Patterico's Pontifications

2/7/2006

See-Dubya: A Very Brady Prosecution

Filed under: General — See Dubya @ 4:03 am



(By guest blogger See-Dubya)

While our host settles into his palatial new digs, I thought I would throw up a post about prosecutors’ responsibility. Over at NRO, Byron York is covering the Scooter Libby/Valerie Plame case, and he’s discovered that prosecutor Patrick Fitzgerald refuses to disclose some information that might help out Libby’s case. York links to a Newsweek piece which announces that Fitzgerald has found support for the claim that Plame was covert. Well, whoopee. I suppose we’ll get to see this proof? Not according to York:

Fitzgerald refused to say whether he knew if Plame had been an undercover agent during the five years preceding her exposure. Referring to a 1963 Supreme Court decision in Brady v. Maryland, which requires prosecutors to turn over evidence that might point toward the defendant’s innocence, Fitzgerald wrote, “We do not agree that if there were any documents indicating that Ms. Wilson did not act in an undercover capacity or did not act covertly in the five years prior to July 2003 (which we neither confirm nor deny) that any such documents would constitute Brady material in a case where Mr. Libby is not charged with a violation of statutes prohibiting the disclosure of classified information.”

Sloppy writing, Fitz. Do you “neither confirm nor deny” the fact that Plame was not covert, or that you have documents that indicate that fact? There are an awful lot of negatives and subjunctives in that sentence, but as I read it, Fitzgerald is saying “even if we had evidence that Plame was NOT a covert agent, we would not be required by Brady to turn it over to the defense, because Libby isn’t charged with leaking secrets.”

Well, I disagree. Libby is charged with making false statements under oath , an element of which is materiality. It has to matter. And in fact in Libby’s indictment, Fitzgerald listed whether or not Libby knew whether Plame’s status was classified as a matter material to the investigation–actually on several of the counts. Plame’s classified status goes to the materiality of Libby’s statement, and therefore may be exculpatory. Therefore the prosecution ought to turn over what it has about Plame’s status. If Fitz wants to claim that releasing the evidence about Plame would somehow compromise national security, I’d be sympathetic, but I don’t think he can hide behind Brady.

Furthermore…

Libby is also charged with perjury, stemming from this exchange:

Q: …If you did not understand the information about Wilson’s wife to have been classified and didn’t understand it when you heard it from Mr. Russert, why was it that you were so deliberate to make sure that you told other reporters were saying it and not assert it as something you knew?
A:…So I wanted to be clear they didn’t, they didn’t think it was me saying it. I didn’t know it was true and I wanted them to understand that.

Libby’s answering a question about whether he knew about Plame’s classified status. Is her status the “it” he refers to there? If I were Libby’s defense lawyer, that’s what I’d claim. Libby didn’t want to go on the record as officially confirming a fact (Plame’s employment) that a lot of reporters already knew.

There is quite a bit of evidence against Libby within the indictment, and the obstruction charge looks pretty tight. But the others hinge on whether or not Libby was trying to cover up Plame’s status to reporters. Fitzgerald will be required to prove materiality on counts two through five. If she wasn’t undercover, then it casts his statements (even if false) in a new light– a potentially mitigating or exculpatory one. And more importantly, it goes to Libby’s motive for perjury: if Plame was never undercover, why would Libby have lied about any of this?

–See Dubya

37 Responses to “See-Dubya: A Very Brady Prosecution”

  1. Why woudl there even be a special counsel if she wasn’t undercover?

    actus (ebc508)

  2. Bravo, actus. You’re half way there. If Fitzgerald can’t show Mrs Wilson was covert then what’s going on here?

    It’s the key issue. If she wasn’t covert, why, indeed doesn’t he simply say so, then fold his tent and go home?

    Black Jack (d8da01)

  3. A very persuasive article (by an attorney) which says that prosecutor Fitzgerald’s case is already toast has been published.

    Justice Frankfurter (2dcd84)

  4. “If Fitzgerald can’t show Mrs Wilson was covert then what’s going on here?

    It’s the key issue. ”

    Not so much for the perjury and other charges. But I do wonder why an investigation was started in the first place if she wasn’t covert. Why did the attorney general appoint Fitzgerald? Doesn’t he need reason to believe a law has been violated? If there was no covertness, that wouldnt’ be there.

    actus (ebc508)

  5. Just an ignorant layman’s question. Could this effectively be a form of entrapment? If there is no underlying case but the prosecutor feels the need to charge somebody with something, is it lawful to keep picking at people’s testimony until he uncovers some purported inconsistency and then declare the offender made a false statement?

    jeff (259251)

  6. No. Entrapment is extremely limited, and requires active solicitation by law enforcement.

    If you call an undercover cop up and ask to buy drugs, and he agrees to sell them to you, then actually does until you get enough for a PWID felony, that ain’t entrapment.

    Likewise, he can actually affirmatively offer to sell the drugs to you, as long as the prosecution can then show that you already had a criminal propensity.

    The Angry Clam (fa7fff)

  7. Just a point – Clarice Feldman over at Just One Minute pointed out the following (and I am quoting her):

    In The Politics of Truth, former ambassador Joseph Wilson writes that he and his future wife both returned from overseas assignments in June 1997. Neither spouse, a reading of the book indicates, was again stationed overseas. They appear to have remained in Washington, D.C., where they married and became parents of twins. (Related story: Bush waits on Rove)

    Six years later, in July 2003, the name of the CIA officer — Valerie Plame — was revealed by columnist Robert Novak.

    The column’s date is important because the law against unmasking the identities of U.S. spies says a “covert agent” must have been on an overseas assignment “within the last five years.” The assignment also must be long-term, not a short trip or temporary post, two experts on the law say. Wilson’s book makes numerous references to the couple’s life in Washington over the six years up to July 2003.

    This quote is from Wilson’s own book. What it points out is that Val was no ever overseas in the previous 5 years. Therefore, not “covert” by definition.

    Specter (466680)

  8. “The column’s date is important because the law against unmasking the identities of U.S. spies says a “covert agent” must have been on an overseas assignment “within the last five years.” ”

    I wonder why he didn’t publish in his book that his wife was on a covert overseas assignment.

    actus (ebc508)

  9. He didn’t…but the point is that they returned to the states in 1997. More than 5 years passed. Simple math there actus.

    Specter (466680)

  10. Alright, entrapment was not the right word. But, it seems like forced testimony looking for a crime, a fishing expedition. Or even worse, just continuing the case until some inconsistency and then declaring victory in the perjury charge.

    jeff (48f7a7)

  11. “He didn’t…but the point is that they returned to the states in 1997. More than 5 years passed. Simple math there actus.”

    Sure. Assuming that had she gone on an overseas covert assignment, it would be published in a book.

    actus (ebc508)

  12. actus,

    rather than recreate the wheel here, you should read through the posts at Just One Minute. You might get some perspective as to how far behind you are in this debate.

    Specter (466680)

  13. actus said:
    Not so much for the perjury and other charges. But I do wonder why an investigation was started in the first place if she wasn’t covert. Why did the attorney general appoint Fitzgerald? Doesn’t he need reason to believe a law has been violated? If there was no covertness, that wouldnt’ be there.

    The reason is simple – it is part of the “Scandal du Jour” brought to you by the Democratic Party and their MSM mouthpieces.

    Specter (466680)

  14. “rather than recreate the wheel here, you should read through the posts at Just One Minute. You might get some perspective as to how far behind you are in this debate.”

    Undoubtedly. I’m apparently not aware as to why a covert assignment wasn’t put into a book. And not leaping to conclusions from the failure to mention something supposedly covert.

    “The reason is simple – it is part of the “Scandal du Jour” brought to you by the Democratic Party and their MSM mouthpieces.”

    Then why did the Bush administration appoint an investigation? They have no agency here? Its democrats that run the AG’s office?

    actus (ebc508)

  15. Say what?

    actus, are you suffering from memory loss? Don’t you remember the weeks and weeks of angry Democrat caterwauling in Congress, the editorials in the NY Times, the TV talking heads and MSM scribblers, all singing from the same hymnal?

    Claim after preposterous claim the Bush Administration “outed” a covert CIA agent. How damaging it was to national security, and how the future of the Union depended on finding the dirty rotten dog who done it?

    How it was all a White House plot to “discredit” Joe Wilson, the Nigerian “whistleblower?” You don’t remember any of this?

    Black Jack (d8da01)

  16. “………
    How it was all a White House plot to “discredit” Joe Wilson, the Nigerian “whistleblower?” You don’t remember any of this? ”

    Selective memory loss — a common disease among certain members of the left side. Generally incurable, certainly not responsive to logic, common sense, intelligence, etc.

    Trying to talk sense to a liberal is similar to trying to understand the ravings of the mad mullahs in Iran. Impossible.

    Bill M (4f48a9)

  17. “actus, are you suffering from memory loss? Don’t you remember the weeks and weeks of angry Democrat caterwauling in Congress, the editorials in the NY Times, the TV talking heads and MSM scribblers, all singing from the same hymnal?”

    Why did the bush administration appoint a prosecutor if she wasn’t covert?

    actus (3acc4d)

  18. There was an independent counsel appointed because the CIA asked for DOJ to get to the bottom of the leak and John Ashcroft was joined at the hip politically with Karl Rove, then considered a likely target.

    He could have said no. The “caterwauling” wasn’t that extraordinary.

    Ashcroft paid Rove more than $740,000 consulting fees for three Senate campaigns.

    steve (539a32)

  19. Clearly, the Bush Justice Department felt there was sufficient evidence to at least investigate whether a crime had been committed.

    The subsequent investigation resulted in indictments against one of Bush’s own cronies. They were caught lying.

    Those are the facts, which you geniuses on the right are so adept at ignoring (i.e., blaming the media for the investigation? What a laugh.) That’s the kind of delusional, prejudicial thinking that will keep people from taking you seriously, while it also keeps you pinned to the lunatic fringe.

    jmaharry (74c3ec)

  20. I think the investigation was brought to silence the criticism from the left about “outing” a CIA operative. I also think there was some question about whether Plame was, in fact, still under cover. There have been numerous claims to the contrary, but until a special prosecutor declared she was not covert, I doubt any Democrat would have believed it. Or am I wrong that Democrats would not have believed it as a way to smear President Bush’s administration?

    sharon (fecb65)

  21. jmaharry–that’s the kind of delusional, prejudicial thinking that keeps us in the White House in control of both houses of Congress!

    See Dubya (5073f6)

  22. First of all, special prosecutors usually come from outside the Justice Department. Fitzgerald was (and is) a U.S. Attorney.

    Ashcroft resisted doing even that for several months. It’s just as possible that Ashcroft handed the investigation over to a special counsel in order to bury it. A fourth DOJ proseuctor had been assigned to the case before Fitzgerald – and the case was building momentum.

    At the very least, it slowed the investigation down during the 2004 campaign, as Fitz started over with a whole new team.

    steve (539a32)

  23. 21. Actually, I’d say it’s Karl Rove’s relentlessly inventive and cynical thinking that keeps you in charge of everything down to dog catcher.

    jmaharry (74c3ec)

  24. But…unfortunately for you Harry, we are in charge. BWAHAHAHAHAHAHA

    Specter (466680)

  25. I had a friend who was a navy lawyer. He said that a great number of prosecutions are for perjery while being questioned and not the reason for the qustioning.

    The rational for the charges is that you should never lie and that prosecution is required to maintain the integrity of the justice system.

    A guilty verdict is good for five uears on each count.

    davod (5fdaa2)

  26. Re. 24: Um, that was my point. You are in charge — of Iraq, a corrupt administration, a corrupt congress, the bungled Katrina disaster response, eroded freedoms, secret torture prisons, Abu Graib abuses, and all the rest.

    What does “bwahahah..”. mean? Is that some kind of victory cry shared by you paranoid conservative cultists?

    jmaharry (74c3ec)

  27. Sure. Assuming that had she gone on an overseas covert assignment, it would be published in a book.

    Nice straw man argument. They’re not claiming a covert assignment would be in a book.

    Gerald A (add20f)

  28. Assuming Valerie Plame stayed home and took care of her newborn twins instead of going off on some imaginary “covert assignment” overseas, any fool could make up any sort of tall tale for any reason under the sun.

    He could then put it in a book, comment on a web site, or fold it 5 ways and put it where the moon don’t shine.

    Black Jack (d8da01)

  29. “They’re not claiming a covert assignment would be in a book.”

    But they’re claiming she wasn’t cover overseas for several years.

    actus (3acc4d)

  30. But they’re claiming she wasn’t cover overseas for several years.

    Right. But they’re argument isn’t that the book says she wasn’t under cover. Straw man argument.

    Gerald A (fe1f90)

  31. But they’re claiming she wasn’t cover overseas for several years.

    I mean their argument isn’t that the book doesn’t say she was undercover. Straw man argument.

    Gerald A (fe1f90)

  32. To get back to the original point (and perhaps clarify things for those of us without the Esq. after our names [or, is that Esq. thing an anachronism?]) let’s assume two things.
    1. Libby committed perjury, not telling the truth about what journalist told him when;
    and,
    2. Plame did not have covert status.

    So, in this instance, there would be no ‘materiality’ to Libby’s misstatement of fact. That is, he was untruthful, but what he lied about wasn’t vital, or germane to the essential matter or nature of the case (a gov official outed a spy). We have a scale of perjury infractions, from the benign to the felonious.

    Is that assumption right? Does it mean his felony charges are reduced to misdemeanors? Thrownn out? Is a jury of his peers supposed to figure this out?

    Sounds to me that Scooter did lie to the Grand Jury. However, there is so much confusion surrounding Plame that Fitz will not be able to prove the status of her status (or, that he will even attempt to prove it.)

    After my tedious questions, this is where you left off. What do you think will happen then?

    jmaharry (3991f5)

  33. With apologies in advance to Patterico – I intend to use quotes from Tom Maguire over at Just One Minute (I am not trying to drive traffic that way – as you know I like reading and participating here)

    Let’s review for a minute. As a result of Fitz’s investigation into the “outing” or Plame in retaliation for Joe Wilson’s op-ed piece, Scooter Libby was charged with Perjury and Obstruction of Justice. If you read through the document, it is clear that the charges are connected to this conspiracy to out Plame. In the indictment Fitz claimed this (emphasis mine):

    Joseph Wilson was married to Valerie Plame Wilson (“Valerie Wilson”). At all relevant times from January 1, 2002 through July 2003, Valerie Wilson was employed by the CIA, and her employment status was classified. Prior to July 14, 2003, Valerie Wilson’s affiliation with the CIA was not common knowledge outside the intelligence community. SOURCE: Libby Indictment

    Well….According to Andrea Mitchell many reporters knew. But that is another part of the story.

    On January 31, 2006, the Libby legal team requested discovery materials from Fitz and crew.

    In his reply, Fitz says he has no “documents” to back up the fact that he claimed Plame’s status was classified (SOURCE: Exhibit B in this document; emphasis mine):

    Request D: A formal assessment has not been done of the damage caused by the disclosure of Valerie Wilson’s status as a CIA employee. In any event, we would not view an assessment of the damage caused by the disclosure as relevant to the issue of whether or not Mr. Libby intentionally lied when he made the statements and gave the grand jury testimony which the grand jury alleged was false.

    Request E: 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.” We will review all documents we received from the CIA for any discussion concerning 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. Although we do not conceed that all such documents in our possession are required to be produced by Rule 16, if we locate any such documents, we will either produce them to you or seek an appropriate protective order pursuant to either Rule 16 or CIPA. In our view, documentation regarding Ms. Wilson’s then classified job status is not relevant to the issue of whether or not Mr. Libby intentionally lied when he made the statements and gave the grand jury testimony that the grand jury alleged was false. That Ms. Wilson’s employment status was classified may generally be relevant for the limited purpose of placing the investigation in context does not mean that all documents discussing the fact become discoverable in a perjury prosecution.

    How in the world could Fitz now claim that he might or might not have documents that show Plame’s employment was classified? He is the one who stated it within the indictment and linked the Obstruction of Justice charge to it.

    The thing to pay attention to here is the fact that in his response to both requests, Fitz links his waffling on turning over documents to the Perjury count in the indictment. What he leaves out is the fact that Libby, in Count One, has also been charged with Obstruction of Justice. These documents, especially since Fitz specifically delineated the alleged “classified” nature of Plame’s employment in Count One (see above), become fair game for discovery. Either Fitz will lose on this, or he does not plan on pursuing the Obstruction of Justice charge.

    Apparently there is more to the story though. According to an opinion penned by Judge Tatel on this information (SOURCE: Excerpts from Opinion; emphasis mine):

    As to the leaks’ harmfulness, although the record omits specifics about Plame’s work, it appears to confirm, as alleged in the public record and reported in the press, that she worked for the CIA in some unusual capacity relating to counterproliferation. Addressing deficiencies of proof regarding the Intelligence Identities Protection Act, the special counsel refers to Plame as “a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years “–representations I trust the special counsel would not make without support.

    But from what we can find, the CIA referral did not allege that IIPA violations had been made (SOURCE: Letter to Conyers; emphasis mine):

    By letter dated 30 July 2003, the CIA reported to the Criminal Division of DoJ a possible violation of criminal law concerning the unauthorized disclosure of classified information.

    So where is the request to look into possible IIPA violations? Where is the documentation from CIA that says that Plame was covert. All of this goes to the Obstruction of Justice charges.

    Tom Maguire at Just One Minute states:

    As to the CIA “making specific efforts to conceal her identity”, well, no doubt they were. However, allowing her husband to send up a red flare for the world’s spychasers – I do consulting work for the CIA, but please don’t look at my wife when you run my background – was pretty sloppy.

    And the CIA press office belly-flopped with Bob Novak, who published despite their exhortations. When the CIA wanted the WaPo to keep quiet on the names of the European countries hosting the secret CIA prisons, the WaPo complied – after the big guns were brought in).

    When the Administration wanted to quash the NSA warrantless eavesdropping story, the NY Times sat on it for a year – after the big guns were brought in.

    But after Bill Harlow of the CIA press office asked Bob Novak not to publish, there was no follow-up – no call from Tenet to Novak, no call from Tenet to Novak’s publisher or editor. Why not? Why so shy at the CIA about protecting this critical secret?

    So maybe the Obstruction charge is not so solid.

    Specter (466680)

  34. There is a very simple way out of all of this.. Let President Bush come right out and say she was not undercover and dismiss the charges. Whats wrong with that? Is he afraid of the bad press he might get? But I thought he was a man of conviction?? Let the CIA say she was not undercover. Let Valorie say she was not undercover..But they havent done that..Wonder why???. Must all have some anti-American ( Re: “Anti Bush” since he IS the state), agenda.

    Face if folks. Most of you dont give a damn that a WMD program aimed at protecting the US was destroyed only that someone dared leak a bit of truth about this administrations’ false claims leading to war.. Thats the real concern, isnt it?

    Let see 3000 killed in the WTC center attack while Bush slept, 2000+ soldiers killed 18,000 wounded and tens of thousands of Iraqis dead and injured.Great record!! Good going Georgie!!
    No WMDs?? Hell no problem they all moved to Syria. Lets laugh as the President makes a parody of that… No Iraqi connection to Al Quida No Problem. Saudi Arabia a major sponsor of terrorism? Close your eyes and overlook their connection to the Bush family.. How about those wonderful elections and freedom breaking out everywhere..like Egypt and Saudi Arabia and Palestinian areas and Iran.. all due to the magnificance of King Bush..

    I can tolerate differences of opinion but the blatent hypocrisy of the Bushies is astounding and really gets to me..You and I know DAMN WELL that if Clinton had done this exact same thing you would be furious and calling for his impeachment and imprisonment.

    But the rule is: Bush first. Country second. Wars and killing and God Bless America. Support our troops and see them die… never question why. Massive deficts. No problem they will dissappear along with our dependency on foreign oil at some distant point in the future when Bush is in his Presidential library finishing My Pet Goat…the only book there!
    Alice in Wonderland and “1984” combined could not beat what is going on in the good old God fearing US of A!!! God Bless America..(Lord knows we need it)

    Charlie (8ea405)

  35. And Chuckles,

    What exactly does this convoluted post have to do with the Plame investigation, which is what this thread is about?

    Huh? Chuckles?

    Specter (466680)

  36. Specter

    Arlin?

    The Gunship, Puff the Magic Dragon?

    The movie Specter?

    A ghost or does that mean spook like Boo Man ‘Tribune?’

    anonymous (61901d)

  37. While troubling things are all about, especially in the Middle-east, what do you make of the civil suit that Plame and Wilson have filed? I am all for intellectually honest exposure of objective truth with sound and wise commentary. Is it possible that more light than smoke will be able to come from this? Will this open Plame and Wison to more investigation as well??

    Of course, if Israel and Syria tangle and WMD’s with “Made in Iraq” are used or found that will put a new wrinkle into things, and if Iran jumps in that will force a few issues as well.*

    *Even if this is the case, I am sure you will find claims that the “Pro-Jewish Neocons forced Israel to return a favor by going in to Syria and ‘finding’ planted evidence”. It was those “same Neocons that manipulated Hamas and Hezbollah (sp) into attacking Israel that gave the justification”. I wish this is just cynicism on my part, and not a realistic possibility.

    MD in Philly (3d3f72)


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