious matter this was. The text is at:

http://www.cbsnews.com/stories/2005/10/28/60minutes/main994753.shtml

Suppose you're right that there wasn't enough information out there for someone to discover who she was, and I've just been listening to the wrong people. I have a good explanation of that. I haven't actually been paying much attention to this story at all. It's not the sort of thing I'm interested in. There are certain areas of politics that fascinate me, and I spend enough time on them that I'm just not drawn as much to things of this nature. But it's been hard to avoid, and I did learn in reading about things I do care about that Joseph Wilson has been lying through his teeth about what he learned in Niger. His report makes it clear that Saddam Hussein did try to approach Niger about something that they believe was a genuine attempt to get yellowcake from them. In other words, Saddam Hussein attempted to purchase uranium from Niger. That was the piece of information that Wilson has been claiming he debunked on his trip, and his trip in fact confirmed it. All he debunked is the speculation that Saddam was successful in purchasing it, but that's not what Bush was ever claiming.

Now when a media source starts out by saying that Joseph Wilson debunked the justification for war against Iraq, I stop trusting them. They don't know how to pay attention to well-established facts. So I'm not reading much on this issue already, and most of the mainstream media outlets begin all their stories about this with a flat-out falsehood that's been disproved handily. That's a partial explanation of why I haven't followed the details of what people have been saying about the Who's Who thing. The things I have seen on this have been so unreliable on something I pretty well know at this point that I just haven't cared to try to read what anyone is saying. What probably happened is that I misremembered something I read that was careful, or someone normally more careful abbreviated the argument below, and I just didn't get the whole thing and thought the point was that Who's Who actually listed her as working for the CIA.

Now that I've read Novak and others on this, I can see that I should have phrased what I said differently, but I'm not so sure it's as clear cut as simply saying that Who's Who didn't give any information that could have led someone to find out who she was. Wizbang takes the Who's Who information as part of a larger package of information that was out there that could have given someone enough understanding. Her marriage to him was known. Her maiden name was known. Her maiden name was also her cover name. That she worked at the CIA was known, though not widely known. Put these together, and it's reasonable to assume that her cover name is a cover name for secret work. So someone could have figured out everything they could discover from Novak's column.

Novak's column certainly made it overwhelmingly more likely that people who know, and that's bad. But he says he was told beforehand that she was an analyst, and he even talked to a CIA official about her beforehand, who made it sound as if she wouldn't be able to travel overseas anymore if it became known who she was, which isn't exactly saying that national security is at stake. So it's not clear to me that the Who's Who thing is irrelevant. Novak may actually be right that the entry in that makes enough information known, even if it doesn't make it widely known.

It can't be that it's slander, because he says other people in the courtroom besides the prosecutor or jurors can say whatever they want. It's something about his role in the judicial process that prevents him from saying anything.

That's why I said "something akin to slander". But then again, I'm not a lawyer, so I really don't know what I'm talking about here.

I'm also not sure why you're telling me to cut out something that as far as I know I've only even mentioned this once.

Sorry. I thought that this was the second time in short order that you said a comment like this, but it now seems likely that I read it once, and then came back to it a day later and read it again and thought that you said it twice. Mea Culpa.

As for why Who's Who seems to be such a big deal--I'm not really sure. Somewhere the idea got promulgated that it was known that Valerie was a known CIA agent (under either Wilson or Plame, depending on which story you want to go with), but that her other identity was not connected to her or the CIA. However, Who's Who, in listing her as both Plame and Wilson's wife connects the two identities, thus blowing her cover.

As far as I can tell, that story just doesn't wash. Valerie was not known to be working as an agent of the CIA under either identity, so connecting the two identities does nothing to blow her cover. To put it in other words, that Plame and Wilson are the same person was not the secret. The secret was that Plame/Wilson worked for the CIA.

As for the assertion that "That she worked at the CIA was known, though not widely known.", that idea seems to have come from the reports that Libby was just passing along info that was already being circulated. But, that is, of course, just what Libby is being indicted for lying about. That is to say, the "common knowledge" of Plame's covert status is based on believing Libby's account. Now if Libby is innocent, then in all likelyhood, no crime was committed and Plame was not covert. But if not...

We'll have to wait and see what Fitz has to say about how widely known her operative status was. This is one thing that he no doubt looked into (as there would be no original crime to investgate if there was no covert agent or classified info to leak). But I must say that, given that Fitz has been toiling away for two years on this case, it seems much more likley that there was some sort of actual leak somewhere, otherwise Fitz would have packed up and gone home after a week.

At any rate, the whole point of this was to keep you from continuing to assert something that was demonstrably false, namely that Plame was listed as a CIA agent in Who's Who. I know how much you hate it when other people don't get their facts right on things that have been conclusively demonstrated to be otherwise, so I figured that you'd want a head's up.

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