Patterico's Pontifications

7/4/2007

Why Fitzgerald Didn’t Stop in His Tracks Upon Learning Armitage Leaked

Filed under: General — Patterico @ 1:01 am



Orin Kerr responds to the argument that Fitzgerald should have stopped his investigation in its tracks upon learning Armitage had leaked Valerie Plame’s name and employment status:

I don’t find this argument persuasive. To see why, imagine yourself in Fitzgerald’s shoes. Here are the relevant facts as you know them (reconstructed as best I can — please let me know if these facts are misleading or wrong and I’ll correct them). You’ve been appointed a special prosecutor to investigate intentional leaks to the media of the covert identity of a CIA agent. Early on in the investigation, you learn that one high-level political official has admitted that he leaked Plame’s identity to one reporter; he claims that it was an accident, as he didn’t realize the agent’s status was covert. You also know that a lot of other reporters were leaked the same information, but you don’t know who was behind those other leaks. The reporters won’t talk: They insist on going to jail rather than revealing their sources.

If you were Fitzgerald, would you close up shop at that point? Would you conclude without even speaking to other potential witnesses that the one high-level official was in fact responsible for all the leaks, and that he acted accidentally and entirely on his own? Or would you at least want to dig deeper to see if the story checks out?

In that setting, I don’t understand what was so overzealous about wanting to talk to Libby. An experienced prosecutor is going to wonder if the guy who rushes forward and claims the leaks were an accident is telling the truth. Maybe he is. But you don’t want to close up shop and then read in someone’s memoirs ten years from now that the official (Armitage) was the fall guy who came up with the “accident” story to cover up something — and that he got away with it because the naive prosecutor bought the story and closed the investigation without even verifying the facts. Or maybe someone was using Armitage as an unknowing intermediary, making his story accurate from his perspective but only part of the picture. Or maybe there were other leakers — either more leakers to the one reporter (Novak) who reported to the public about Plame, or other leakers to the other reporters. None of these are certainties, of course. But it is really so unreasonable to look into them?

My only quibble with this is that I don’t necessarily accept the assumption of Plame’s “covert” status. It has been reported that she was covert, but this area still seems murky to me.

But I fully agree with Prof. Kerr on the idea that it would have been irresponsible for Fitzgerald to simply abandon the investigation upon hearing from one person who said he had leaked. Indeed, I have made this exact argument before:

Another point many of you seem to be making: Fitzgerald knew that Armitage was the original leaker. Therefore, the second he learned that, he should have brought his investigation to a grinding halt — immediately.

I don’t follow this logic either. How is Fitzgerald supposed to know that nobody else was involved in any crimes, just because Armitage says he was the leaker? If Armitage says he did this on his own, must Fitzgerald take Armitage’s word for it?

As I said in this post:

I don’t understand why people fault Fitzgerald for being thorough. Libby was prosecuted in part for lies that he told law enforcement before Fitzgerald was even appointed. According to the partisan Republicans, Fitzgerald should have simply overlooked those lies, and/or not dug deeper. I’m not convinced by this argument.

Usually, when people lie, there’s a reason. Libby told lies before Fitzgerald was appointed, and regardless of whether someone else was taking the fall, Fitzgerald was justified in investigating why Libby lied, to see if there were any higher-level officials behind the leak.

And were there? We still don’t know. But President Bush’s highly unusual action in commuting Libby’s sentence before he served even one day in custody has already fueled speculation that Libby is being paid off for his loyalty. The cynics note that keeping Libby’s conviction in place insulates him from being questioned further about the possible involvement of higher-level officials.

All of this speculation may not be true, but it’s going to hurt Republicans going into the 2008 election regardless. And Republicans have one person to blame for that — and it isn’t Pat Fitzgerald. It’s Scooter Libby. If he hadn’t lied and obstructed justice, we wouldn’t be in this mess.

40 Responses to “Why Fitzgerald Didn’t Stop in His Tracks Upon Learning Armitage Leaked”

  1. Armitage did not rush forward. He took his sweet time in copping to the leak.

    There’s no way Fitz could have thought Armitage was a fall guy for Bush. Armitage was Powell’s man; he wasn’t part of the Bush or Cheney camps.

    Daryl Herbert (4ecd4c)

  2. But did Libbey lie?

    Davod (3392f5)

  3. The problem was, he prosecuted Libby, who didn’t leak (and wasn’t accused of leaking) but didn’t prosecute Armitage (who did leak), in an investigation in which he was charged with discovering and prosecuting the leaker.

    gahrie (de5a83)

  4. Patrick – What were the lies before Fitzgerald was appointed?

    daleyrocks (5a4736)

  5. “as he didn’t realize the agent’s status was covert”

    She wasn’t, end of story! What a Waste of Bandwidth! This was nuttin but a “Witch Hunt!”

    End of story!

    PS: Question for the author: Why was an investigation even started when it was established the Valarie wasn’t Covert??

    mike (f9cedd)

  6. You set up a straw man argument, Patterico. What most people had a problem with was not Fitzgerald being thorough, but being very selectively thorough. It appears that if a line of investigation might have produced evidence that would weaken his case, he avoided it at all costs.

    It’s obvious to most people that early on Fizgerald drank the koolaid and fixated on a White House conspiracy. And having done that, he attacked it the same way he would attack any criminal conspiracy – he applied pressure to an underling in an attempt to flip him and get him to turn evidence against his boss.

    There are a number of current or former prosecutors on the Right side of the blogosphere, and by and large they all defend Fitzgerald. In particular, Andy McCarthy has been a staunch defender of him as a former colleague. And this isn’t surprising. But a number of these have said something to the effect of “you didn’t complain when the target was a Democrat”. And there’s some truth to that. But I think there’s some truth also to the idea that the reason we didn’t complain was we didn’t see it at this level of detail. And as we’ve seen things at an unprecedented level of detail, we see things that we don’t like. The prosecutors and former prosecutors club looks and sees nothing out of the ordinary, and therefore thinks that the opposition must be partisan. Whereas for me, I look at some of the things done and am not comfortable having them done to anyone.

    For example, the FBI doesn’t record its interviews with suspects. The reason why? It was explained that if they do, then that’s evidence that has to be turned over and can be played at trial, and when juries hear the FBI techniques they tend not to convict. That makes me VERY uncomfortable.

    So in this case, we had an FBI interview that wasn’t recorded, but was only memorialized in notes. And, shockingly, somehow during the investigation the Special Counsel’s office “lost” the notes that were the basis of some of the charges. That simply doesn’t pass the smell test, because there’s simply no way that they wouldn’t have made copies of them. Incompetence on that level doesn’t exist, even in government offices. This was obvious misconduct, but this prosecutor knew that with this Judge he could get away with it. And it helped his case, so he did.

    Did Libby commit perjury and obstruction of justice? I don’t know, and neither do you. But a jury said he did, and we have to accept that. And I’m OK with that. But remember, a jury also said that OJ wasn’t a murderer. Juries aren’t perfect. And that’s why judges are supposed to ensure that the defendant gets a fair trial.

    But this judge said in a number of his rulings that they were to provide the Government with a fair trial. This shows a fundamental misunderstanding of the way in which the system is supposed to work, and as it was displayed by a Federal Judge, that makes me very uncomfortable as well. As a prosecutor I’m sure you like that. As a defendant, it should scare the heck out of you.

    Skip (e63117)

  7. I don’t see this hurting the Republicans at all. By next year, this will be old news. And with Bill’s background, it will be a delicate area for Hillary (or her friends) to delve into.

    Expect to see democratic hearings on this “abuse of power” soon.

    ManlyDad (d62cf6)

  8. I agree, ManlyDad. Hillary would be doing her campaign harm if she harps on this issue.

    Agatha (fec594)

  9. While I’m hoping to see a response on the other Libby thread, I’ll add some comments here:

    “fueled speculation that Libby is being paid off for his loyalty”- Hmmm, as if President Bush “rewarding” someone for loyalty is a new thing (ala McDougal), or worse than motivation out of financial bribery (Rich)
    – not that I really like the “but they did it first” reasoning to excuse an action, but I will use that reasoning when otherwise it is made to look like a new level of low has been reached, when it hasn’t.

    “Libby told lies before Fitzgerald was appointed”- I’ll second Skip’s comments above. By resting on “the jury said so, so that proves it” argument, OJ is innocent. When you lose a case, do you always say, “I guess I was wrong, he’s innocent”?

    MD in Philly (3d3f72)

  10. Patterico, Fitzgerald was appointed becasue of the Novak article. Where else was the supposed ststus of Ms. Plame revealed other then Novak? Armitrage admitted he was the source for Novak and Novak has confirmed that. What tree fell in the forest that cause Mr. Fizgerald to look elsewhere?

    Kent schmidt (d382e5)

  11. All of this speculation may not be true, but it’s going to hurt Republicans going into the 2008 election regardless. And Republicans have one person to blame for that — and it isn’t Pat Fitzgerald. It’s Scooter Libby. If he hadn’t lied and obstructed justice, we wouldn’t be in this mess.

    Oh, balderdash. No one outside of the left wing will care much about “Libby”, just like only loonies brought up Iran-Contra when Reagan died. Further, the likely candidate (Clinton) really isn’t the best person to keep bringing it up. Her brother took bribes, for God’s sake, to get drug dealers access to Bill for pardons. She for one will be willing to let it die.

    No, the problem isn’t going to be Bush’s clemency. It’s going to be Bush himself, and his record. The Republican candidate is going to have to pretty much repudiate the sitting president to have a chance. Not because of this little thing, but because of the mishandled war, the general incompetence and bumbling bewilderment, the bloated spending, and the religiosity of the Bush years.

    Bush has singlehandedly managed to sunder the coalition Reagan built, and it’s going to be difficult for Rudy or Fred to put it back together.

    “Libby” is a footnote.

    Kevin Murphy (0b2493)

  12. The enemy of your enemy is your friend? Not so fast!

    I have read Patterico’s Pontifications frequently (although I have been prevented from posting on his web site) and have found myself in agreement with much of his commentary. Perhaps his most endearing feature is puncturing the pretensions of the LA Times. That, in the beginning, was his main hobbyhorse.

    But he has grown. And he is a prosecutor, and it seems that there is a clan loyalty among prosecutors. So he defends the indefensible: he defends the gross injustice done to Scooter Libby by rogue prosecutor Patrick Fitzgerald.

    Once someone is given unlimited money and power, as Fitzgerald was given, it’s part of human nature to justify your office. I vaguely remember one special prosecutor who folded up shop with no indictments or convictions, but for the life of me I can’t name him or what he was tasked to do.

    But Fitzgerald is not one of that rare and self-effacing breed. He needed to bring in at least one head to mount on his wall so he went hunting. Once he found out that Libby did not reveal Plame’s identity to the press and that her identity as a secret agent was not a secret – the proximate reason for the investigation – he simply could not say “case closed.” And he found and stuck up as his trophy Scooter Libby, all the while hinting at deeper and more sinister conspiracies.

    Well, that’s simply dishonest. We have been instructed in the harm that ordinary prosecutors can do in the example of Mike Nifong as he attempted to railroad members of the Duke Lacrosse team for a crime that wasn’t committed. In Fitzgerald we have an example of a prosecutor who, having found out that the “outing” of Valerie Plame was not a crime and the “outer” was not Libby, decide he could prosecute Libby anyway ostensibly committing perjury with the objective of obstructing justice.

    I defy anyone, including Prosecutor Frey, to tell us what investigation has been obstructed and what crime has been concealed.

    Anyone?

    Moneyrunner (d5b4e1)

  13. An aside, of sorts-

    A few years ago some were talking about the Democrat party self-destructing; now there is apparent danger that the Repubs will do it first. In addition, the number of reasons given is almost the same as the number of people giving an opinion.

    My opinion of miscalculations by the Bush Administration:
    1. He believed he could work together with the Dems in DC like he did with the Dems in Texas. This resulted in his keeping too many Clinton appointees in the executive branch, trying to do bipartisan legislation like “No Child Left Behind” which bought him criticism from all sides.

    2. He was not aggressive enough in asserting the facts and his reasoning behind policies, etc.
    For example, the whole Wilson thing. At first sighting summon the top several people in the CIA to his office and ask:
    – who is this guy?
    – what qualifications did he have for the assignment?
    – where did the assignment come from, and how did this guy get picked?
    – what details are known of his investigation?
    – what conditions of secrecy/disclosure did he agree to with the assignment, did he violate them with his editorial?
    – analysis of how his editorial was/was not supported by the “facts” he found and other intelligence sources
    – hire Fitzgerald/Patterico/Guiliani or some other tough and ruthless prosector to be in on the questioning and make the CIA folks wish they were water-boarded instead
    – document it all, give the CIA and Wilson 72 hours to make it all right or the President goes on national Television with opening and closing statements accompanied by said prosecutor with a Power Point presentation, also posted on the Web, documenting all of the nonsense

    The President thought such issues could be handled responsibly by appropriate staff and agency officials- after all, in the baseball world people who don’t perform up to the GM’s expectations are fired or traded, shouldn’t the President of the US expect nothing less?

    Likewise, he should have done this with WOT and Iraq as often as necessary.
    – Show a montage of quotes from the Clinton administration on Saddam and his WMD’s
    – show clips of his own speech discussing how long and difficult the WOT will be every time people “he said it would be easy”
    etc., etc.

    3. He is out of touch with the majority re border security and immigration

    4. The Repubs as a whole have become divided not because of the Pres., but because of Sen. McCain and others with him regarding judicial appointees, the immigration bill, and other such “maverick” actions, including anti-Iraq critics

    5. Repub disgust with Trent Lott and others who communicate “they know better” and the public should shut up and do what they’re told

    MD in Philly (3d3f72)

  14. A few points to clear up:

    First, the leak investigation predated Fitzgerald’s appointment, and it was initiated by a CIA referral regarding the leak of an agent’s identity which was classified. Such referrals are not limited — and it would be meaningless even if the CIA suggested limitations — to the Novak leak. Anyone involved in the leaking of classified information would be a subject of the investigation. So, the fact that Armitage was already ID’d at the point Fitzgerald took over does not end the inquiry, especially since the agents knew that information about Plame was being passed by more than one official to more than one reporter.

    BUT — here is where I disagree with Prof. Kerr and Patterico:

    Even before Fitzgerald was appointed, the DOJ section heading up the investigation (maybe Public Integrity), should have FORCED the CIA to explicitly detail how it was that Plame’s status at the CIA conformed to the definition of “covert” provided by Congress in the statute.

    Following his appointment, Fitzgerald should have done the same thing.

    The investigation of the factual matters cannot be divorced from the legal elements of the crime for which the subjects are being investigated.

    If the CIA could not establish FACTUALLY that Plame was “covert” as that term was defined by Congress — and not as the CIA might have wanted it defined — then there was no basis for a IIPA charge and the investigation should have been shut down.

    To continue digging for facts to establish a crime that couldn’t be established because the “victim” didn’t qualify for protection under the Act was an abuse of prosecutorial discretion.

    wls (077d0d)

  15. wls,

    You know the federal laws better than I do. Plame’s status was unquestionably classified, if not covert. Wouldn’t a disclosure of classified information provide a basis for investigation?

    Patterico (2a65a5)

  16. Patterico — that question requires a “Yes, but…”

    If “leaking classified information” was the basis for the initiation and maintenance of a criminal investigation, every prosecutor employed by the federal government better be shifted to that section of DOJ.

    Leaks of classified information FLOW out of every office in DC.

    The CIA itself has been a huge leaker during this Administration, as have both sides of Capitol Hill.

    If that had been the ONLY basis for the referral, it wouldn’t have been accepted by DOJ.

    The only reason it was accepted by DOJ was due to the IIAP issue.

    It was a mistake based on political cowardice for DOJ to not have forced the CIA to establish factually at the outset that Plame fit within the definition of covert. The DOJ officials didn’t want to withstand the media and Dem. firestorm that would have ensued if they didn’t pursue and investigation of “outing” a CIA operative.

    What Fitzgerald filed in advance of the Libby sentencing on that question made me laugh — and frankly caused me to lose respect for the position he staked out in this case. He filed nothing more than a CIA “wish” that she be considered generically “covert” and not a definition of “covert” that fit within the statute. If that’s all he had, he should have said nothing. But he wanted the 30 month sentence, so he tossed out the red meat to fan the flames when he knew he didn’t have the real facts necessary to make the case.

    If she wasn’t covert under the statute, then she wasn’t covert for purposes of the case, and he should have left it at that.

    wls (077d0d)

  17. Thank you wls for your clarifying statements. For myself the point you made about the investigation beginning before Fitzgerald was appointed (and some of the issues with Libby occurred in that period) was clear evidence supporting the continuation of the probe.

    I appreciate your objection. You do know federal law better than I do to, but I watched Toensig’s testimony and have no reason to doubt her claims and reasoning that plame was not protected by the statutes in question.

    Besides, I have no reason to believe the CIA was serious about protecting the cover of anyone who drove in and out of Langley every day for years. Ms. Plame did herself a great disservice when on the stand in the Congressional hearing she stated there was no concern her cover would be blown because “we know how to detect when we’re being followed and things like that”*. Yeah, and soldiers aren’t afraid of being shot because they know how to duck when shot at.

    Furthermore, if the CIA was so darn concerned over secrecy they should have reprimanded Wilson for going public on his part of a CIA investigation as well as investigate leaks that blew the cover for a small airline that was a front for CIA operations, etc., etc.

    *Of course, maybe Ms. Plame actually entered Langley through some secret and unobserved manner which cannot be divulged. In which case, all public testimony, investigation, and records really don’t count for a hill of beans anyway if the true facts are buried under the need for secrecy.

    MD in Philly (3d3f72)

  18. wls,

    Whoa. So leaking classified information by itself isn’t a crime that the DoJ feels is worth its time to prosecute??

    I will accept your assertion that it’s common — but there are leaks and there are leaks. More significant ones, I would have thought, are worth investigating. In that category I would place leaks like the leak of the SWIFT counterterror program, and disclosing the classified status of a CIA agent working on counterterror issues.

    I’m shocked that DoJ would consider such leaks to be so trivial as not to be worth their time.

    Patterico (2a65a5)

  19. MD in Philly,

    You honestly believe it’s OK to divulge the name of anyone working at Langley, because they drive into Langley???

    Really???

    Patterico (2a65a5)

  20. The heart of the problem:

    Usually, when people lie, there’s a reason. Libby told lies before Fitzgerald was appointed, and regardless of whether someone else was taking the fall, Fitzgerald was justified in investigating why Libby lied, to see if there were any higher-level officials behind the leak

    Wrong. Libby made statements inconsistent with subsequently discovered facts before Fitzgerald was appointed. A prosecutor should only investigate why someone lied, though, after determining that someone lied. (Kinda like, oh, I don’t know, only prosecuting a defendant after determining that an actual crime has been committed.) Maybe I blinked. It’s been known. But I’m stll looking for the evidence that shows beyond even an over-credulous reasonable doubt that Libby’s inconsistencies were knowingly false. Because “Well, they could have been” is no kind of proof that I could accept as a juror.

    Those who could, though, should ask themselves why Tim Russert’s multiple inconsistencies weren’t reason enough for an indictment.

    As for the commutation — okay, I’ll concede that I might well have been incensed had the shoe been on the Clinton foot. On the other hand, I hope I’d have had the good grace to stifle, given that the judge seems awfully eager that the (not a danger to the community) convict be made to serve time before it’s been finally determined whether the (not a danger to the community) convict should serve time. Remember, Libby’s sentence was predicated at least in part on the nature of his crime — “outing” a covert operative. –Oh, wait, that’s not what he was convicted of. Seems to me if a certain judge doesn’t ship a certain convict’s ass off to jail before a certainly improper sentence is certainly overturned, said convict is going to escape the certain punishment the judge is certain he deserves. (“Excuse me, your honor, when does the next train leave? Because I’m sensing a railroad here…”)

    Submitted by a non-lawyer. Grade accordingly.

    porkopolitan (c9ae6a)

  21. Wrong. Libby made statements inconsistent with subsequently discovered facts before Fitzgerald was appointed.

    The jury found Libby lied. As Beldar has observed: “Scooter Libby’s prosecution didn’t depend just on the difference between his purported recollection and Tim Russert’s, for example, but between his purported recollection and the recollections of a large handful of other witnesses, key documents, and Libby’s own sworn recollection at other times.”

    I don’t know where you get your confidence that the sentence would have been overturned. The appellate judges ruled Libby was not entitled to delay his sentence, an indication that they didn’t see any serious likelihood of reversal.

    Patterico (2a65a5)

  22. Patterico — I agree that there are leaks and there are leaks.

    The leaks about the SWIFT and other ONGOING operational programs are certainly worthy of investigation, and are being investigated.

    And, the leak of Plame’s name was worthy of investigation IF she had been covered by IIAP.

    But if she wasn’t, then I’d say no, it wasn’t worth an investigation.

    Leaking the name of a CIA case officer who has been sitting at Langley for 5+ years, the recent mother of twins, being transitioned to a management position that will not involve future covert operations, whose husband just wrote an high profile and inflammatory Op-Ed piece in the NYT, and who the CIA itself suspects was “outed” by Aldrich Ames to the Russians a decade ago, would not have been sufficient to accept a referral from the CIA.

    I’ve seen it reported, and I believe it to be the case from one particular source I have that has some involvement in these kinds of things, that the CIA sends a couple of referrals to DOJ everyday since a huge amount of what the CIA does and who the CIA is is classified.

    Nearly all such referrals are declined.

    You may be shocked, but when you have limited bodies and limited resoures, like the DOJ litigating components have, you prioritize the cases you accept.

    I don’t think the Plame leak, absent the IIAP angle, would have been accepted.

    wls (077d0d)

  23. moneyrunner,

    I have not banned you. I have an overactive spam filter.

    Libby committed perjury, for one thing. As for what crime was covered up, it could include the disclosure of classified information.

    Patterico (2a65a5)

  24. I’ve just read back over the indictment, and the “false statements” to the FBI was all Fitzgerald had when he was appointed. Libby had been interviewed by the FBI on Oct. 14, and Nov. 26 — both predating Fitzgerald’s appointment.

    From those interviews, Fitzgerald charged only the following false statements:

    Count 2: During the interviews, Libby stated:

    “During a conversation with Tim Russert … July 10 or 11, 2003, Russert asked Libby if Libby was aware that Wilson’s wife worked at the CIA. Libby responded to Russert that he did not know that, and Russert replied that all the reporters new it. Libby was surprised by this statement because, while speaking with Russert, Libby did not recall that he previously learned about Wilson’s wife’s employment from the Vice President.”

    These statements were false because:

    a. Russert did not ask Libby if Libby knew Wilson’s wife worked for the CIA, nor did he tell Libby that all the reporters knew it; and
    b. At the time of this conversation, Libby was well aware that Wilson’s wife worked at the CIA.

    Count 3: During the same interviews, Libby stated:

    “During a conversation with Matthew Cooper … on July 12, 2003, Libby told Cooper that reporters were telling the administration that Wilson’s wife worked for the CIA, but Libby did not know if this was true.”

    These statements were false because:

    a. Libby did not advise Cooper on or about July 12, 2003 that reporters were telling the administration that Wilson’s wife worked for the CIA, nor did Libby advise him that LIbby did not know whether this was true; rather, Libby confirmed for Cooper, without qualification, that Libby had heard that Wilson’s wife worked at the CIA.

    That’s it. That’s what Fitzgerald alleged in the indictment as the false statements made by Libby prior to his appointment.

    The second one is beyond weak, whereas the first one is a little harder to quibble with. The evidence at trial showed that Libby was deep into the issue of pushing back against Wilson’s claims, and he spoke about Wilson’s wife and the CIA more than once. So, to claim that he didn’t have any recollection of that fact when he claims Russert brought it up, seems a little dubious.

    Was it worth the going forward from the standpoint of the exercise of prosecutorial discretion? Reasonable minds could differ.

    wls (077d0d)

  25. wls,

    According to the transcript of his first grand jury appearance, Libby (and presumably Rove as well) was a subject of an IIPA, Espionage Act, theft of government property, and false statements investigation. If Fitzgerald had decided shortly after being appointed that he should only investigate potentially false statements made to the FBI, would that have affected the grand jury process?

    Elliott (e3e471)

  26. The jury found Libby lied. As Beldar has observed: “Scooter Libby’s prosecution didn’t depend just on the difference between his purported recollection and Tim Russert’s, for example, but between his purported recollection and the recollections of a large handful of other witnesses, key documents, and Libby’s own sworn recollection at other times.”

    Quite right. It did. But as a layman, it troubles me that you and Beldar seem to be throwing up the number of contrary recollections as somehow dispositive, when the only (to my layman’s eye) relevant question is, “Were the statements in dispute false, or merely inaccurate?” If the latter, where’s the crime? Perhaps my problem, though, is that I just don’t understand the law. Can sheer contrary numbers alone be used to distinguish between inaccuracy and willful inaccuracy? If so, I would have to say that that particular law is, in my opinion, “a ass.” Or am I indeed missing something that proves me to be the ass?

    I don’t know where you get your confidence that the sentence would have been overturned. The appellate judges ruled Libby was not entitled to delay his sentence, an indication that they didn’t see any serious likelihood of reversal.

    I defer to your legal judgment as to the likelihood of appellate success. But I don’t understand how a sentence could justly be upheld that is based in any way on the presumption that the sentencee merits additional punishment for the commission of a crime for which he was never indicted, much less convicted, and the elements of which have never been proved.

    Hey, I said I was a non-lawyer.

    (BTW, when you used the phrase, “would have been overturned,” was it merely infelicitous? Surely the commutation does not preclude Libby from appealing the remaining components of his sentence, not to mention the underlying conviction.)

    porkopolitan (c9ae6a)

  27. “But I fully agree with Prof. Kerr on the idea that it would have been irresponsible for Fitzgerald to simply abandon the investigation upon hearing from one person who said he had leaked.”

    Here’s where I come in: Patterico, do you think Fitz should have used his investigation to prosecute the KNOWN leaker of a possible covert agent? Since that was what he was brought in for, the rest is icing. You and I can argue forever on why Libby was prosecuted, if the jury was fair (I’d hate to face it) or if the commutation was a good thing/bad thing, but the point is why didn’t Fitz do the job he was supposed to do with Armitage?

    Lord Nazh© (899dce)

  28. Well, assuming Plame was legally covert — something I think is still unclear — I don’t know if Armitage knew that. I assume intent is an element of the relevant statute.

    I imagine if he could have made a case, he would have.

    Patterico (2a65a5)

  29. Elliott — that’s my biggest problem with what Fitzgerald did.

    Whether Plame was “covert” under the terms of the IIAP had NOTHING to do with what anyone leaked to the press.

    Whether she was or wasn’t depended wholly upon facts known only to the CIA. Fitzgerald didn’t have to empanel a grand jury and call witnesses to find out that foundational fact. He only had to ask the CIA. If the CIA wouldn’t answer the question, then he should have shut down.

    The CIA never made those facts public for purposes of the trial because no one was ever charged with a violation that would have required them to be made part of the trial record.

    Even Fitzgerald said he didn’t know.

    Finally, when the CIA did give him their “view” of her status, it was clear to anyone who understands the narrow definition given that term in the statute, that what the CIA gave to Fitz for sentencing would not have satisfied the statutory definition. Had they given that info to him — or to DOJ — at the outset, it might have caused him to pause and reflect on whether an IIPA case was possible.

    My criticism is that if he didn’t know, then he had no basis to conduct an IIAP investigation. He should have asked, and if he had gotten the same answer in 2003 that he gave in 2007 on that question, he should have seriously considered whether going forward was warranted.

    But, the root of his doggedness is that prosecutors hate to be lied to, and they have a tool in their toolbox to fix the wagon of those that lie to them.

    I’ve know, I’ve done it.

    wls (077d0d)

  30. I’m shocked that DoJ would consider such leaks to be so trivial as not to be worth their time.

    Either you are far more naive, and less informed, than I have reason to think you are, or that should have been phrased “shocked, shocked” with a little Claude Rains leer.

    Assuming this isn’t simply an exercise in how disingenous you can be without actually breaking up laughing, I recommend you peruse the New York Times over the last couple of years for any number of much more significant leaks of classified information — “secret prisons”, NSA intercepts of calls with foreign endpoints, and so on — that have been pursued much less vigorously.

    Charlie (Colorado) (19fced)

  31. You honestly believe it’s OK to divulge the name of anyone working at Langley, because they drive into Langley???

    You honestly believe that someone can be covert while working openly at Langley?

    Here’s a hint, Patterico: I’ve been Noc’ed (many years ago, and no I’m not going to tell you where or with what agency.) While I had regular contact with people from the appropriate agency, it was never in the same place twice in a row, I was never except in the most dire emergency to contact them in any overt way (like going to the offices) and if someone had called to confirm my employment, the agency would have said “who?”

    On the other hand, CIA has many employees who go to Langley every day for work, whose particular job is classified, but who can get an employment confirmation just like any janitor at Department of Agriculture.

    I’m sorry — while her job role might have been classified, Plame was in no way covert. She was treated like any other civilian employee would have been.

    Charlie (Colorado) (19fced)

  32. So it’s OK to divulge classified information, as long as the employee is not “covert”?

    Patterico (2a65a5)

  33. Thank you wls for continued intellectual honesty and disclosure on the facts of this case.

    Thank you Charlie (Colorado) for your comments.

    Patterico, I didn’t say that it’s “OK” to divulge the names of everyone who works at Langley, just that I didn’t believe one could be serious about being covert driving in and out of Langley. In addition to the info you have above from wls and others, I base much of my opinion on watching the testimony of Plame and Toensig at the Waxman hearing. Plame’s testimony was incredulous, as I discussed above. Toensig was adamant that Plame’s position did not fall under the statute and that no crime had been committed with the divulging of her identity. When Waxman acted shocked that Toensig would make that claim when he “had been told by Hayden that she was covert”, Toensig held her ground. (A position that wls agrees with above). Furthermore, Toensig offered that when she asked some of her clients who had been or were currently “under cover” if they ever reported in to Langley, “They laughed” (as in, “You’re kidding, aren’t you? Of course not!”)

    My “direct” knowledge of such matters is rather limited. I have a friend who worked at NSA years ago. That is all anyone knew, including his wife. His wife could have hired a “private eye” to follow him if she didn’t believe his story that “I can’t tell you what I do, what my office phone number is, what building I work in.” The detective would have followed him to the entrance of NSA, which is as close as anyone would get to confirming what he told his wife. I’m sure his work was more than “Classified”, but he in no way was covert. A person I know who once had some kind of “covert status” supposedly was “still in the marines”, but his family never knew where he was. In fact, some in his family did not believe him when he said he didn’t need help to find a job after “getting out of the marines” until he landed a high paying job in a computer-related firm.
    Anyone can monitor who drives in and out of Langley. Are lives of covert agents and their contacts going to be risked so obviously?

    Charlie above gives his vantage point on this as well.

    It may be that (hyperbole warning) Mr. Libby committed perjury, obstructed justice, contracted “hits’, murdered people himself, and is actually a spy for North Korea. He should pay for any crimes he truly committed. That does not change my opinion that:
    1. I doubt he obtained a trial before a fair and impartial jury.
    2. The prosecutor has made public statements that aren’t warranted by the facts presented.
    3. Ms. Plame was not covert.
    4. The CIA was more interested in its own hide that truth. Remember, this is the same CIA that allowed a high level employee to write a book, anonymously, that was critical of the President while still employed at the CIA, headed by a chief who wrote a book critical of the President after leaving office. Many other leaks have occured that would seem more damaging to the country that came from the CIA and were hailed by the media (also commented on above).
    5. The bottom line: Wilson was sent with the involvment, if not at the suggestion, of Plame, on the task so they knew what kind of report he would give when he returned- one discrediting the President. But his op-ed was found by senate investigators to be in contradiction with his offical reporting. The Senate investigation judged that what he found actually supported the idea that Saddam had sought to acquire uranium from Niger. (The British never did back down from their claims.) Before it came out that a CIA analyst sent her own husband, who had no experience in doing investigations, and that he lied in his NYT piece, they did a PR preemptive strike and put the WH in the role of villain, one that the media is all too willing to support.
    6. An aside- one comment that people make is how evil Bush is to have “put the life of a CIA agent in danger”. Remember this: since 1960 1/3 of President have been the target of assassination attempts, 2/9 have been shot, and 1/9 have been killed. I’m willing to bet that much less than 1/3 of people working at Langley since 1960 have been subject to assassination attempts.

    Looking at the forest, and not the trees, this has been a “slam dunk” for the anti-Bush factions in the CIA and State Department.

    MD in Philly (3d3f72)

  34. Patterico, when three members of the jury admit that they were going to convict because of political differences over Iraq, I have serious doubts about the conviction. Trying a Republican in front of a DC jury isn’t quite the slam-dunk trying a black in Mississippi in the 50’s would have been…….

    Meanwhile, I hope you, and every member of the prosecuting clan, enjoys the Libby Rule:”I am not saying anything to you suckweasles without a lawyer and a video recorder present. You do not have my permission to search anything without a valid and detailed warrant.” This rule should be invoked no matter what your role in the investigation is.

    SDN (b41081)

  35. “Patterico, when three members of the jury admit that they were going to convict because of political differences over Iraq . . .”

    Link?

    Patterico (4cc627)

  36. I have an overactive spam filter.

    This is one of the costs spammers impose on us all: perfectly reasonable comments get suppressed by the tools that are in place to combat spam.

    aphrael (e0cdc9)

  37. Patterico, I did not say you banned me. I said that “I have been prevented from posting on his web site.” See how easy it is to misinterpret someone even though the plain text is in front of you? If I wanted to indict you for perjury I may even have a case. “Your honor, Mr. Frey persists in claiming I was banned despite the fact that I never made that claim. How can he possibly claim that his memory failed him when he was in a position to refer to my POST AT THE TIME HE REPLIED! Moreover, there are multiple witnesses who will testify that I never claimed that I was banned.”

    Perhaps your mistake was due to the fact that you had other things on your mind, like Scooter Libby. But I’m really not going to accept that from you because I can put your head up on my wall. Just like a special prosecutor who will remain nameless.

    Moneyrunner (d5b4e1)

  38. Moneyrunner,

    I didn’t say you said I banned you.

    Two can play your little game, you see.

    Patterico (2a65a5)

  39. By the way, I love the argument: “Because I can make a disingenuous argument that somebody has misstated something, that shows that a perjury prosecution proved beyond a reasonable doubt to 12 jurors must have been baseless.”

    Patterico (2a65a5)

  40. Early on in the investigation, you learn that one high-level political official has admitted that he leaked Plame’s identity to one reporter; he claims that it was an accident, as he didn’t realize the agent’s status was covert. You also know that a lot of other reporters were leaked the same information, but you don’t know who was behind those other leaks. The reporters won’t talk: They insist on going to jail rather than revealing their sources.

    Pat

    I re-read this and I wanted to poit out a key detail everyone forgets…Armitage did 2 highly questionable things that Fitzgerald had no problem with

    A- Armitage had a 3rd party call Robert Novak as soon as the Fitzgerald appointment was ANNOUNCED to TELL Novak his leak to him was inadvertent

    and

    B- Armitage WITHHELD the information from Fitzgerald he had talked to Bob Woodward – Woodward said he had prodded Armitage to let Woodward write about it for at least a year before the Libby indictement and Armitage refused

    Fitzgerald said in his press conference that Libby was the 1st known government official to tell a reporter about Plame

    And yet it was not only Armitage who leaked to the reporter who published it, it was Armitage who was the first known official to tell a reporter about Plame, a reporter who did not write about it – ahem like Judy Miller and all the while the same govt official WITHHELD this from the Prosecutor

    Of course, Fitzgerlad never bother to look at Armitage’s calendar, but come on!

    Topsecretk9 (b822d5)


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