Posted on 02/11/2006 6:58:42 PM PST by Jean S
Let’s say you’re a federal prosecutor.
You’re investigating officials in the Bush White House, trying to find out whether they violated the Intelligence Identities Protection Act or the Espionage Act when they told reporters that Valerie Wilson, wife of the ardent Bush critic Joseph Wilson, worked for the CIA.
Violations of those laws would be a very serious matter indeed. And just to make your investigation a high-pressure affair, you’re dealing with some very prominent figures, including Lewis Libby, the vice president’s chief of staff, and Karl Rove, the president’s top political adviser.
Then you run into a problem. You look and look, but you can’t find enough evidence to charge either man — or anyone else — with breaking the two big national-security laws.
But you believe you have a good case that Libby lied to your grand jury. So after more than two years of probing, you charge him with perjury, obstruction of justice and making false statements.
So here’s the question: In preparation for trial, Libby’s defense lawyers want you to give them evidence that when you began the investigation you had a good reason to believe that a crime had been committed — that is, that someone had violated the intelligence identities law or the Espionage Act. Do you give it to them?
First, they want you to turn over documents showing that Valerie Wilson was a covert agent for the CIA at the time she was outed in Robert Novak’s column on July 14, 2003.
Then they want the documents showing that Mrs. Wilson had been covert at some point in the five years before she was mentioned in the Novak column — a key requirement for prosecution under the intelligence identities law.
And then they want documents outlining the damage Mrs. Wilson’s unmasking has done to national security.
At least to an outsider, those might seem like reasonable requests. After all, that’s why you started your investigation, wasn’t it?
So what do you say?
Fuhggedaboudit.
The following is from recent correspondence between CIA leak prosecutor Patrick Fitzgerald and the Libby defense team:
On Dec. 14, 2005, Libby’s lawyers asked for “all documents, regardless of when created, relating to whether Valerie Wilson’s status as a CIA employee, or any aspect of that status, was classified at any time between May 6, 2003, and July 14, 2003.”
To which Fitzgerald replied, on Jan. 9, “We have neither sought, much less obtained, ‘all documents, regardless of when created, relating to whether Valerie Wilson’s status as a CIA employee, or any aspect of that status, was classified at any time between May 6, 2003, and July 14, 2003.’”
Then the Libby lawyers asked for “any assessment done of the damage (if any) caused by the disclosure of Valerie Wilson’s status as a CIA employee.”
To which Fitzgerald replied, also on Jan. 9, “A formal assessment has not been done of the damage caused by the disclosure of Valerie Wilson’s status as a CIA employee, and thus we possess no such document.” And by the way, Fitzgerald added, we wouldn’t view that information as relevant to your case, so you can forget about getting it.
About the issue of whether Mrs. Wilson had been undercover in the five years before the Novak article, Fitzgerald said, in effect, we might have some proof of that — or we might not. You don’t need to know.
In each instance, Fitzgerald told the Libby lawyers that their requests for information on any underlying crime were irrelevant because Libby is charged with lying under oath, not with violating the Intelligence Identities Protection Act or the Espionage Act.
Well, yes, but that’s not the whole story, say Libby’s attorneys. Just look, for example, at the question of damage to national security.
“Potential harm to national security was a focus of the government’s investigation,” Libby’s team wrote in a Jan. 31 brief. “In fact, the indictment alleges that disclosure of the fact that individuals such as Ms. Wilson ‘were employed by the CIA had the potential to damage the national security.’”
The Libby team went on to point out that in his news conference last October, Fitzgerald said the leak of Mrs. Wilson’s name was not only harmful, that “the damage wasn’t to one person. It wasn’t just Valerie Wilson. It was done to all of us.”
But now, Fitzgerald maintains that the most fundamental information in the case — was an underlying crime actually committed? — is not important.
Maybe he’s on solid legal grounds. Maybe not. We’ll find out later this month, when the issue is argued in court.
But for those of us outside the courtroom, for those of us who have been told for years that the leak of Valerie Wilson’s name was a very serious crime, wouldn’t it be a good thing to know whether or not that was true?
York is a White House correspondent for National Review. His column appears in The Hill each week. E-mail: byork@thehill.com
(Denny Crane: "I Don't Want To Socialize With A Pinko Liberal Democrat Commie. Say What You Like About Republicans. We Stick To Our Convictions. Even When We Know We're Dead Wrong.")
Heck, the charge could be dismissed even if the investigation WAS necessary.
Do you have a cite for a case where a charge of false statement and/or perjury didn't stick, because the underlying crime wasn't shown?
The government need not prove the legitimacy of the grand jury's investigation which led to the testimony, only the pertinence of the particular testimony to the grand jury's investigation. United States v. Regan, 103 F.3d 1072 (2d Cir. 1997)http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01748.htm
There's another one there where a conviction was impossible, because the criminal statute was unconstitutional. Perjury stuck anyway.
Likewise Scooter.
And so here we go - - the waste of time and tax dollars continues.
It's a disgrace.
What is going is a legal process called “discovery”. In this process the prosecutor, Fitzgerald, has to provide the defense team a list of witnesses and documents that he is going to introduce during the course of the forthcoming trial. The list has to be reasonably complete or the trial will be delayed while the new material is examined or, in the more extreme cases, the judge can throw the whole thing out. If the prosecutor has made a real hash of things, and Fitzgerald’s comments are leading in that direction, the judge can throw out the whole thing with a directed verdict - meaning you can not come back at a later time and try again.
The days of Perry Mason springing a surprise witness are gone, if they ever existed.
Well, if we're going to waste it, I say we at least find some amusement in it; I'd like to see Fitzgerald slapped around.
Off of the top of my head I don't but I have heard this referenced numerous times. I still don't see the relevancy of Jones v. Clinton, however.
Apples and Oranges.
I just don't the the case against Libby sticking. It was such a minor point, such a small piece of oceans of testimony, it seems to me it could easily be ascribed to a lapse of memory or mistatement.
IMHO, Fitzgerald, the dems and MSM are just going in circles chasing vapors.
Whatever the "trip up" was, it started happening in October 2003, and continued through March 2004. Libby's version of history was reasonably consistent throughout that period.
Fitzy's problem is that in his indictment and his grandstanding presser later that day he mentioned the damage done by this leak.
Had he stuck to just the perjury charge he would be fine. Instead, he felt he had to justify this technical indictment by adding a lot of the spying hoo-hah into the mix.
I've heard it referenced many many times - it seems pretty popular to attach the label "material" to the notion that a conviction must be possible, otherwise perjury isn't possible.
But nobody has been able to produce a cite to support that proposition, and most cites go in the other direction, i.e., truthful testimony is necessary for the administration of justice.
I still don't see the relevancy of Jones v. Clinton, however.
In the Libby case, the argument is that if Plame isn't covert, there can't be and outing of the covert agent. So, because there can be no outing of the covert agent, there can be no perjury in the investigation. Or, more gently, Fitz screwed up because of the order of his investigation - he should have checked "covert" first, before asking any reporters or any government witnesses (except CIA) any questions.
The parallel with the Jones case is that she had no case, because she didn't suffer actionable job discrimination. If the Court had looked into the aspect of job discrimination FIRST, it never would have got to the point of questioning Clinton under oath, and he never would have been tempted to lie and to get Monica to lie too.
The indictment is pretty mild. The presser was over the top nuts. He really puffed up the "outing" angle, beyond all reasonable need.
I expect that will be the outcome. Trying to stretch his day in the sun he has finally stayed too long at the party. (So what if it is a mixed metaphor?)
You make a valid point. A distinction between the two, however, is that in Jones v. Clinton the determination that the underlying case had no merit was made after the perjured testimony was taken. Perphaps in this case the determination that there was no crime based on her status could have and should have been made before Libby testified. It seems like you would do that right out of the gate. That may not amount to anything, though. There is the more serious element that Fitz gave an affidavit saying he had investigated her status and in response to discovery seems to claim that he hasn't. He made the claim that he had in order to get the evidence from Cooper and Miller that he is using to prove perjury. Did he obtain that evidence wrongfully?
I'd like to see Fitgerald "turned". Indictments of Plame, Wilson, Cooper, and Miller would be a nice start. Proceed from there to the whole front office of the Slimes.
The parts of the record that I've looked at don't have a glaring onconsistency in Fitz's affidavit and other testimony. His mistake was trusting the CIA - they referred the case for possible criminal violation, and the only elements they would NOT be able to show on their own relate to perp and mens rea, proper fodder for a DoJ and FBI investigation.
And I've pointed out the "Miller problem" too - if Libby skates because the investigation is bogus, what is the remedy for Miller? The investigation was just as bogus for her too - and what then is the impact on reporter/shield? Refuse to testify until the prosector produces evidence that all the other elements are made?
Hey, we can dream, can't we?
I think he's made a serious miscalculation!
The fifth ammendment applies only to criminal cases.
You cannot refuse to answer questions in a civil case. If you refuse to answer, the answer is deemed to be whatever the opposition wants it to be.
(Denny Crane: "I Don't Want To Socialize With A Pinko Liberal Democrat Commie. Say What You Like About Republicans. We Stick To Our Convictions. Even When We Know We're Dead Wrong.")
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