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Sunday, March 11, 2007

Libbyterians

Ok, I know I'm just an economist. (Really, I do.) But I also have a history of obsession with the PlameWilsonArmitageRoveLibbyNovakCheneyLibbyBushFitzgerald case (I think I wrote more about the case on my "usual" "blog", CCM over the last 18 months than I wrote on, ahem, professionally relevant topics).

I'm going to try and avoid getting in the habit of posting much on that topic here, in the service of avoiding the maniacal look I had for much of that time. But.

But, here are a couple thoughts on this morning's appearances by George F. Will on This Week and Senator Arlen Specter (R-State-of-Irrelevance-That-Only-He-Doesn't-Realize) on Face The Nation.

First consider Specter. On FTN today, he said something to the effect of this:

I [Specter] am not willing to discuss the topic of a pardon for Libby right now. That's because I think he has solid grounds for an appeal. Fitzgerald was asked to investigate the leak. We now know that at the time he was appointed Special Prosecutor, the first leaker was known to be Armitage [and the second known to be Rove]. So Fitzgerald may have overstepped his mandate in prosecuting Libby for perjury and obstruction. (I can't seem to get a written transcript, so that's a paraphrasing.)

I emphasize that I'm not a lawyer. But my understanding is that truthful testimony in an investigation is the lifeblood of our system of justice. (And I'm not even relying on all the--justified--condemnations of a certain former president on this point to get to that understanding.) On that basis alone, I am more than a little puzzled at Specter's suggestion that Fitzgerald didn't have the authority to pursue the question of Libby's truthfulness in his initial FBI interviews (which occurred before AG Ashcroft recused himself due to his prior personal/political connections to Rove, who had by then been implicated in the investigation).

I assume that any time a prosecutor who is asked to investigate the criminal status of a set of actions finds that key interviewees have obstructed the investigation, that prosecutor has the authority to pursue the question of obstruction. Indeed, after the verdict, Fitzgerald said he felt an affirmative duty to do so. Moreover--and this is what makes Specter's contention today so characteristically disconnected from relevant facts--check out this February 2004 letter from James B. Comey, then-Acting Attorney General (recall AG Ashcroft's recusal) to Fitzgerald. The letter is short enough to quote its contents in their entirety:

At your request, I am writing to clarify that my December 30, 2003, delegation to you of "all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity" is plenary and includes the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; to conduct appeals arising out of the matter being investigated and/or prosecuted; and to pursue administrative remedies and civil sanctions (such as civil contempt) that are within the Attorney General's authority to impose or pursue. Further, my conferral on you of the title of "Special Counsel" in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 CFR Part 600.

(You can see the original authorizing letter here, where the operative phrase would seem to be "all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity". The emphases are mine, and note that Comey could have said but chose not to say "with respect to the alleged unauthorized disclosure...." That is, the reference to "the Department's investigation" would seem to include explicitly include everything that normally goes along with investigative powers. In any case, what would be the point of having subpoena power if you couldn't prosecute perjury?)

Makes you wonder how much time Specter spends preparing for his appearances on the shows....It's like he's Joe Biden (D-State-of-Ad-Babblon) or something.

Second, I'll tackle Will, who made a number of claims regarding the leak case, virtually all of which strike me as meritless. The one on which I'd like to focus is this one, in response to a comment by Fareed Zakaria that the leak case in general revealed dirty politics, if not serious "underlying" crimes (deep breaths, as I avoid discussing the word in quotes there--don't want to ruin my Selection Sunday):

What's the big problem? Since when has pushing back against a critic become dirty politics? The WH had every right to respond to Joe Wilson's false claims. (Again, no transcript, so that's another paraphrasing.)

I won't bother to address the merits of Will's criticism of Wilson or the question of whether the various leakers violated the IIPA. Rather, I'll simply ask a question: if the WH leakers (we can talk about Armitage another time) weren't doing anything questionable, why did they insist on anonymity? Why not go on the record? Perhaps they were worried that they would dignify Wilson's claims by doing so. Then why not have an underling do it? Why hide behind anonymity? (I note that Wilson tried the anonymous route himself before screwing up the nerve to go public.) And while we're at it, why did Ari Fleischer demand immunity before cooperating?

Ok, I lied (not under oath): here's one more point. In his press conference announcing Libby's indictment in October 2005, Fitzgerald made a key point that has been serially ignored both by the media and Libby's no-underlying-crime apologists. That point is this. Whether a leak constitutes violation of the IIPA is directly connected to the leaker's state of mind: did he know that Valerie Wilson was a covered agent? If not, there's no crime. If so, there may be one. By lying to the FBI in 2003, Libby prevented Fitzgerald from ascertaining Libby's state of mind regarding his contacts with Judy Miller and Matt Cooper (those contacts occurred before Novak's July 14, 2003, column outed Wilson).

Thus Libby's lies struck at the heart of Fitzgerald's--indeed, the prior DOJ investigation's--ability to tell whether Libby had violated IIPA. That's the source of Fitzgerald's October 2005 comment that Libby "kicked sand in the umpire's face." It's not just the usual principle that obstruction and perjury can't be tolerated--it's that these instances prevented Fitzgerald from being able to decide whether any underlying crime (violation of the IIPA) had been committed.

(If you doubt that fact, consider Armitage. For all the snorting some folks have done about Armitage, it appears that he was not charged for the leak because Fitzgerald concluded Armitage did not know--or, at least, could not be proven to have known--that Wilson was covered. And Fitzgerald seems to have drawn that conclusion only after taking grand jury testimony from Armitage.)

I better end it there....second half of UNC-NCSU has already started....

Posted by Jonah Gelbach on March 11, 2007 at 02:22 PM in Criminal Law | Permalink

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Comments

I'd say Ashcroft appointed a special counsel due to political pressure, but there is no reason to think the particular choice of Fitzgerald was due to any particular pressure. Ashcroft followed the pattern we have seen in several such past cases.

Please, I did not make a naked assertion. I made a naked speculation. My speculation about Fitzgerald is based on the question of whether Plame is a covered employee. I still haven't seen any reasons to think she is. Rather, I have read the requirement that such an employee would have been out of the country in the prior five years. On this, I don't think Plame qualified. So, I have to ask what Fitzgerald was investigating? The authorizing letter you quoted shows he had all the authority. What was the crime he was investigating?

I am not asking what the jury found. I am asking what crime Fizgerald set out to investigate at the beginning of his effort. I am also asking if Plame was a covered employee. If she was not a covered employee, then it is reasonable to conclude Fitzgerald was not investigating a leak of her CIA status since she didn't have a covered status.

Posted by: Elliot | Mar 14, 2007 10:36:51 AM

Elliot

Regarding your point 3, I think it defies the history of the case to suggest that John Ashcroft appointed Fitz special prosecutor because of media pressure. Not least because Ashcroft recused himself, but also because his was not a tenure marked for its concern for media criticism of his, ahem, partisanship.

Moreover, aside from naked assertion by you and others, I'm still unaware of any reason to think that Fitz is some kind of out-of-control political animal who sat around worrying about "looking foolish" for not prosecuting.

Your initial comment asked "What was the crime?" Like it or not, Scooter Libby did actually lie to the FBI and the GJ, and a jury did actually convict him. At a minimum, there's your crime.

Posted by: jonah gelbach | Mar 14, 2007 12:26:46 AM

1. Many trees have been felled talking about Plame. But perhaps it only takes a sapling or two to ask if she had been out of the country in the five years previous to the event in question. A simple statement of why she was covered would be interesting.

2. Thank you. I am indeed entitled to my speculations, as you are entitled to yours. However, I suggest mine are speculation; your ideas about FSU are surely fantasy.

3. The reason for speculating that the prosecutor wanted to prosecute lies in fact that we have arrived at a point where we can now see a pattern. Politicians see an opportunity, the media maintains a drumbeat about corruption, the AG appoints special prosecutor, and the prosecutor spends millions investigating. Then media demands prosecutions, the prosecutor is under the spotlight, and prosecutor looks foolish if he spends millions and months coming to the conclusion everything he did was a mistake since nothing really happened. I'm not sure how the fact that Bush appointed him and Comey chose him matter. What's your speculation?

Posted by: Elliot | Mar 13, 2007 7:07:01 PM

Elliot writes:

my question is why he even continued the investigation when he knew at the start 1) Armitage leaked first, 2) Rove leaked second, 3) Plame was not a covered employee of the CIA. What was he investigating? What was the crime?

Let me start by addressing points 1 and 2. First, the fact that Armitage and Rove were Novak's sources does not mean Libby could not have violated the IIPA. His conversations with Cooper and Miller took place before Novak's column appeared and therefore, assuming Valerie Wilson's status indeed was covert, constituted a leak of a covered agent's identity. Thus there was a reason to investigate whether an "underlying" crime had been committed. Second, as I mentioned in the post, Libby's initial lies were in the case file when Fitzgerald took over and were (at least potentially material) to the point I just made. Was Fitz supposed to just ignore those lies? (Note that he might not have been certain the lies were lies at that point--just contradictions of other interviewees' statements, but that point is irrelevant to whether an investigation was warranted.) Finally, I remind you again that Rove's involvement was the reason for Ashcroft's recusal. It's easy to imagine that DOJ might not, by Fitz's appointment in December 2003, have concluded Rove was innocent of an IIPA violation.

Regarding your third point, I and many others have killed enough virtual trees already. You can believe what you want, but as far as I am aware there is much evidence to the contrary and none on your side on that point.

My speculation is that he was looking for some reason to conduct any prosecution for anything, and as he probed more he increased the opportunities for perjury, and increased the probability that he could prosecute someone for something.

You are of course entitled to speculate, just as I speculate that FSU's men team would have made the tourney had they beaten GT at least once.
I have reasons to believe my speculation is correct: for instance, GT is in the tourney, FSU had 13 losses but would have had only 12 if they'd beaten GT, and FSU finished poorly (even if that was partly due to Tony Douglas's arm injury).

But what's your reason? Fitzgerald is a career prosecutor, I believe appointed by the current President. He was chosen by James Comey, then the second-ranking official in the DOJ, who is unlikely to be shown to be some sort of In-These-Times-reading tree-hugging leftist. And, he stated in his October 2005 press conference that he wasn't charging the Espionage Act--despite considerable, mostly trepidated, speculation on among Bush opponents that he might--precisely because doing so could reasonably be considered overreaching.

Finally, I'll remind you that Libby was convicted of both perjury and lying to the FBI. The latter lies occurred before Fitzgerald's appointment and so really can't be considered the desperate behavior of a beleagured target of prosecutorial overzeal.

Posted by: jonah gelbach | Mar 12, 2007 2:10:09 PM

Abadaba writes:

One of the major flaws with this post is that it assumes Plame was a covered CIA employee. All public indications are that she was not.

I'm curious about the public indications you have in mind here.

I won't go into all the stuff about CIA spokesman Bill Harlow's conversation with Novak and so on.

But I will note for the record that the original DOJ investigation started up after a referral by the CIA pursuant, as I understand things, to the IIPA. Perhaps I'm wrong about the IIPA part, but why do you think the CIA would make such a referral if, as you speculate, Valerie Wilson was not a covered agent? Moreover, why did Libby lie? And, why shouldn't obstruction of justice and perjury be prosecuted?

Now to the rest of your comment:

your comment that the only reason one would ask for anonymity is that the comments were of "questionable" legality betrays your ignorance of the ways of Washington.

For what it's worth, I spent a year working in an EOP (Executive Office of the President, for those as ignorant as I). I've lived in Washington on and off for more than a decade. And my wife is a political journalist who covered basically most, if not all, major Washington stories from 9/11/01 (well, 9/12, anyway--it took her all night to drive to DC from her previous beat) to the Alito hearings. As long as her hours were in DC, we did manage to talk over dinner about, say, the comments of various chiefs of staff. So it's at least possible that I know more about DC and how it works than you imagine.

People in government routinely speak on background (i.e., anonymously) to the media for a host of reasons. Indeed, sometimes government agencies authorize their employees to speak only on background.

Yes, they do. But your point doesn't refute mine--it just begs the intriguing question in this case: what were Rove, Libby, and the rest of the gang's reasons here?

Posted by: jonah gelbach | Mar 12, 2007 11:02:56 AM

Abadaba is an idiot. Larry Johnson and other former CIA colleagues have confirmed that Plame was covert. One would think that Prawfsblawg readers are a bit too smart to be taken by such obvious spin -- "all public indications" -- riiiiight.

Posted by: Not Abadaba | Mar 12, 2007 2:05:16 AM

That's a very revealing letter authorizing Fitzgerald. He had all the auhtority he needed to continue or halt the investigation. Continuing was his decision, not an order from superiors. So, my question is why he even continued the investigation when he knew at the start 1) Armitage leaked first, 2) Rove leaked second, 3) Plame was not a covered employee of the CIA. What was he investigating? What was the crime?

My speculation is that he was looking for some reason to conduct any prosecution for anything, and as he probed more he increased the opportunities for perjury, and increased the probability that he could prosecute someone for something.

Posted by: Elliot | Mar 11, 2007 10:14:52 PM

One of the major flaws with this post is that it assumes Plame was a covered CIA employee. All public indications are that she was not.

Also, your comment that the only reason one would ask for anonymity is that the comments were of "questionable" legality betrays your ignorance of the ways of Washington. People in government routinely speak on background (i.e., anonymously) to the media for a host of reasons. Indeed, sometimes government agencies authorize their employees to speak only on background.

Posted by: Abadaba | Mar 11, 2007 9:33:00 PM

Well said. Your avocational love of the law does indeed shine through here, economist or not! I also think Fitzgerald properly acquitted himself in the one (most recent?) press conference I heard.

Posted by: Patrick S. O'Donnell | Mar 11, 2007 3:37:39 PM

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