Cheney 'Authorized' Libby to Leak Classified Information

It might not be what you call a difficult stretch, but it is hardly beyond a reasonable doubt.

I thought that you stated earlier that the indictment stated that Libby had prior knowledge, outside of the rumor mill, of Plame's status.

One more point, a timeline of the following order does not ruin the indictment.

Libby hears "Wilson's wife works at the CIA" from the rumor mill
Libby checks with the CIA himself, to see if the rumor is true
Libby hears from Cheney and CIA briefers that Wilson's wife in fact DOES work at the CIA
Libby meets with reporters
Libby is asked by investigators where he heard of Plame, and Libby's story is designed to leave the impression that Libby was just another guy in the rumor mill, and to make sure the fact pattern in the investigator's mid did NOT include that Libby knew for a fact that Wilson's wife worked at the CIA

He could have contact with the rumor mill before learning of Plame's employment with the CIA, and still be guilty of misleading investigators as to whether or not he had learned of her employment with the CIA as a matter of fact. Libby could know for a fact, and that alone would not make him "the leaker." And even if he knew for a fact that Wilson's wife worked at the CIA and WAS the leaker of that fact, he would not have been charged with outing the agent:

Wilson's wife was not "covert" under the meaning of the "outing the covert agent" statute
Even if Wilson's wife WAS "covert," Libby would have to know THAT, in order to intentionally compromise "covert" status. It would not be enough to know that she worked at the CIA.

What the prosecutor must prove is that Libby remembered the sequence of events and the timeline regarding the conversations with the reporters. It is very difficult to prove that Libby did not have a faulty memory.

It might not be what you call a difficult stretch, but it is hardly beyond a reasonable doubt.

I think I could prove the case to an objective jury. The timeline is fairly compressed, between Libby's obtaining factual knowledge and his misleading of investigators. The fact that Libby took the initiative to call the CIA and find out -- and then, when "knowledge of Plame" is a hot potato, he forgets this in interviews about 4 months later ... and the story he weaves comes off as purposefully deceitful on a couple levels when you think about it.

He does have an outstanding defense team, and to the extent they can complicate the story in the jurors mind, he has a fighting chance of getting off. I don't mean to give the impression I think the case against him is a slam dunk, but it's not as far fetched as most posters here think.

The prosecutor claims to have no evidence from the CIA regarding the status of Plame at the time of the alleged leak. It would be difficult to have documentation of the Libby call to the CIA and not have any documentation of the status.

The very fact that the prosecutor is stone walling on documentation from the CIA indicates a problem for the prosecution. It may indicate that the prosecutor knew that there was no crime and that he proceded with trying to trap someone in the administration.

The prosecutor claims to have no evidence from the CIA regarding the status of Plame at the time of the alleged leak.

The only "status of Plame" he needs in order to show false statements and perjury is "LIBBY was well aware that Wilson's wife worked at the CIA." So reads the indictment.

The very fact that the prosecutor is stone walling on documentation from the CIA indicates a problem for the prosecution. It may indicate that the prosecutor knew that there was no crime and that he proceded with trying to trap someone in the administration.

The prosecution certainly can't bring, let alone convict on a "leak" case with what it has, that's for sure. But this isn't a "leak" indictment.

The defense is trying to make it into a leak case though, in order to make the entire affair more confusing and increase the chance of confusing the jury. Fitzgerald is trying to keep the case narrowly on the question of false statements, which is what Libby was indicted for.

The papers and cross motions filed to date show no hint of Libby's defense team intending to bring prosecutorial misconduct, or that the sole purpose of the investigation was perjury trap. I think that charge could be made with a straight face, but it's really uphill, and doesn't clearly excuse misleading investigators, any more than it excused Miller and Cooper from providing testimony to the GJ.

No, but it is partisan prosecution, where the prosecutor asked for more time to investigate a non-existent case, and now refuses to give up documentation that would prove that the case should have ended before it began.

And the trial judge will rule on the motions and cross motions.

Did you see post 13 and post 128 above? Fitz seemed pretty focused on false statements and perjury as of August 2004.

This thread has similar evidence, in the context of the Apellate Court decision in the "Miller and Cooper must Testify" case. Post 9 in that thread is the full text of the recently unredacted part of the opinion.

Wolf Blitzer was drooling over this last night on CNN.

Doesn't matter if you think they did. A special prosecutor found they didn't.

CNN implied the prosecutor was after Cheney and Bush.

Extremely stupid advice, and Cheney isn't stupid. He'd never suggest that anyone working for him should divulge classified information. Oh, well, so what if it's not true. CBS and CNN, etc. don't care.

Guaranteed... it will either be the #1 or #2 story on the talk-shows tomorrow. That along with the missing 6 billion in Iraq-funding and 'domestic spying'.

The Abramoff scandal will get nothing because Reid's neck-deep in it.

Here's an opinion that tends to support my statements. Genova says that Fitzgerald is trying to duck on the classified nature of the leak, but still claim that it existed. He can't have it both ways. Either there was something to lie about or there was not. If there was no reason to lie, why would Libby intentionally put himself in jeopardy. He wouldn't, he's a lawyer.

"There is going to be a ferocious battle over the contours of what the jury actually gets to hear in this case," he says.

The five-count indictment against Libby charges that he lied to investigators and the grand jury about how he learned the identity and employment of the CIA agent whose name was leaked to the press. Libby said he learned that information from reporters. Mr. Fitzgerald said his investigation showed that Libby had learned those facts much earlier from individuals within the government.

While the indictment discusses the importance of classified information and keeping secrets, the prosecutor did not charge Libby with violating any laws related to classified information. "The prosecutor is trying to have it both ways. He can't prove a violation [of national security] but he's trying to allege one," Mr. diGenova says.

"A trial judge is going to balance that and could very well strike that language [dealing with classified information]," he says. "When [Fitzgerald] loses that language, he loses all kinds of power in the charging document."

DiGenova adds that if the trial judge allows the references to classified information to remain in the indictment, defense lawyers will probably attack the CIA itself for failing to take the necessary measures to protect its own agent.

It was the CIA that enlisted the agent's husband, Joseph Wilson, for the sensitive mission in Africa, and it was the CIA that permitted Mr. Wilson to publicly disclose his role and publicly criticize the White House in an op-ed piece in The New York Times, diGenova says. In effect, the CIA set the stage through sloppy tradecraft for the disclosure of one of its agents.

Witnesses will also play a key role at the trial, analysts say.

"You never know how a jury is going to evaluate the credibility of the witnesses," says Paul Butler, a law professor at George Washington University and a former federal prosecutor. The central witnesses in Libby's case will probably be news reporters, who may appear reluctantly on the stand or who may demonstrate sympathy toward their former source.

DiGenova says perhaps Libby's best defense will be the simplest defense - that he had no intention of lying.

Rothstein says the Libby case raises questions about the fairness of appointing a special counsel to engage in open-ended investigations that involve political officials in Washington.

He says political officials are under more pressure than most other Americans faced with a criminal investigation. "Because they are afraid of political embarrassment ... they can't do what normal people would do in this situation and simply take the Fifth - plead the privilege against self-incrimination and not answer," Rothstein says. "They take a big political hit for that, so they lie," he says.

Rothstein says to avoid this kind of trap, special prosecut

Genova says that Fitzgerald is trying to duck on the classified nature of the leak, but still claim that it existed. He can't have it both ways. Either there was something to lie about or there was not. If there was no reason to lie, why would Libby intentionally put himself in jeopardy.

There are two points there. One of them being assertions of "classified nature of the leak" in the indictment, and the other being Libby's motive for misleading investigators.

As to Libby's possible motive aside from fear of criminal prosecution for "outing the covert agent" (which, as discussed above, he can't even DO if he doesn't know for a fact that she is COVERT), I can think of two pretty solid ones, and a third that is more or less humorous.

One is to avoid putting the WH is an embarrassing situation of "admitting" it was attempting to discredit Wilson. Another is to avoid being fired. If the WH is intolerant even of non-criminal leaks, e.g., a leak to embarrass Wilson, the Libby would not want to admit that he was responsible for "feeding the rumor mill," even if he wasn't the originator of the rumor. The less serious reason is just playing "gotcha" with the media. He knows there is no criminal liability even if the media is incorrectly fingered as the leaker, and if he gets away with his lie, Fitzgerald concludes his investigation with a "no bill."

With regard to the assertions of "classified nature of the leak" contained in the indictment, there is little of the sort, and what is there is background to explain why the investigation is undertaken at all. Once undertaken, the investigation is "serious," and even President Bush asserted that the investigation was serious. Here are the passages:

d. The responsibilities of certain CIA employees required that their association with the CIA be kept secret; as a result, the fact that these individuals were employed by the CIA was classified. Disclosure of the fact that such individuals were employed by the CIA had the potential to damage the national security in ways that ranged from preventing the future use of those individuals in a covert capacity, to compromising intelligence-gathering methods and operations, and endangering the safety of CIA employees and those who dealt with them.

This is a generic statement. It does not refer to Plame at all.

f. Joseph Wilson was married to Valerie Plame Wilson ("Valerie Wilson"). At all relevant times from January 1, 2002 through July 2003, Valerie Wilson was employed by the CIA, and her employment status was classified. Prior to July 14, 2003, Valerie Wilson's affiliation with the CIA was not common knowledge outside the intelligence community. ...
25. On or about September 26, 2003, the Department of Justice authorized the Federal Bureau of Investigation ("FBI") to commence a criminal investigation into the possible unauthorized disclosure of classified information regarding the disclosure of Valerie Wilson's affiliation with the CIA to various reporters in the spring of 2003. ...
28. A major focus of the Grand Jury Investigation was to determine which government officials had disclosed to the media prior to July 14, 2003 information concerning the affiliation of Valerie Wilson with the CIA, and the nature, timing, extent, and purpose of such disclosures, as well as whether any official making such a disclosure did so knowing that the employment of Valerie Wilson by the CIA was classified information.
29. During the course of the Grand Jury Investigation, the following matters, among others, were material to the Grand Jury Investigation: ...
iv. LIBBY's knowledge as to whether any information he disclosed was classified at the time he disclosed it;

That's it. The indictment contains no allegation that Libby disclosed classified information.

The point of mentioning the "classified nature" is necessary to legitimize the existence of the investigation; but even if it is not possible to "out the covert agent" (for example, because the agent isn't in fact "covert"), witnesses are required to testify truthfully.

"A trial judge is going to balance that and could very well strike that language [dealing with classified information]," he says. "When [Fitzgerald] loses that language, he loses all kinds of power in the charging document."

DiGenova adds that if the trial judge allows the references to classified information to remain in the indictment, defense lawyers will probably attack the CIA itself for failing to take the necessary measures to protect its own agent.

Whole lot of speculation there, both as to what the trial judge will admit as evidence and lines of inquiry/attack, and also on the projected impact that will have on the jury.

More recent filings by both sides give some insight, and those filings are discussed on the threads I directed you to in my previous post. I doubt the trial judge is going to permit a line of argument that goes after the CIA for failure to protect an agent's covert status. That is NOT the issue is this case.

"You never know how a jury is going to evaluate the credibility of the witnesses," says Paul Butler, a law professor at George Washington University and a former federal prosecutor. The central witnesses in Libby's case will probably be news reporters, who may appear reluctantly on the stand or who may demonstrate sympathy toward their former source.

As to the testimony of reporters, Fitzgerald has their sworn testimony. He can read that, or ask them to read it, and then ask if they still hold to their previous testimony. As I stated a few times, I think the more important witnesses are the investigators. Small differences between Libby's version and reporters' version of their conversations aren't going to matter. What matters is whether or not Libby withheld from investigators (or did he forget?), the fact that Libby knew Plame worked at the CIA.

DiGenova says perhaps Libby's best defense will be the simplest defense - that he had no intention of lying.

I agree with that. I'm not sure the defense works, but that is where the case lies, and that is the nub of a solid defense -IF- the jury believes the investigators and other evidence that shows Libby knew that Plame worked at the CIA.

Rothstein says ... political officials are under more pressure than most other Americans faced with a criminal investigation. "Because they are afraid of political embarrassment ... they can't do what normal people would do in this situation and simply take the Fifth - plead the privilege against self-incrimination and not answer," Rothstein says. "They take a big political hit for that, so they lie,"

Hey! That resembles one of the possible motives identified above. Avoidance of political embarrassment. And Libby would be guilty of insubordination if he didn't cooperate fully with the prosecutor, as ordered by the President.

I haven't had time to read your last post, but the WSJ had an article on this subject this morning that said that Cheney had authorized Libby to release recently declassified information to support the administration's reasons for going to war, not to release Plame's identity. Plame's identity may have been included in the reams of documents that were supplied to Libby by the CIA, but Fitzgerald has so far refused to release them because it would prove that he knew from the beginning that Plame's name was not classified and that he had mischaracterized the information in the indictment and before the Grand Jury.

Note, Libby was not authorized to "leak" classified information, but recently DECLASSIFIED information and it is perfectly plausible that he didn't remember having read about Plame in the reams of recently declassified info.

I haven't heard anything from you since the disclosure that Libby's request to the CIA was for all the recently declassified information, not the identity of Joe Wilson's wife.

We know that Fitzgerald has stated that he has no documents that support the fact that Plame's identity was not classified and that is what the court fight is about. So, if the prosecutor is telling the truth, that means that he got his information verbally from someone inside the CIA, a very partisan someone. It is very likely that Libby has documentation to support his claim that his request was for all the recently declassified material pertaining to the reasons for going to war, but Libby's lawyers don't think that he should have to prove it.

The prosecutor and the Democrats know that this is a losing case, but want to drag it out until closer to the mid-term elections, and would really like to do it without exposing their partisan source within the CIA.