Grand Jury Secrecy

I question this from the always insightful Mickey Kaus (who has more at bloggingheads):

If Cheney had been dragged more directly into the Wilson/Plame story--even though it turned out that no law was violated--that could easily have cost the GOP ticket 1% of the vote in Ohio, no? Libby did his job. ...

Dragged how?  Leaks of grand jury testimony?  Special Counsel Fitzgerald was not operating under the old Special Prosecutor law, so there was no a mechanism for him to issue a final report to Congress - it was indict or stay silent and go home.

Since I have not exactly shied away from the notion that Libby lied, I am stuck on this bridge myself.  Well, maybe Libby figured someone would leak his testimony if he gave Cheney a larger role.  Or maybe he and Cheney were worried that Cheney would be dropped from the ticket if he were perceived by White House insiders with access to the full story (e.g., Karl Rove) as a potential liability - there were certainly some rumblings about the benefits to Bush of picking successor, rather than sticking with a lame-duck VP.

That said, Libby's lies did not really offer him any legal protection, as he explained to Fitzgerald - if Libby had known Ms. Plame's status to be classified (Fitzgerald had no witness who claimed to have told Libby that), he does not gain any legal cover by pretending to source to to reporters.  From a legal perspective, Libby could simply have said to investigators something like, 'sure, I discussed Ms. Plame with the vice-president and no doubt other people, but since no one told me her status was classified, I didn't give it much thought'.  Such an admission would not have exposed either Libby or the VP to any legal danger.

Which calls to mind the other absurdity about this TIME excerpt (emp. added):

If Libby had gone a different route and admitted in his grand jury testimony that he had told a reporter about the identity of Wilson's wife, Fitzgerald's next question would have been, Were you acting on Cheney's orders? And it would not have been long before Cheney was giving testimony under oath. There was, said Fitzgerald in his summation, "a cloud over what the Vice President did."

The casual reader may take from that the idea that it was only Libby's "lies" that stood between Cheney and a full investigation.  In fact, Fitzgerald did interview Cheney - although it was not in front of the grand jury and hence was not "under oath", Cheney would still be exposed to a false statement charge to a Federal investigator.  Now, if Cheney told Fitzgerald that he had discussed Ms. Plame with Libby and warned him that her status was classified, don't you think we would have heard about it at trial?

Who can say?  But if they were both lying, and both focused exclusively on the law, then both Cheney and Libby could have admitted that they discussed Ms. Plame without realizing her classified status.

Ahh, but what if Cheney had been told her status was classified?  In that case, Cheney could testify that he discussed her with Libby but evidently failed to apprise him of her status - that is a bit awkward for both of them, actually.

Or, Cheney could testify that he does not recall discussing Ms. Plame with Libby.  Implausible?  Well, it matches Libby's story.

Now, if Fitzgerald could find someone to tell him that either Libby or Cheney was alerted to Ms. Plame's status, he would have something looking like a case.  But per Murray Waas, the Cheney connection didn't work out:

Cheney told investigators that he had learned of Plame's employment by the CIA and her potential role in her husband being sent to Niger by then-CIA director George Tenet, according to people familiar with Cheney's interviews with the special prosecutor.

Tenet has told investigators that he had no specific recollection of discussing Plame or her role in her husband's trip with Cheney, according to people with familiar with his statement to investigators.

So Tenet, under pressure from restive underlings, pushed the criminal referral that launched this probe, then lied to protect Cheney.  In a guilty until proven innocent world, all we need is speculation.

MORE:  It is hard to see how the President could be charged with the unauthorized disclosure of classified information, since he is the ultimate declassification authority.  But how about the Vice President?  It is a likely Constitutional train wreck, but this Executive Order, revised in March 2003, does not seem explicitly to grant the VP declassification authority.

 

Comments

[Nick Kasoff - The Thug Report]

Given the absurdity of prosecuting Libby to begin with, one has to wonder why Fitzgerald didn't find some reason to call Cheney.

Nick Kasoff
The Thug Report

[Sue]

Is this another example of speaking truth to power? I am trying to hone in on the true meaning of that nasty little phrase. So far, it seems to be if you can twist the facts to suit your agenda, you get to call it speaking truth to power.

[clarice feldman]

Yes, Cheney said wait around in your office until reporters call and ask about Plame and then say you heard that, too "or words to that effect".

I am sick of commentaters tossing out stuff that makes no sense if you know--like--the actual record of the case. Though I still heart Mickey.

*****
On another topic, we can see the snakes are still doing their magic at DoJ. Re the firing of the 8 prosecutors...If the DoJ had simply said they were tired and we thought we'd need new blood it would have been the end of the story. But as the Spectator notes, Gonzales' deputy McNulty argued it was a performance issue and opened up this s**t storm and gave Schumer the opportunity to push for Gonzales' removal.
And here it gets really cute--McNulty is close to Schumer and Comey and Fitzgerald and as Gonzales' deputy he'd take over if Gonzales leaves...and you can bet given Schumer's ability to tie up confirmation of a replacement that McNulty would be in that slot until the nest preisdent takes over.

[clarice feldman]

**neXt***

[Rick Ballard]

Nick Kasoff,

It's not necessary to 'sign' your comments when your 'posted by' field contains the same info. Hit whoring gets rather old rather quickly and, while understandable, it's rarely considered admirable.

You get about the same attention if you trackback, why not give it a try?

[Patrick]

Oh, dear, Toobin has an "article" in the New Yorker, in which he gets just about nothing correct.
http://www.newyorker.com/talk/comment/2007/03/19/070319taco_talk_toobin

Sheesh.

[PeterUK]

This all still rests on the very feeble concept of outing as punishment.

[maryrose]

Gonzales has done nothing wrong. He is allowed to fire whomever he chooses. Let Schumer bloviate. Who cares? Last time I checked Schumer is not the President. I know he wants to be .but guess what-he isn't. Too bad D'Amato didn't beat him years ago. He's the one who wants a litmus test for judges. He is and continues to be bad news.
Cheney is in the clear-he's untouchable-much to the consternation of the Left.

[Other Tom]

It is the "outing as punishment" line that has bewildered me the most from the outset. And it has bewildered me because despite its transparent absurdity it has not, to my knowledge, ever been questioned. Does anyone seriously think that this strutting popinjay, rightly dubbed a "blowhard" by the Washington Post, felt "punished" as he posed in his Jaguar for Vanity Fair? Does the publicity-seeking fraud feel punished by his innumberable appearances before a fawning media? Is the Warner Bros. movie deal an additional element of the punishment? Before he was "punished," did he have a snowball's chance in Hell of showing up at the White House press dinner? God, when will the nonsense end...

[MikeS]

The Libby case was confusing, because the prosecution's theory of the case was confusing. So I can understand Toobin's desire to restate the case so that it sounds coherent.

The evidence from Toobin's perspective was overwhelming, but doesn't he know the defense rested early? The defense didn't call Libby and several other witnesses because the thought they had the case won! How can anyone write a summary of the case and leave that out?

[Richard Aubrey]

I may have missed something.

Is "classified" as a description of an employment situation the same as "covert"? Does it have any meaning?
AFAIK, only covert agents are protected. In some corporations, employees are "classified" or "non" or "un" classified, which may mean something about firing at will, or assignment restrictions or something.

Plame could well have been "classified" without being covert, without being protected, and outing her would be legal, or possibly meaningless.

[bubarooni]

did you see eric alterman (jonathan alter?) on imus this morning?

he said fitz was spineless for not indicting cheney or something to that effect.

it's hard to believe he gets bad to write.

[Other Tom]

RA: classified is indeed not synonymous with covert, at least so far as the Intelligence Identities Protection Act is concerned. That one's employment status be classified is a prerequiste for being covert, but the employee must also have had overseas service in the five years immediately preceding a disclosure in order for the crime of outing a covert agent to occur. I strongly suspect that long-time CIA parlance holds that anyone who is under cover, either official or non-official cover, is covert--but that's an entirely separate matter from how the term is defined in the IIPA.

[Charlie (Colorado)]

although it was not in front of the grand jury and hence was not "under oath",

I don't think that follows, Tom. You can make a deposition under oath in a ladies room if it's convenient.

[bio mom]

She was classified but not covert. All CIA agents are classified, I believe. It is not that big a deal.

This case is one of those national nightmares that will never stop. Like John Kerry.

[Spartacvs]

Once Fitzgerald realized he had insufficient evidence to prosecute anyone for the leak of Plame's identity under the Identities Protection Act or related legislation, it would have become obvious to him that the residual constituted a political crime for which no one could be prosecuted at law unless they were guilty of lying, obstruction or perjury during his investigation. Cheney would have an absolute defense during any questioning under oath, in that he was authorized to leak/declassify Plame's identity as he saw fit in the interests of National Security as he perceived it. This defense was also available to Scooter if he had chosen to use it as he did for the selective leaking of the NIE, but for obvious reasons Cheney would have been loath to use it and I commend Fitzgerald for realizing that it was not his mandate nor his job to force the issue. All that remained then was the prosecution of Scooter for throwing sand in his face.

[clarice feldman]

I think neither Cheney nor Bush testified under oath as that would be quite a departure from precedent. They also appeared voluntariily--I have no reason to think Fitz had the right to subpoena their testimony.

_______

Stalled leak investigations (more crap at DoJ):
"The top Republican on the House's main investigative committee, Rep. Thomas Davis of Virginia, is charging the Justice Department with stonewalling his inquiries about the FBI's assertion that it closed several leak investigations because of a lack of cooperation on the part of other government officials.

In January, Mr. Davis asked the Justice Department about a report in The New York Sun that at least three leak inquiries were shut down after officials at the "victim agency" ignored phone calls and canceled meetings with FBI agents assigned to the probes. The agents said some requests for information were rebuffed for more than a year.

On Friday, the lawmaker, the ranking Republican member of the Oversight and Government Reform Committee, sent a sharply worded letter to Attorney General Gonzales, expressing "aggravation" at the Justice Department's handling of questions about the aborted investigations.

"General Gonzales, it would be an understatement to say I am frustrated and disappointed by your department's response," Mr. Davis wrote. Mr. Davis said he would agree to procedures for a classified briefing, but that the Justice Department replied that "the concern is not classification." Mr. Davis's letter also disclosed that the director of the FBI, Robert Mueller, is conducting an internal review of the bureau's handling of leak cases."

http://www.nysun.com/article/50228?page_no=1

[Jane]

It's a "national outrage" that will provide ammunition for the future. Watch for it.

If that is how it is going to go, we may as well get good at it.

[Steve]

Regarding J. Toobin. Anybody who still believes Wilson is a straight shooting whistleblower has MUCH bigger issues than his ability to analyze the Libby defense strategy.

[Syl]

Oh, dear, Toobin has an "article" in the New Yorker, in which he gets just about nothing correct.

That's just great. :( My mom gets ALL her information from CBS, a BDS inflicted friend, and...

The New Yorker.

What's printed in The New Yorker is the whole truth in her eyes.

Oh well, give it up Syl, your mom is almost 84 and in the scheme of things it doesn't matter what she believes including that her daughter has gone stark raving mad.

At least she voted for Lieberman.

[Cecil Turner]

She was classified but not covert. All CIA agents are classified, I believe.

On the first point, that looks to be correct: she had been covert, but was no longer. On the second, some are not classified, since many appear in open hearings (e.g., to testify to Congress).

All that remained then was the prosecution of Scooter for throwing sand in his face.

Looked a lot more like "persecution of Scooter for a misfiring memory neuron." The idea that where Scooter thought he heard about Plame when he discussed it with reporters made the leaking case a close call is a bunch of hooey. Fitz admitted the true problem in his earlier affidavit:

To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.

(It's also typical Fitz overstatement: "covert work" is a meaningless term apparently designed to get around the IIPA requirement for having "served outside the United States" in the last five years.) And Toobin got one thing right:

The ruination of Libby, by all accounts an intelligent and dedicated man, is not cause for celebration.

[Other Tom]

Is Davis on Waxman's committee? It is my understanding that Waxman's ostensible reason for inviting Plame and Fitzgerald to testify is an inquiry into the administration's handling of classified information. (What on earth would Larry Johnson know about that subject, by the way?) I would certainly hope that in any such hearings the Republicans would inquire long and hard about the release of classified information concerning the NSA surveillance program, the CIA's "ghost pilots" recently outed by the LA Times, and the entirely lawful financial monitoring program in Europe. But I have never been cured of my lifelong exasperation with the Republicans' inability to handle political theatre, particularly when they are in the minority.

[MikeS]

I had a look at this regarding intelligence classifications.
www.fas.org/sgp/othergov/icmarkings.ppt

I suspect that all employees (even) of the CIA have a 'classified' relationship with the CIA.

Information can be 'classified' at several levels. For example it may be classified as Top Secret, Secret, or Confidential. Information may also be 'classified' as Unclassified.

Something about the way it rolls off Fitz' tongue, makes me think that Val was classified in the last category.

[Jane]

It is my understanding that Waxman's ostensible reason for inviting Plame and Fitzgerald to testify is an inquiry into the administration's handling of classified information.

I'm pretty sure Waxman is looking to get Rove and Cheney's security clearances voided for negligence over the Plame leak.

If you look at what he has released lately, that is where all this is pointing.

[hit and run]

Syl:
in the scheme of things it doesn't matter what she believes including that her daughter has gone stark raving mad.

Hey, from my point of view, having people think you're stark raving mad has its advantages.

[roanoke]

with the Republicans' inability to handle political theatre, particularly when they are in the minority.

They need to boycott the show.

Quit playing or fighting the damn battles that the Democrats have chosen.

Find a reason to kill the damn thing.

You are going to have blondie playing the Democrat's favorite role-

"Victim."

[Jane]

Mike,

Val is not "information". Do you know how those categories apply to people, or how that is determined?

[hit and run]

It is my understanding that Waxman's ostensible reason for inviting Plame and Fitzgerald to testify is an inquiry into the administration's handling of classified information.

Well, and when you read his letters - he states repeatedly and singularly "White House". Not government, not even administration.

[Spartacvs]

Cecil :

"persecution of Scooter for a misfiring memory neuron."

Didn't wash with the jury.

Scooter's peddling of false stories to investigators, his obstruction of a Federal investigation and his perjury before a grand jury have now been entered into the record as facts established before the law by way of a jury verdict of guilty.

Try to stay relevant.

[MikeS]

Jane
Don't know.
I think that perhaps her 'relationship with the CIA' is the information Fitz is referring to

[Jane]

her 'relationship with the CIA'

I never thought about it like that. Altho I'm not sure her relationship could be classified is she drove to Langely every day. Are the security guards at Langely considered classified?

[Cecil Turner]

I'm pretty sure Waxman is looking to get Rove and Cheney's security clearances voided for negligence over the Plame leak.

Wouldn't be too surprising, cuz Waxman is brain-dead . . . but it's silly, even for him. One thing that came out loud and clear at trial is that the CIA folks passed that info along with no warnings that it was classified. And if they don't treat it like it's classified, why should anyone else?

Scooter's peddling of false stories to investigators, his obstruction of a Federal investigation and his perjury before a grand jury have now been entered into the record as facts established before the law by way of a jury verdict of guilty.

Yeah, and the jury never makes mistakes, eh? Hey, just out of curiosity, if this is overturned on appeal, does it then mean it never happened? Do the "facts" come with date stamps? And does the "fact" that the juror logic is obviously faulty have any bearing on the validity of your "facts"?

There was just so many of those things that -- it was just very hard not to believe how he could remember it on a Tuesday and then forget it on a Thursday and then remember it two days later.

[Other Tom]

It's reassuring to know that Waxman and his committee lack the power to revoke anyone's security clearance. I disagree with the idea of boycotting the thing; I would rather see the GOP come out swinging, although I am not holding my breath. Why shouldn't Jay Rockefeller's clearance be revoked, while we're at it? But don't expect that topic to be raised by any Republican...

[Syl]

Most CIA employees who work at Langley do not have a status that is classified.

The fact they are employed by CIA is not classified.

Which means for most employees of the CIA who work at Langley it's perfectly okay to say 'she works for the CIA'.

I suspect it's also okay to say Valery Plame Wilson works at CIA. It is not okay to say she works at the CIA in WMD and associate her with an ex-envoy who trotted off to Niger to hunt down info on yellowcake.

[Jane]

Why shouldn't Jay Rockefeller's clearance be revoked, while we're at it

How about John Kerry's. Let's have hearings on them too.

[roanoke]

Cecil-

Well you are talking to and about Liberals who's most stressful decision of the day might be what they want at Starbuck's-

Latte,breve..no wait soy!...venti....no,no uhhh, make that a grande!

I know guys at the bottom of the totem pole in the War on Terror.

A new DO forgot he had to go to Iraq. Even though the day before he had confirmed it to the squadron secretary. He confrimed it again in the morning but had forgot again in the afternoon. They called the wife and told her to get him packed. It was only a ten day trip but still he had forgotten.

His commander couldn't say much that week he had locked his keys in his car with the car running....

They are in a critically manned career field but still they aren't in Libby's position either.

Liberals can't empathize with that kind of stress.

There too busy deciding how they should type-

BushMcChimpHitler. (stressful stuff)

[Spartacvs]

Cecil :

just out of curiosity, if this is overturned on appeal, does it then mean it never happened?

It means Scooter is exonerated as opposed to should he be pardoned, which is open to interpretation. I wouldn't hold your breath on a successful appeal though, a pardon from our lame duck President as he slinks out the back door remains Scooter's best bet. I would caution you however that thus far loyalty has been shown to be a one way street in this WH.

[Pofarmer]

the residual constituted a political crime

That's a scary statement right there.

[sylvia]

"That said, Libby's lies did not really offer him any legal protection, as he explained to Fitzgerald - if Libby had known Ms. Plame's status to be classified (Fitzgerald had no witness who claimed to have told Libby that), he does not gain any legal cover by pretending to source to to reporters."

I beg to differ Tom. I feel like a lawyer with all this studying I have done of laws lately, but it all comes down to the law. And if you read the covert agent law,(IIPA?) you'll see this in the beginning.

http://www.fas.org/irp/offdocs/laws/iipa.html

SEC. 601. [50 U.S.C. 421] (a) Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information..

(The terms are defined as follows:)

1) The term "classified information" means information or material designated and clearly marked or clearly represented, pursuant to the provisions of a statute or Executive order...

2) The term "authorized", when used with respect to access to classified information, means having authority, right, or permission pursuant to the provisions of a statute...

If Libby can make the case that he got his "remembered" information from a reporter, that would mean he didn't get his information from "authorized access" sources. Now of course you could read the law that it says "having had", that it didn't matter if Libby remembered but that he EVER got authorized access, but then the law goes on to speak about "intent". If Libby does not in his mind "remember" about the official sources, then he does not have the intent to give out information gained through "authorized access", so the infraction would have missing elements. Again, if you read the law it states "having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent" so to me it means that THAT information gained through authorized access is the SAME information used in the leak, otherwise it doesn't count.

That's how I interpret it anyway. After all there had to have been SOME advantage for Libby to fib, and even you admit the possibilty that he might have. So can YOU think of any OTHER motive? (sorry, love the caps)

[Bill in AZ]

forgetting... during a period of much corporate travel, I once woke up after dozing briefly on a rental car shuttle bus - and couldn't remember whether I had just landed and need a car, or just parked and needed a plane.

[royf]

That's a scary statement right there.

This has been a political hit job from the beginning, false accusations stirred by the partisan press. A DA uninterested in literally hundreds of inconsistencies and actually feeding the confusion.

But the moonbats aren't worried because it brought down a member of the Bush administration. So what if it damages the thought of justice in this country.

[Tom Maguire]

I don't think that follows, Tom. You can make a deposition under oath in a ladies room if it's convenient.

Me, in a ladies room? I would find that to be most inconvenient!

But I see your point.

it's hard to believe he gets bad to write.

Eric Alterman? I believe it.

it would have become obvious to him that the residual constituted a political crime for which no one could be prosecuted at law unless they were guilty of lying, obstruction or perjury during his investigation.

The metaphysics of obstructing a non-investigation elude me, since there is a materiality requirement. Perjury I get as a matter of law, although I question the wisdom of pursuing it in this case.

[Pofarmer]

If Libby can make the case that he got his "remembered" information from a reporter, that would mean he didn't get his information from "authorized access" sources.

Except if that was the tack he was going to take, why did he mention Cheney at all, and at the first FBI interveiw? I mean, really, that just throws doubt on it at the very first minute.

Basically, I don't think Libby fibbed. I think he might have misremembered, but I don't think he intentionally lied. The fact that you have to make up all these wild scenarios to have him lying, kind of supports my case, I would think.

[sylvia]

"Me, in a ladies room? I would find that to be most convenient!"

Well Tom, I guess there's another side to you that we have yet to be revealed to us!

[Sorry, that side has been cryptically edited out of existence - I was trying to embolden "inconvenient" and managed a rather embarrassing shortening.]

[sylvia]

"Except if that was the tack he was going to take, why did he mention Cheney at all, and at the first FBI interveiw?"

Because Cheney didn't want to perjure himself, and he knew Cheney was going to come out with it all. So that was the best Libby could come up with.

[Nick Kasoff - The Thug Report]

Nick Kasoff,

It's not necessary to 'sign' your comments when your 'posted by' field contains the same info. Hit whoring gets rather old rather quickly and, while understandable, it's rarely considered admirable.

You get about the same attention if you trackback, why not give it a try?

Sorry, Rick, I'm so used to pasting a signature that I didn't even think about it. Is this better?

[Jane]

forgetting... during a period of much corporate travel, I once woke up after dozing briefly on a rental car shuttle bus - and couldn't remember whether I had just landed and need a car, or just parked and needed a plane.

That is very funny! (And a little scary too)

[roanoke]

Bill in AZ-

LOL! gha...

Tom-

To boldly go, where no man has gone before.

[Rick Ballard]

Thank you, Nick. It's better and you'll get more hits, too.

[Pofarmer]

Because Cheney didn't want to perjure himself, and he knew Cheney was going to come out with it all. So that was the best Libby could come up with.

Uhhmmmm

Why not just beleive Libby? "The Wife" was a sideshow to the NIE, not the other way around.