Wednesday, June 6, 2007


I. Lewis "Scooter" Libby, Jr. has been convicted and sentenced. The debate rages over the propriety of the prosecution, the severity of the sentence and the probability of a pardon. I wince at those who belittle the charges of perjury and obstruction of justice. But I do agree that the failure to indict as to the underlying charge of "outing" Valerie Plame as a CIA operative requires some explanation.

Federal grand jury presentments are no longer in favor for reasons too complicated to discuss here, but in view of the length and expense of this investigation and the public interest involved, it would seem that the special prosecutor should issue some statement or report as to the result of that investigation, unless there is some prohibition against his doing so. In view of the obvious thoroughness of Mr. Fitzgerald's investigation, he, more than anyone else, has the knowledge of what actually transpired. Here are some of the questions that should be answered:

1. Was a crime committed in the outing of Valerie Plame Wilson? If so, why was no one indicted?

2. If not, what elements were missing?

a. Is it because she was not "covert" as many have claimed?

b. Is it because of the geographic location of her station?

c. Is it because of some time period?

d. What other reasons were there for not prosecuting?

3. Who were the persons responsible for the disclosure of the information regarding her?

4. Was an agreement reached between the prosecution and Robert Novak? If so, what were the terms?

5. Did the prosecutor make any recommendations or referrals for actions (other than criminal) such as disciplinary, to be taken against any individuals other than Mr. Libby, and if so who and what? Would he recommend any now?

Some of these matters were or may have been presented during the course of the Libby trial and reported in the media. However, the country deserves the details in a formal presentation from the official in charge, when it appears that the power of the administration was utilized and abused for the sole purpose of discrediting a critic on an issue relevant to our going to war against another country.


Anonymouse Coweird said...

IANAL, nor am I an ex-judge or anyone else with any legal education - but my understanding is that Libby's perjury and obstruction of justice prevented the collection of evidence that would have led to an indictment for the crime of revealing Valerie Plame Wilson's covert status.

He's said that publicly; it was, in fact, the basis of the case against Libby and Fitz's call for a stiff sentence.

What am I missing, that you question these basic elements?

Thomas Allen said...

Anonymous Coweird, I don't believe the Judge is asking these questions so much as stating that a formal document should be issued that answers them in a straightforward manner.

Fitzgerald has already answered both parts of Question 1. As far as the reason for no indictment for the confirmed underlying crime, I agree that Fitzgerald and J. Walton made it clear that Libby's obstruction prevented the prosecution from bringing an indictment, thus the stiff sentence.

Question 4 is the one that interests me. After seeing Novak explode on one of the Sunday shows, I had to wonder about his culpability. I also think it is the least likely to be answered.

Question 5 is a head-scratcher for me. Is it a prosecutor's place to make such suggestions? I could see a judge giving guidance along these lines, but...

Kate said...

Hi Anon, I AM a lawyer and I don't think the point that Judge Sarokin is making is about what we know or don't know, it's more about the extraordinary amount of misinformation being distributed on this matter by various pundits that could be put to bed with straight answers to these questions by Fitzgerald now that the case is essentially over.

(a terrific example of that is that Plame was not a covert operative, which she clearly was and which the CIA has confirmed she was).

All this chatter from the right about how misleading prosecuters is not a "real" crime so offends me, I can't even begin to explain, especially if the reason there was no prosecution of a real crime was because they couldn't get accurate information because the prosecuters were lied to.

H. Lee Sarokin said...

I do not think that the indictment and conviction of Mr. Libby for perjury and obstruction of justice is inconsistent with with my questions. Despite Mr. Libby's misconduct, the special prosecutor now knows who outed Valerie Plame and what her status was at the time and all other relevant information as to the cause and purpose of her outing. Indeed, that subsequent information was utilized to prove the case against Mr. Libby. Everyone wants to know why then was no one else charged.

H. Lee Sarokin said...


As to #5, I know of instances in which U.S. Attorneys have referred matters of unethical conduct by lawyers which do not rise to the level of criminal activity.I would assume that the federal governemnt also has agencies that deal with misconduct of its employees who are non-lawyers. I concede that I do not know whether ot not U.S. Attorneys make a practice of referring such matters to other agencies, but I would assume that if they come across such misconduct they would feel a duty to report it to the appropriate department or agency.

Christopher said...

2. If not, what elements were missing?

I believe, based on news accounts and my research on the relevant statute, that Fitzgerald had to prove that Libby (or others) knew that Plame was a "covert" agent and not simply that she worked for the CIA, and this was the difficulty in prosecuting Libby or anyone else.

Libby lied (according to the jury) about another element, i.e., whether he learned of Plame's identity as a CIA agent from a classified or unclassified source. That is why he claimed to have learned of her identity as a CIA agent from the news media (no crime). But, I think Fitz's problem was in proving that Libby knew she had been an covert agent, and not simply someone who worked at the CIA.

Anonymous said...

The problem with Fitzgerald answering those questions is that giving answers to almost all of them would violate the secrecy of the Grand Jury.

My understanding (IANAL) is that because Fitzgerald was appointed by the DOJ, and not under teh now-expired special counsel law, there's no mechanism present for him to present a report that would answer those questions without violating GJ rules.

Anonymous said...

Kate said:

"a terrific example of that is that Plame was not a covert operative, which she clearly was and which the CIA has confirmed she was"

Heartfelt, straightforward and succinct. And also wrong.

The question isn't whether the CIA "confirmed" she was a "covert operative." The opinion of the CIA, which uses that term inconsistently, has no relevance. The question is whether Plame was a covert operative *as defined by statute.* Then, there are a whole host of secondary questions. Can you prove that Libby *knew* she was covert? Can the CIA prove that it took affirmative steps to keep her identity secret?

The Democratic Congress in the 1970s quite deliberately tailored the statute VERY narrowly, and for arguably good reason.

Note that I haven't said a thing to the effect that Libby wasn't guilty. He may have been. But it's about as "clear" as mud.

- Alaska Jack

H. Lee Sarokin said...

This discussion proves my point. Wouldn't it be great if Mr. Fitzgerald put this debate to bed. I recognize that there are some problems with grand jury secrecy, but disclosing why he did not seek an indictment really deals with what was lacking rather than what was disclosed. Also I think he could summarize his findings without violating grand jury secrecy. If he can make statements at a press conference, I don't know why he couldn't make them in a formal written report. It would sure end all of this sepculation and might have us focus on something a little more important than Paris Hilton's rash.

H. Lee Sarokin said...


Kazinski said...

The crux of Fitzgerald's charges were that Libby claimed he talked to reporters about Plame when he really didn't. For instance Libby said he discussed Plame with Russert but Russert said: "Wilson's wife never came up in the conversation with Libby."

And Libby lied about his conversation with Cooper too: "Cooper gave the grand jury a very different account. He said that at the end of their conversation, he asked if Libby had heard anything about Wilson's wife being involved in sending her husband on his now infamous trip to Niger to check out the uranium allegation. As Cooper has put it, "Libby responded with words to the effect of, 'Yeah, I've heard that too.'"

And the one reporter that said Libby brought up Joe Wilson's wife said that Libby didn't even have basic facts right:

"Libby again referred to Wilson's wife and said she was employed at WINPAC--the acronym for the CIA's Center for Weapons Intelligence, Nonproliferation and Arms Control, a unit of the agency's intelligence directorate. (Libby was wrong. Valerie Wilson was the operations chief of the Joint Task Force on Iraq, a unit within the Counterproliferation Division of the agency's clandestine operations directorate.)"

Those were the three main witnesses against Libby, Russert, Cooper and Miller. Libby wasn't charged for the leak because it would have been impossible to make a case that he did any leaking.

The actual leaker Armitage, leaked Plames name first to Woodward, then when nothing came out in print he kept leaking (Pincus), until something finally hit the presses (Novak).

ds said...

Is there an issue of whether such a response by Fitzgerald, much as it might clarify matters, could somehow prejudice the hearing of the appeal?

Eric Rasmusen said...

This stuff is relevant to an appeal, I should think. Would and should Libby win on appeal if it is more likely than not that the prosecutor continued the investigation after it was clear that he would not be able to indict anybody on the original crime? (because, for example, there never was a crime?) Does some kind of "unclean hands" or "entrapment" doctrine apply?

Anonymous said...

I don't see how people can claim that Libby obstructed an investigation into who leaked Plame's identity.

We now know that Fitzgerald found out very early in his investigation exactly who the "leaker" was. It wasn't Libby, and no statement that Libby made (or didn't make) hindered Fitzgerald in finding out who the leaker was.

Anonymous said...

"Anonymous said...
I don't see how people can claim that Libby obstructed an investigation into who leaked Plame's identity."

We do not have to CLAIM it any more. The jury has spoken, Libby did it, and only a Bush pardon will keep him out of prison.

You may find what Libby did to be honorable, but it was criminal, and he stands convicted.

That Lawyer Dude said...

I have a question for Kate above,
How can you have a problem with lying to a prosecutor, and at the same time condone the fact that the prosecutor and the FBI can lie to a citizen or even a lawyer.

The law Libby was convicted of (as it relates to the conversations he had with prosecutors and with FBI agents) is flawed. It is unfair, and it goes far in unleveling the playing field. The best advice any witness can take is, I will not speak to you unless you waive your right to be told the truth.

BTW before you try to tell me that Justice is a search for truth, lets not play that game. Justice is not a search for truth, it is a search for equality, from which the search of truth can be begun. Finding the truth only starts from there.

Anonymous said...

From an early comment:

my understanding is that Libby's perjury and obstruction of justice prevented the collection of evidence that would have led to an indictment for the crime of revealing Valerie Plame Wilson's covert status.

That is certainly the understanding promoted by some on the left. In fact, there are two forms the argument can take:

1 - a crime *would* have been charged except for Libby's obstruction;

2 - a crime *might* have been charged except for Libby's obstruction.

Version (1) is hard to support, since we have no idea what evidence Libby might have been concealing. OTOH, Version (2) is hard to argue against. Fitzgerald's position seems to be that Libby lied; hence we don't know what Libby's "truth" would have been; and Libby's "truth" might have been a full confession to every element of the IIPA, the Espionage Act, conspiracy to conceal evidence, and the murder of Jimmy Hoffa.

In the recent sentencing memo, Fitzgerald wrote this:

These lies had two direct results. First, they made impossible an accurate evaluation
of the role that Mr. Libby and those with whom he worked played in the disclosure of
information regarding Ms. Wilson’s CIA employment and about the motivations for their
actions. Second, the lies required the government to expend substantial time and resources...

That is Version 2 - if Libby had told the truth we don't know what would have happened.

Tom Maguire

Anonymous said...

This discussion proves my point. Wouldn't it be great if Mr. Fitzgerald put this debate to bed.

Actually, Alaska Jack's post demonstrates that your point is flawed; Jack ignores the CIA's assertion (backed by factual data about foreign trips and active attempts to maintain cover) that Plame was covert- why would he place any more credence in Fitzgerald's assertion? He will merely say that the statements of a prosecutor have no weight (nb I have had this very discussion at Obsidian Wings).

There is no satisfying ideologues.

-Carleton Wu

Howling Latina said...

The heart of the problem is the "knowing" part.

Fitzgerald had no way of knowing whether Scooter knew ahead of time that Plame was covert 'cause he claimed he couldn't remember his conversations with the vice president who would have been the logical person to either tell him she was covert or not.