Understanding the Libby indictment

A discussion with an attorney who has closely followed the Libby case helped further clarify the situation:

LA to knowledgeable attorney:

From WSJ editorial:

If this is a conspiracy to silence Administration critics, it was more daft than deft. The indictment itself contains no evidence of a conspiracy, and Mr. Libby has not been accused of trying to cover up some high crime or misdemeanor by the Bush Administration. The indictment amounts to an allegation that one official lied about what he knew about an underlying “crime” that wasn’t committed.

But according to Andrew McCarthy at The Corner, the above is not correct. Libby did violate the espionage act by passing classified information to two reporters, and apparently his lie consisted of (I’m not clear on this) either denying that he had passed it to them, or claiming that the information had come from another reporter, in which case, Libby had said, he assumed it wasn’t classified. Either way Libby was lying to conceal his passing of classified information.

His defenders imagine that he wasn’t lying to conceal a crime because he wasn’t indicted for passing classified information. But as McCarthy points out, that’s because prosecutors don’t indict every time a person violates that act, there was to be a malign intent. Nevertheless, Libby did believe he had violated the act, and was lying to conceal it.

What do you think of what I’ve said?

KA to LA:

I disagree with the WSJ’s last sentence, to the extent it states categorically that a crime wasn’t committed. A crime, the espionage act, may very well have been committed, although it is not charged and establishing its commission is not necessary to prove the crimes that were charged in the indictment. Libby does not necessarily have to have believed he violated the espionage act to have had a motive. It is quite enough (a) that he thought he might have violated the act, and (b) that he would think it a major political liability if it became known that information he learned in his official capacity—whether classified or not—was being leaked to reporters.

LA to KA:

Then, to cut to the right and wrong of Libby’s actions, can we put it like this?

He certainly had the right to expose and discredit Wilson’s lies, and revealing the role of Wilson’s wife in picking him for the mission was a part of that. But where he went wrong was giving Plame’s name. He could have said, “Wilson has a wife in the CIA who picked him for this,” without giving her name. Then he would have both accomplished his job of exposing Wilson, and avoided breaking a law.

Does that sound right?

KA to LA:

I don’t think so. According to the indictment, her employment by the CIA was classified. Saying the words of her name is not the issue. Saying or confirming that his wife was at the CIA, was tantamount to conveying classified information. There was a right way to do this. They could have gone to Tenet and tried to get enough about her status declassified to explain the situation to the public. That’s the legal way to go about it. It was at least potentially illegal to go about it in the way you suggest.

LA to KA:

Ok, that clarifies it.

But remember, this idea that Plame’s employment was in itself classified and therefore a crime to reveal, has only emerged very recently. For two years we were told the crime was the exposure of a covert operative. It was pretty well establisehd that she was not covert, so for two years this whole investigation has seemed, at least to non-expert observers like myself, to be about nothing. Now we’re finding out about this new offense of revealing classified information, and the conservatives haven’t adjusted to it. So they’re still reacting to this in terms of, “This indictment is about nothing.”

The underlying problem is these bureacratically insane investigations. TWO YEARS to arrive at the facts about a few conversations? And it is seen as normal and acceptable that Fitzgerald took this long, and spent millions of dollars, to find out these few facts? Also, he’s a lawyer. Does he find spending two years on such incredible minutia to be professionally fulfilling, or even humanly bearable?

In any case, thanks again for the explanation, it was very helpful.

I realize my last queston sounds naive. Fitzgerald of course mightily advances his career through this two-year stint in this highly visible position as an investigator of top White House officials. But I wasn’t thinking about that; I was thinking of the inherent lack of interest and value of what he’s been doing. I simply can’t imagine why the facts revealed in this indictment could not have been discovered in, at most, one month of investigation. We seem to have a welfare state for lawyers.

Posted by Lawrence Auster at October 29, 2005 04:18 PM | Send