We need to wait for the details, but if the rumors are correct and Scooter is indicted on the False Statements Act, this scandal has been a colossal waste of time. The correct question to then ask (and the MSM certainly wont) will be 'why not perjury', much less the supposed outing of a CIA agent charge. It will wind up in court for years arguing over the minutia of a law that may not even be constitutional. Its like charging a murder suspect with a hate crime instead of a murder charge, how can you be guilty of the former if there isnt enough evidence for the latter?

The rumor mill again proves wrong. Libby is indicted on obstruction of justice, false statements, and perjury. Now those are serious charges. If he's found guilty, punish him to the fullest extent, and any republicans that were hot to get Clinton had better agree.

An indictment on obstruction of justice shouldn't be considered tangential to the issue of Valerie Plame's identity. The charge means that Libby - and by extension, the White House - was trying to hide something. What is there to hide if the leak didn't originate there?

BTW, if one wants a preview on how the talk shows are going to play this tonight, look at the comments accumulating at Maguire's site. Spin and spittle of all varieties being vented.

I've read the indictment. Scooter allegedly outed Plame's identity. That Scooter is not being indicted for doing so indicates the prosecutor's belief that outing Plame was not a crime. It was hard ball politics, which Scooter might have political (not criminal) reasons to conceal.

Wow what justice! It's great for the market but the people will suffer. 2 years of investigation and One guy falls on a sword. Long live Teflon Rove! Bush brings honor and integrity back 2 the White House.

Fitzgerald and the indictment are careful not to say that Plame was a covert agent under the IIPA. The "underlying crime" is apparently release of classified information. Sandy Berger will be called to testify to the seriousness of that offense. See Fact Finding

I said it would be Libby on this blog two years ago:

http://www.danieldrezner.com/archives/000783.html#001729

"... I don't believe there was any criminal offense here, am confident that one can't be proved, and certain that the government won't try.

That aside, if anyone in the Bush White House is dirty, my money is on Libby being the one who asked, "Will no one rid me of this troublesome priest?" Wilson's claim about Rove was never credible to me. Libby is. It's a modius operandi issue.

I just wish there was more sex involved. This is fun.

posted by: Tom Holsinger on 10.03.03 at 12:05 AM"

It appears that Libby's criminal liability arises from events occurring after October 3, 2003. If that turns out to be the case, then my October 3, 2003, post called it exactly.

The fury at Rove by the left for not incriminating himself will be something to see. Utterly incoherent as well.

But Andrew Sullivan poses the million dollar question: why would Libby lie?

I'm not convinced that Libby may not have simply misremembered. Call me naive, but think about it: according to Fitzgerald, Libby's memory contradicted *Libby's own notes*. Really, does that sound like a conniving Machiavellian Strauss-reading conspiracy-mongering neocon devil to you? No, it sounds more like a busy man who doesn't exactly remembers what he said and knew years(!) ago on an issue he probably did not consider controversial at the time. And the fact that Plame's identity WAS uncontroversial is precisely at the heart of the White House officials' defense.

Indeed, if Libby was guilty of a cover-up, why didn't he hire a criminal lawyer until today? Was this some cunning move to emphasize his innocence? In that case he's a stupid conspirator. I suppose the leftist haters of the neocons might find that convincing; I do not.

Hillary Clinton
Bill Clinton
Marc Rich
Henry Ciseneros
Ted Kennedy
Al Gore
Sandy Burgler
Valerie Plame
Joe Wilson
John Kerry
George Galloway
George Tenet

See a trend???

PD-

That's incorrect. Fitzgerald explcitly said in his press conference that pursuing the crime of outing Plame's identity was not possible because of Libby's perjurious testimony. (i.e. he didn't have sufficient facts to prove intent, a key element)

Asked in follow-up by a reporter whether he would have charged him with that if he had full and truthful testimony, he repeated this comment.

That's what I heard, too, Rick. Fitzgerald's team/The grand jury simply can't know intent because Libby lied throughout.

And I agree with the question: why did he lie? The mis-remembering might have worked for the first questioning, but who -- being a truthful sort -- wouldn't have gone to his own notes to check and then corrected himself?

My guess? He's covering for Cheney, and he'll keep doing so. He's a true believer.

For Cheney? Is anyone accusing Cheney of outing Plame? Occam's Razor suggests he was covering up for himself and the notes came back to bite him. Why bring a consipiracy into this?

If the indictment is correct, Cheney told Libby that Plame worked for the CIA on Nonproliferation. According to Josh Marshall, that makes her covert.

What elsed passed between Cheney and Libby? Did Cheney inquire as to why Libby wanted to know this, and what he was going to do with it? Did he inquire later when the whole thing went public?

I'm not saying anyone can prove it, but it seems possible that Libby got Cheney's blessing for the whole "get Wilson, out Plame" operation. If he didn't, why was he working until today?

Mark,

Cheney may not have been involved in outing Plame.

However, Cheney clearly has lied to the American public (he went on Meet the Press and said he didn't know Wilson after the meeting with Libby). He has also reportedly withheld information from Congress (see yesterday's press articles).

Fitgerald has rightly limited the scope of his investigation- but we still need a congressional investigation to find out the remainder of this story.

I assume you're on board with that?

You know how every spy movie ends with the scene where some official is about to go out and meet the press or his phone is ringing and its his boss, and he's got some 'splainin to do, because the fall guy has just walked off scot free or the lie for which all the poor schmucks were chased and offed is about to be plastered over the front page of the Times...

This is like having to watch that press conference. The story happened offstage and is OVER. We don't even get any friggin popcorn here. And this story sucks. That's all I have to say. Oh yeah, yawn.

My read on Josh Marshall's assertion is that knowing Plame worked in Nonproliferation would have given anyone familiar with the CIA reason to suspect Plame was a covert operative. Which is not to say she was, in fact, a covert operative. I can probably google the name of the head of the Nonproliferation Unit if I had the time. This makes Libby's dislcosures (a) negligent, (b) careless, (c) irresponsible or (d) all the above, but illegal? All Fitzgerald appears prepared to prove is that her employment status was classified and "not common knowledge outside the intelligence community."

If you look at our October 3, 2003, discussion of the Plame affair, you will see pretty good evidence for Plame not being a covert operative within the meaning of 50 USC 421. Here's the pertinent post with URL:

http://www.danieldrezner.com/archives/000783.html#001693

"The Wall Street Journal's Best of the Web posted something today indicating that no violation of 50 USC 421, et seq., occurred.

http://www.opinionjournal.com/best/?id=110004094

Plame must have had a covert overseas posting within the past five years to be covered by the act (50 USC 426). Here is Jim Taranto's comment:

"Wilson's bio says he worked for President Clinton as a special assistant between June 1997 and July 1998, which means he was based in Washington when he met Plame. If their kids are three years old, they would have been born in 1999 or 2000, and it seems reasonable to surmise that she was not stationed overseas as an expectant or new mother. If she has been stationed overseas during the past five years, then, the Wilson-Plame romance would have to have been a long-distance one at least during its first two years. So far as we are aware, no one has asserted that it was."

Comment - 'stationed' abroad, or just traveling abroad? I wouldn't be surprised if a full-time covert assignment never really ends, with the odd short trip from time to time.

And that's assuming that the charge wouldn't be one of leaking classified information, as opposed to the act protecting intelligence agents.

It seems to me that Libby has to take a plea deal fast. Libby will only receive mercy(?) if he has something to offer. As the prosecutor pointed out we cannot determine intent because we have been obstructed in our attempt to do so, but the investigation is continuing(He pointed he can always go to another Grand Jury). At trial everything will go on the table as witnesses are called. Each will have motives and reputuations to protect. The prosecutor will have to answer why in some form or fashion. At that point the gotta game will come into play and someone will be named as the party. Then the process starts all over again with that person.

By the why the prosecutor does not have to prove murder until he wishes to. Prosecuting allows him to offer deals to squeeze people. this process will be time consuming and costly to Libby. I do not believe he is independently wealthy to finance lawyers on his own. I doubt there are many people to run a defense fund for him. Who wants their name associated with someone whom is tied to the destruction of national security assets at a time of war

Politically the administration will be dragged thru the muck of their own creation. How can Rove work in the White House after he lied to the press secretary? You have to have some credibility at that position(How do we know you are telling the truth Scott?).

The paragraph Marshall cites (Sullivan links to it) is puzzling. Why? It reports a conversation between Cheney and Libby. Libby supposedly lied about this. And Cheney then told Fitzgerald? I don't think so. If I'm correct, Cheney did not testify, invoking executive privilege. So how does Fitzgerald know what was said in a presumably private conversation between two people where neither party spilled the truth to Fitzgerald? The mystery deepens.

Also, let me repeat my disbelief that Libby would deliberately make statements that would contradict his own notes. Has anyone looked at the possibility that Libby may have written down that Cheney told him something, without adding that he had heard that before? That sounds very plausible, particularly if the thing that is told is something that *is* common knowledge. Think about an event like the capture of Saddam. Everybody talks about it. I write down in my notes 'Joe mentioned that Saddam was captured.' The interest here is not so much that I hear for the first time that Saddam was captured, because I had heard that from Tom, Dick and Harry also. No, I'm writing it down because I find it interesting what Joe has to say about it. And precisely because it is common knowledge -as was the Plame buzz in the White House and possibly DC at large- you would not have to add where you first heard it. Then Fitzgerald captures my notes three years later and says: 'Joe told you Saddam had been captured! It says so in your notes! But you also said that you'd heard it the day before from Tom! You're lying!'

Bewildered-

You're incorrect. Cheney testified under oath.

"Comment - 'stationed' abroad, or just traveling abroad? I wouldn't be surprised if a full-time covert assignment never really ends, with the odd short trip from time to time."

The statute doesn't distinguish.

Nor would it make any sense to do so.

An operative on a short trip would often be doing so to meet with a locally-based operative or source. If you out the short-trip operative, the long-term operatives would come under suspicion.

And if the short-trip operative is meeting with a foreign source who is already under surveillance by the authorities, then that
source is pretty much done for once the government finds out the meeting was with CIA.

I think, actually, that Cheney spoke with Fitzgerald, or someone from the team -- but was not under oath.

Libby may have acted on his own, but in that case, his continued lies are bizarre. And no -- I don't believe in his "mis-recollection." Perhaps when he was interviewed by the FBI, but not when the correct info was in his notes and he had ample time to check them and check with the people with whom he'd talked. If he cared about telling the truth and wasn't sure, there were things he could have done to get sure.

Instead, Fitzgerald has evidence (and from more folks than just reporters) that when Libby told the FBI and the grand jury about the conversations with reporters, and that he'd been all, "hey, didja hear this rumor that I don't even know could possibly be true?" he was lying. Possibly lying to the reporters, if that's what he said, but definitely lying to the investigators -- because he'd been told repeatedly by gov't officials, prior to talking to reporters, about Valerie Plame.

Allegedly, of course.

"I think, actually, that Cheney spoke with Fitzgerald, or someone from the team -- but was not under oath."

And that really doesn't matter that much, since lying would still be a crime.

I'm wondering if Libby intentionally went down to protect others.

The story he chose was pretty simple and easy to stick to. A more complex false story would carry the risk of accidentally giving Fitzgerald something useful to use against Cheney.

Libby probably knows he'll get a pardon. The support stated by Cheney and Bush today almost sound like they're laying groundwork for that, making a case that he's a wonderful person who may have made a regrettable mistake in the service of his country, yada yada.

If not a pardon, the DOJ could potentially punt the prosecution using the excuse that they can't risk classified information coming out in open court.

The White House has several options to squash this.

Jon H,

You have never shown any understanding of 50 USC 421, et seq., and have constantly posted erroneous statements concerning it. At this point that looks deliberate.

There is a difference between criminal liability for revealing classified information, and criminal liability under 50 USC 421, et seq. Those are different statutes covering different things and different people. Only persons with LAWFUL access to classified information can have criminal liability for revealing classified information. Lots of things can be classified provided they are not public knowledge. In this case Plame's status with the CIA was classified, and Libby was a person with authorized access to classified information.

50 USC 421 can be violated by persons without access to classified information, but it only covers a rather narrow range of covert operatives, and it is highly unlikely that, as of 2003, Plame was a covert operative as defined in 42 USC 421, et seq.

Which means that there was no ****ing way that Libby's false statements to investigators could have impeded his prosecution under 50 USC 421. Either Plame was a covert operative as defined under that statute, or she wasn't, and if she wasn't, nothing Libby said or didn't say could possibly make him liable under that statute.

That is most definitely NOT the case, however, for criminal prosecution for revealing classified information. I can think of a half dozen different ways Libby's false statements could have impeded his prosecution for that.

So Libby goes down (with or without a White House guarantee of a pardon in case the shite starts flying) to protect Cheney serving the larger good of smearing Wilson through outing his wife? Surely only Wilson thinks he's that important this side of meeting his Creator. I find it extremely difficult to believe that the administration would risk so much to smear Wilson. Who the f*&k is Wilson anyway.

Kevin Drum has been asking that same question, with a somewhat different answer:

http://www.washingtonmonthly.com/archives/individual/2005_10/007408.php

Incidentally, Byron York at NRO is convinced that Fitzgerald does indeed have the goods on Libby:
http://corner.nationalreview.com/05_10_23_corner-archive.asp#081182

So, as Drum says, the question is: just what panicked them into it?

If I am investigating a robbery and during the course of the investigation, someone lies either to the FBI or the grand jury, I would need to be prepared to show that the lies were material and relevant to the robbery investigation. Ideally, I would show that a robbery had occurred because if there was no robbery, it might be argued that the lies were no more material than if I lied to the grand jury about my weight.

If the robbery did not occur though, I might instead demonstrate a reasonable belief that a robbery had occurred and point out the importance of cooperating in an investigation for future investigations. I might also point out that the subject matter of the potential robbery (nuclear material) was of grave importance to national security.

I can't read the indictment without concluding that Fitzgerald believes that this is situation #2. There was reason to believe that 50 USC 421 was violated because Plame's status was "classified" and "not common knowledge." But had she been covert as understood under the statute, the indictment would have said so in paragraph 1(f).

PD-

Its amazing to me that you're a lawyer and this confused.

50 USC 421 is not as good analogy to robbery, because the classified information crime requires that you can prove that the person "knowingly" shared classified information. That is a standard that isn't the same for robbery.

Go back to law school, Tulane clearly didn't cut it.

PD-

Its amazing to me that you're a lawyer and this confused.

50 USC 421 is not a good analogy to robbery, because the classified information crime requires that you can prove that the person "knowingly" shared classified information. That is a standard that isn't the same for robbery.

Go back to law school, Tulane clearly didn't cut it.

" I find it extremely difficult to believe that the administration would risk so much to smear Wilson. Who the f*&k is Wilson anyway."
posted by: bewildered

A guy who was poking holes in the Administration's rationale for going to war. Their post-no-WMD lines were both other reasons (fill in as needed, discard when they fall through), and that there had been reason to think that Saddam was an important threat.

To the extent that the American people believe that the administration fudged/lied about the data on Saddam being a threat, the worse the administration looks. And the less they'll believe any of the other reasons given.

PD Shaw,

"Covert status" is very narrowly defined under 50 USC 421. Among other things, a foreign posting is required.

Classified information is far more loosely defined. A person's employment by the CIA can be classified if the person has never in his/her life been outside the US.

You confuse apples with oranges.

Keep on doing that and you will never understand this case.

All I'll say to that bit of ad hom, Rick, is that I've argued more appeals, to higher courts, than a certain former S.Ct. nominee, and leave it at that.

Tom: I don't believe that I disagree with you. My point is that IF Fitzgerald learned that Plame was covert as per 50 USC 421, he would have said precisely so in paragraph 1(f) of the indictment. Instead, he said her employment status was "classified" and "not common knowledge outside the intelligence community." He very easily could have inserted the magic words from 50 USC 421 in paragraph 1(f) and he did not.

Why not? One could argue that since Libby is not being charged with the crime investigated, the elements of 50 USC 421 are irrelevant here. What I tried to explain with my hypothetical is that the strength of the perjury/lies/obstruction case builds on the strength of the evidence of the underlying crime being investigated. It affects the materiality of the lies, rebuts the claim that the false statements were unintentional, addresses the severity of the sentencing and explains the exercise of prosecutorial discretion.

That paragraph 1(f) of the indictment merely suggests facts that deserved investigation means to me that the prosecutor was unable to conclude that Plame was covert and the CIA was taking affirmative steps to conceal her identity.

It took me a bit to figure out why Fitzgerald doesn't want to admit that Plame was not a covert agent. See I'm A Little Slow

PD Shaw,

If Plame wasn't covert under 50 USC 421, nothing pertaining to it can be used to create materiality.

But her status as a CIA employee could be classified, and unlawful disclosure of such status arguably creates materiality for purposes of obstruction, perjury and misleading statements under 18 USC 1001.

But I think there's been a lot of reporting to the effect that Plame's status as a CIA employee was common knowledge to their neighbors and to the party circuit in DC. It seems to me, just looking at the circumstances here, that the prosecution has to prove a negative: that people like Tim Russert did not know of Plame's CIA employment prior to the meeting in 2003 with Libby. But also, it doesn't seem to me that someone like Russert is a good witness. He's shifty-eyed, smirky, and wears a hairpiece. I think of the opening scene in Steve Martin's All of Me, where Martin, playing an attorney, proves a plaintiff is faking by ripping off his neck brace as he sits on the witness stand. Almost seems as if Libby's attorney could do the same by ripping off Russert's rug during cross.

Tom Holsinger writes: " Among other things, a foreign posting is required."

No, Tom, it is not.

A lunch date in Montreal would suffice. A requirement for a long-term posting would make no sense, because outing someone on a short-term trip could be just as damaging.

PD writes: "Which is not to say she was, in fact, a covert operative. I can probably google the name of the head of the Nonproliferation Unit if I had the time. "

I doubt it.

That unit is under the Directorate of Operations. The CIA About page doesn't even identify the chief of the DO, because the person's identity is classified. (Heads of other main branches of the CIA are identified.)

If even the head of the Directorate of Operations is kept secret, I doubt the underlings would be identified.

Note that there is a similar unit under the Directorate of Intelligence, which is not as secret.

Okay guys, I have a question for you and a suggestion for the pols in DC. First the question: If the Plame case succeeds in doing serious damage to the Bush admin (more or less a given) and also casts a long shadow over US foreign policy, have we not gotten ourselves in a dreadful pickle wherein potentially rogue actors (ranging from disgruntled employees to politically motivated tricksters to much, much worse) can carry on with impugnity SO long as there is a "covert" CIA connection? Does the attempt to bulletproof intelligence agents pose the long-term risk of undermining our democratic institutions?

Second, my suggestion. Having lived in Washington long enough to meet more than a few power-couple wannabes, I think it's interesting that no one has commented on the dubious ethics of Plame's forwarding of her husband's name for the Niger trip in the first place. Married couples cannot be permitted to burnish their spouse's resume at the public's expense; when done from the shadows of an untouchable Langley office, such actions are even more questionable. Nix official coupledom's power to grant favors, and some of the problem is (as Clouseau would have it) sol-ved.

Kelli,
First of all, there are other measures that can be taken against hypothetical rogue state department and CIA officials than outing the latter in the press. If they are spreading falsehoods in an effort to influence the direction of policy, they could be reprimanded or even have criminal charges brought against them.
But more importantly, and with regard to your second point, Wilson and Plame weren’t spreading falsehoods, were they? In fact, the Niger documents brandished to make the case for war were forged, just as Wilson claimed, weren’t they? And they were cited publicly even after they were shown to be forged because the decision had been made to go to war on the pretext of Saddam having a nuclear program, evidence or no. That is the heart of the issue. Wilson was right in his assessment of the documents, even if it was his wife who got him the assignment. You are not claiming otherwise, are you? Yes, the nepotism involved in Plame suggesting her husband for the assignment is distasteful. I would rather not see assignments doled out that way. But when we have a president who tries to nominate his personal lawyer to the Supreme Court, and when professional horse-fanciers are appointed top FEMA officials on the recommendation of their college roommates, the Plame-Wilson connection really doesn’t seem so egregious—so long as Wilson got the job done. And he did. Didn’t he?

Furthermore, Wilson was actually qualified to make the investigation, as an former ambassador to countries in africa and iraq. He wasn't given the job 'just because of his wife.'

Kelli writes: "rogue actors (ranging from disgruntled employees to politically motivated tricksters to much, much worse) can carry on with impugnity"

If you haven't noticed, rogue actors *do* carry on with impunity.

Of course, their actions are okay with Bush, so it's alright if, say, torture and prisoner abuse become widespread and are condoned by military and civilian leadership.

And to the extent a shadow has been cast on our foreign policy, it's been cast by Bush's feckless policies themselves.