In Which I Quibble Vociferously

Byron York and Jeff Lomonaco have a back and forth on the Plame case in today's LA Times.  Let me commence my quibbling with this from Mr. York:

In the first days of 2004, we all thought that prosecutor Patrick Fitzgerald was investigating whether anyone in the Bush administration violated the Intelligence Identities Protection Act, the Espionage Act, or some other national-security law when the identity of Valerie Plame Wilson was leaked to the press.  But now we know that Fitzgerald, unable to find sufficient evidence to charge anyone with those very serious crimes, spent most of his three-year investigation looking for perjury, false statements, or obstruction of justice. He got Libby.

That is a weak presentation of the pro-Libby talking points, and Mr. Lomonaco pounces:

You speak confidently, for instance, of "the lack of an underlying crime" without offering any reason why we should not take seriously the notion that obstruction of an investigation actually obstructs the ability of investigators to make judgments about what crimes were committed.

Obviously in some cases, there is no argument that obstruction can obstruct an investigation.  However, in this specific case Mr. York could have been more emphatic - Libby's alleged lies did not, for example, obstruct an investigation into murder, because there was no dead body anywhere in evidence.  Similarly, it can be argued (as by York or Toensing) that Libby's testimony did not obstruct an investigation into the outing of a covert agent because Ms. Plame was not "covert" as defined by the Intelligence Identities Protection Act.  Similarly, the Espionage Act has hurdles that no reasonable prosecutor could have hoped to overcome, beginning with the intent clause of the first sentence:

Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States...

In this view, Fitzgerald spent two years investigating whether the Administration attempted to manipulate the media and avoid embarrassment while rebutting a critic.  Since those activities are not crimes, Libby's testimony could not have obstructed a criminal investigation.

Of course, the Department of Justice could have made this determination before appointing Fitzgerald as Special Counsel, so the real failure of leadership was elsewhere.

Comments

[jsyk]

From Court TV:

This Just In: Jury Still Totally Confused
Remember last week? The jurors sent a perplexing note signaling their confusion about Count 3 of the indictment against Scooter Libby, which accuses Libby of lying to the FBI about his conversation with Matt Cooper of Time Magazine. (Quick trial redux: According to the charges, Libby claimed to the FBI that he told Cooper that other reporters were telling members of the Bush administration that Joe Wilson's wife worked at the CIA but that Libby didn't know if it was true).

In their note, the jurors indicated they were unclear whether they were supposed to determine whether (1) what Libby said to the FBI was false (i.e., did that conversation with Cooper really happen as Libby described it to the FBI?); or (2) whether what Libby said to Cooper was false (i.e., did he really not know if Wilson's wife worked at the CIA, as he claimed he told Cooper?).

Before the judge could answer their question, however, the jurors told him they'd figured it out on their own and no longer needed a response.

Fast forward to this week. Late yesterday, the jurors sent another note, asking that same question again. Twice.

This time the judge has responded. He made clear to the jurors that Libby is accused of lying to the FBI, not to Matt Cooper. (Digressing: lying to the federal government is a crime; lying to a reporter is not!)

What's interesting here is that ten days into deliberations, at least one member of the jury still has fundamental confusion even about what the actual charge against Libby is.

[Semanticleo]

"Libby's alleged lies did not, for example, obstruct an investigation into murder, because there was no dead body anywhere in evidence."

WTF?

Weasel words. Your myopia apparently does not include the field of vision that is Iraq.

[Jane]

Cleo,

They are waiting for you in the other thread to answer a couple of questions that seem to have slipped your mind.

[sylvia]

What about this one - Disclosure of Classified Information :

http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000798----000-.html

[hi]

"The field of vision that is Iraq." How poetic! The word usage! The formulation! Yes! Yes! YES! How proud your parents must be.

[Tom Maguire]

Your myopia apparently does not include the field of vision that is Iraq.

Help me here - outing Valerie in June/July 2003 caused us to go to war in March 2003?

I take it back, don't help me - you have enough other questions to answer.

But thanks for the BDS demo - there may well be jurors who reason that, in the midst of an unpopular war, Bush officials must be guilty of everything and anything charged.

[clarice]

I go further than TM--this was a bait and switch w/ the baseless IIPA dangled like a shiny object in front of everyone's eyes to entrap someone into admitting the WH and OVP had dared to respond to a serial liar who was making serious charges the CIA couldn't somehow for some reason bring itself to deny.

[clarice]

Hark! I hear carnival music! Sylvia is offering newcomer rubes the chance to ride yet again on the Sylvia logic free merry go round!

[Cecil Turner]

Libby's alleged lies did not, for example, obstruct an investigation into murder, because there was no dead body anywhere in evidence.

I think a better (though necessarily more complex) analogy might be: although there was a dead body, the position of the pistol, and GSR on the victim's hands suggest it was self-inflicted. Moreover, the person who sold the victim the gun had already 'fessed up . . . and the fact that Libby may have operated an adjacent firearms booth doesn't seem terribly pertinent to the investigation of the non-crime.

What about this one - Disclosure of Classified Information : [?]

Unless Ms Plame is a cryptological cipher, it fairly obviously does not apply.

[sylvia]

Yes I agree that although I think Libby may be fudging, there is no real underlying crime here and that's why I think he should be found not guilty. However, in reality, having no underlying crime doesn't get you off False Statements, especially Federally, as Martha found out. Really, that should be changed, it's just not fair.

[Tom Maguire]

Sylvia - this seems to be a working link, and that looks like a close cousin to the Espionage Act - the intent in the first sentence is this:

Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—...

I don't think Fitzgerald ever had even a flicker of establishing intent to harm the US.

[Patrick R. Sullivan]

Lomonaco is right about this:

'Fitzgerald was investigating not just Libby's conduct but the conduct of his boss, Vice President Cheney himself, whom Fitzgerald suspected of directing Libby to disclose the fact that Valerie Plame worked for the CIA to reporters in July 2003. Not only Fitzgerald's stunning closing rebuttal, but also the eight hours of Libby's 2004 grand jury testimony make that quite clear. (I'll have more to say about this dimension of the case tomorrow.) To no small extent Libby is accused of obstructing that investigation.'

That's Fitz's theory. And there is absolutely no evidence to support it.

[sylvia]

Clarice, I can't even remember the last time when you actually responded to me with some arguments and not insults. In fact, I don't think you ever did. You are all hot air my friend, and even though you may have fooled the others, you haven't fooled me. But don't worry, I will try not to blow your cover if you just leave it alone.

[hi]

Sylvia, weren't you the person who the other day expressed confusion that this was a criminal trial? So, in lieu of Clarice, let me respond with an argument: I argue that you're an idiot.

[clarice]

Well, Patrick he did "obstruct it" if that is read to mean Libby made it impossible for Fitz to prove that nonsensical and in any event perfectly legal scenario.

[azaghal]

TM, you're right that many supporters of Libby fail to present their case as forthrightly and positively as they could. At this point, perhaps it's simple fatigue--they've said it so many times, cited chapter and verse, and it doesn't seem to get through.

At the beginning of a new thread, perhaps this is a good time to tell a little story. It's not entirely OT.

A week or so ago I read Niall Ferguson's standard article about how the US is detested around the world--the article he writes every couple of months. I happened to be talking to one of my sons shortly afterwards, who is teaching in Germany. He told me that one of his German social science colleagues approached him recently to tell him how "interesting" she found Algore to be, that during the Bush/Algore campaign she had "indoctrinated" here students against Bush, and that "all this" would never have happened if Algore were president. My son, taken aback, responded, well, 9/11 did happen. To which the German said, but if Bush hadn't been elected they wouldn't have had any reason to do it. My son noted that, after all, there had been plenty of Al Qaeda attacks on the US during the Clinton years when Algore was VP, but the German only shrugged and walked away.

[Rick Ballard]

Do we have anyone left dumb enough to pick up the shield of "Protector of the Troll" today?

[sylvia]

"Sylvia, weren't you the person who the other day expressed confusion that this was a criminal trial?"

Yes I was momentarily confused when I was looking at standards of reasonable doubts, and people kept insisting a lower standard applies. I can get confused and absent-minded, but that is all part of thinking outside of the box.

[Cecil Turner]

I don't think Fitzgerald ever had even a flicker of establishing intent to harm the US.

The bigger hurdle in applying this statute is that all the numbered elements refer to communications security and related systems.

[clarice]

My German friends who actually spend several months a year here concede that the mono-press and establishment there and in Europe work 24/7 to demean the US. (Personally I think it is envy.) Two of their friends came to visit last year and were shocked to find out Americans do not spend every day munching on Big Macs and watching Sly Stallone films. In fact, they were filled w/ even more envy when they realized all their prejudices were idiotic.

[hi]

Sylvia, for three years we've been talking about a CRIMINAL INVESTIGATION. So is that "thinking outside the box," or "thinking inside the rubber room"?

[secarr]

Hey Sylvia, nonsense postings don't require a substantive reply. In fact, it is impossible to substantively reply to your posts because, well, your posts have no substance. As for you calling Clarice "hot air" that is what psychologists refer to as projection. Don't worry though, if Hillary gets her way, soon the rest of us will be paying for your prozac.

[sylvia]

Hi. I was confused for about three minutes. Sorry. Okay, and you are the one wanting to get Libby off for "forgetting"? One standard buddy.

[roonent]

Sylvia,

With a trial, as a juror or a decider of guilt or innocence as a bystander, you are not supposed to think outsie of the box. You are supposed to consider the evidence only as the deciding factor. Anyone that looks at the evidence honestly and objectively without letting their own prejudices cloud their thinking, can only come to the verdict of innocent. There is more than reasonable doubt that Libby is not guilty.

[azaghal]

Hi clarice. Years ago I met a bunch of Iranian students in Rome--this was during the Shah's time--and all they wanted to talk about was that the CIA really ruled the world. I was totally flummoxed, trying to explain that we could only wish that that gang can hardly run itself and does its worst against its own government. Of course, when those students got their wish and the Shah was deposed, they were among the first to be purged.

I think I've recovered from a near death experience with my new computer. All day Sunday and Monday--6-7 crashed installations. I called "support" and they told me I had to register by email. Having explained that I still lacked an operating system, their operating system, the pleasant young lady on the other end asked, well, do you have Windoze on your computer. She sounded puzzled when I told here I hadn't had a MS product on my computer in 10 years! Not a very positive approach toward their own product, which I've been using all those years.

[jsyk]

What is disheartening is even if Libby is acquitted, the dems are on to their next 'scandals' - Walter Reed and the DOJ U.S. Attorney firings.

I was hoping that if Libby got acquitted - Gonzales could get rid of Fitz. But now with this attorney thing, i wonder if all the AUSAs now have job security till 2008.

[Jane]

I can get confused and absent-minded, but that is all part of thinking outside of the box.

Is that what they call it now? My family will be comforted.

[Semanticleo]

"Help me here - outing Valerie in June/July 2003 caused us to go to war in March 2003?"

Sometimes the meanings get lost in the acronym, but BDS is YOUR projection.

'He who smelled it, dealt it'.

[SunnyDay]

Sylvia didn't know whether this was a civil or criminal trial, yet had been arguing the fine points for weeks. I find that reason enough to skip her comments unless I am bored and H&R isn't around to amuse me.

[clarice]

Yipes..azaghal..That's almost as bad as having a blackberry w/ your whole life stored in it go missing.

[sylvia]

Okay, this is a majority spoof thread here. I recognize the IDs. I better lay low until they go back into hibernation.

[Pofarmer]

'Fitzgerald was investigating not just Libby's conduct but the conduct of his boss, Vice President Cheney himself, whom Fitzgerald suspected of directing Libby to disclose the fact that Valerie Plame worked for the CIA to reporters in July 2003. Not only Fitzgerald's stunning closing rebuttal, but also the eight hours of Libby's 2004 grand jury testimony make that quite clear. (I'll have more to say about this dimension of the case tomorrow.) To no small extent Libby is accused of obstructing that investigation.'

That's Fitz's theory. And there is absolutely no evidence to support it

So Libby obstructed an investigation that had at it's heart a false premise, for which there is no evidence?

[PMII]

From the Corner:

The Libby Trial: The Problem Is Not the Jury. It's the Case. [Byron York]

We now know the three questions the jury sent to the judge yesterday. This is a verbatim typed version of the foreman's handwritten note:

All three questions below relate to Count 3 (pages 74 & 75)

#1 Is the prosecution alleging that Mr. Libby did not make the statement to Cooper as presented to us in the indictment OR is the allegation that Libby did now Mrs. Wilson worked for the CIA when he spoke to the FBI on 10/14/03 or 11/26/03?

#2 Is the prosecution's allegation in Count 3, that Mr. Libby DID know that Mr. Wilson's wife worked for the CIA when he made statements to the FBI on 10/14/03 or 11/26/03 (pages 74/75…."that Mr. Libby did not know if this was true."

#3 In determining Count 3, are we allowed to consider Mr. Libby's grand jury testimony?

This is the part of the jury instructions — pages 74-75 — that is hanging up the jury:

Count three of the indictment alleges that Mr. Libby falsely told the FBI on October 14 or November 16, 2003, that during a conversation with Matthew Cooper of Time magazine on July 12, 2003, Mr. Libby told Mr. Cooper that reporters were telling the administration that Mr. Wilson's wife worked for the CIA, but that Mr. Libby did not know if this was true.

It's easy to criticize the jury — they can seem easily confused — but the problem here is not the jury. It is the charge. This is the entirety of Count 3 (and Count 5, as well): Libby testified that he told Cooper that reporters were telling him, Libby, that Valerie Plame Wilson worked for the CIA, but that he, Libby, did not know if it was true. Cooper testified that Libby did not say that. There are no notes, no recordings, no records, no nothing to support either man's story. Just Libby's testimony versus Cooper's testimony. And prosecutor Patrick Fitzgerald has asked the jury to convict Libby of a felony, one that carries a maximum sentence of five years in prison, on that astonishingly flimsy allegation. No wonder the jury is confused.

03/06 11:12 AM

[clarice]

And for which there is no applicable criminal law Pofarmer.

[Pofarmer]

What is disheartening is even if Libby is acquitted, the dems are on to their next 'scandals' - Walter Reed and the DOJ U.S. Attorney firings.

Yep, govt being govt is now as scandal.

[Joe Gloor]

Pofarmer: "So Libby obstructed an investigation that had at it's heart a false premise, for which there is no evidence?"

That's for the jury to decide...

[roonent]

Not a spoof from me Sylvia, I am a first time poster here. There is no way you can recognize my ID, unless you are thinking outside of the box again. I just wanted to point out the simple fact, you are not suppose to think outside of the box when considering the outcome in a trial. You are only suppose to consider the evidence that is presented to the court.

[clarice]

Actually, York is wrong and the case weaker--Cooper's notes exist and they substantially confirm what Libby testified to, taking into account his typographical errors on similar docs.

[boris]

Byron York: "There are no notes ..."

What about the Cooper note along the lines of "Libby heard something about Wilson's wife but doesn't know if it's even true".

[Christopher Fotos]

Byron York with the questions--apologies if this was posted in the previous thread, and a tip of the hat to Sunny Day for working to get them up, IIRC (if not, extra apologies as I am thinking out of the box):

We now know the three questions the jury sent to the judge yesterday. This is a verbatim typed version of the foreman's handwritten note:

All three questions below relate to Count 3 (pages 74 & 75)

#1 Is the prosecution alleging that Mr. Libby did not make the statement to Cooper as presented to us in the indictment OR is the allegation that Libby did now Mrs. Wilson worked for the CIA when he spoke to the FBI on 10/14/03 or 11/26/03?

#2 Is the prosecution's allegation in Count 3, that Mr. Libby DID know that Mr. Wilson's wife worked for the CIA when he made statements to the FBI on 10/14/03 or 11/26/03 (pages 74/75…."that Mr. Libby did not know if this was true."

#3 In determining Count 3, are we allowed to consider Mr. Libby's grand jury testimony?

This is the part of the jury instructions — pages 74-75 — that is hanging up the jury:

Count three of the indictment alleges that Mr. Libby falsely told the FBI on October 14 or November 16, 2003, that during a conversation with Matthew Cooper of Time magazine on July 12, 2003, Mr. Libby told Mr. Cooper that reporters were telling the administration that Mr. Wilson's wife worked for the CIA, but that Mr. Libby did not know if this was true.

It's easy to criticize the jury — they can seem easily confused — but the problem here is not the jury. It is the charge. This is the entirety of Count 3 (and Count 5, as well): Libby testified that he told Cooper that reporters were telling him, Libby, that Valerie Plame Wilson worked for the CIA, but that he, Libby, did not know if it was true. Cooper testified that Libby did not say that. There are no notes, no recordings, no records, no nothing to support either man's story. Just Libby's testimony versus Cooper's testimony. And prosecutor Patrick Fitzgerald has asked the jury to convict Libby of a felony, one that carries a maximum sentence of five years in prison, on that astonishingly flimsy allegation. No wonder the jury is confused.

[Gabriel]

I can lie to the federal government. I can't lie to federal investigators tasked with investigating allegations of crimes.

I lie to the Census bureau all the time. Come prosecute me.

There's a difference. These jurors clearly have been asked to do the impossible. They're asked to take politics and judge it against the law. Best of luck to you jurors. Even pol sci historians and professors are confused regarding politicking and the media and how that violates the law.

[Elliott]

Fitzgerald argued in his rebuttal that, rather than a disparity of a couple of words, there was a substantial disparity between Cooper's "I heard that too" and Libby's long explanation about how Wilson might have been misinformed by people at the CIA such as his wife, if in fact what he was hearing from other reporters was true.

Additionally, Fitzgerald claimed that the failure by either Cathie Martin or Jenny Mayfield, who were in the same room with Libby when he made the call to Cooper, to corroborate Libby's claim that he had made an extended mention of Wilson and his wife suggested that Cooper's version was correct.

Someone may have made this point already, but, it seems to me, contra Fitzgerald, that Cooper would have a much stronger basis for writing his "War on Wilson?" piece the way he did if, instead of Libby telling him merely that he'd also heard Wilson's wife worked at the CIA, Libby had told him, as Libby claimed he did in his first appearance before the Grand Jury, the following:

"Wilson, of course, had said earlier in the week that someone had told him that the Vice President had asked for his mission. So I said, well, I don't know why he said it. You know, I said, we're off-the-record, and he agreed.

And I said, someone --I don't know why he said it, but I would have thought --off-the-record, I would have thought that, that the CIA wouldn't tell somebody who is going on a mission who asked about it. And you know, conversation the Vice President has about these things are supposed to be confidential.

But if he did --if they did officially --they wouldn't officially tell such a thing. If they did officially tell someone, they would tell them the right thing, which was that the CIA decided to do it, which is what Director Tenet had said in his statement the day before.

So I wouldn't have thought that officially he heard this, which --but it --you know, it's possible he heard something unofficially. And if he heard something possibly unofficially, you know, maybe he knows somebody there and somebody said something to him that was wrong because it was unofficial.

And in that context, I said, you know, off-the-record,reporters are telling us that Ambassador Wilson's wife works at the CIA and I don't know if it's true. As I told you, we don't know Mr. Wilson, we didn't know anything about his mission, so I don't know that it's true.

But if it's true, it may explain how he knows some people at the Agency and maybe he got some bad skinny, you know, some bad information. So that was the discussion about Ambassador Wilson's wife."

[sylvia]

Just as an FYI, I found this interesting from the Espionage Act that Tom linked to:
---
(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

----
I bet Cheney thought that was interesting as well.

[Christopher Fotos]

Damn. PMII beat me. I blame the html coding.

[clarice]

Elliott, Time did not believe that Cooper had a confirmation when he wrote his first draft (after the conversations w/ Libby or Rove) ..they made him get more before they published it w/, as you will recall, a question mark at the end of the title.

As in Is This Article Made Up Out of Nothing?

[PMII]

Okay, who isn't confused with what's going on?

[Christopher Fotos]

Byron York: "There are no notes ..."

What about the Cooper note along the lines of "Libby heard something about Wilson's wife but doesn't know if it's even true".

If by that you mean had somethine and about the wilson thing and not sure if it’s ever, York may have been reluctant to call that "notes."

[Cecil Turner]

To re-plow some old ground: there is no "official secrets act" in the US . . . merely divulging classified information is not a criminal act. There are three main types of criminal leaking (detailed in the SF312 briefing booklet, and all are fairly specific:

• The Espionage Act which forbids leaking defense information;
• the IIPA which forbids leaking a covert agent's identity; and,
• Sec 798 (and 952 for diplomatic codes) which forbid leaking information on Comm Sec systems, ciphers and codes.

Bottom line is that, in order for a leak to be criminal, it has to fit in one of the above. Attempts to apply the Espionage Act to outing Plame are, in my opinion, flawed: it simply isn't a defense issue (this one, however, is arguable). The comm sec statutes clearly don't apply (not arguable, IMHO).

[Dale in Atlanta]

jysk:

Don't worry about the US Attorney's firing faux "scandal"; this IBD editorial puts that falacy to rest!

http://www.ibdeditorials.com/IBDArticles.aspx?id=257992096741984

Now, when the Democrats start their investigation, I hope some Republican Senator, has the "stones" to call Janet Reno to come testify, as to why she fired ALL 93 US Attorneys.....!!

[Jane]

Verdict in, to be read at noon