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Can't refute the cites, can you.

Both are probably true, in your mind.

Clinton was under oath in a legal proceeding before a judge. It doesn't matter if it is civil or not.

But your test of materiality was whether or not the defendant could be convicted - i.e., no crime, no way for there to be materiality. In the Clinton case, the cash settlement was a condition that Jones imposed for her to drop the case. She dropped the case, and promised not to sue on the same cause of action.

Libby was under oath, and was being questioned by federal investigators. You are excusing lying in that context, on the condition that the investigation cannot result in a charge of the underlying crime. Even DiGenova disagrees with you on that point.

Materiality is more like "germaneness." There would be no perjury in this case if the witness lies about what he had for lunch, or what he watched on teevee, etc., because those inquiries have absolutely no bearing on the investigation at hand.

The false statement must be material to the proceedings. A false statement is material if it has "a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed." Kungys v. United States, 485 U.S. 759, 770 (1988)(denaturalization proceeding). The testimony need not have actually influenced, misled or impeded the proceeding. For example, potential interference with the grand jury's line of inquiry suffices to establish materiality, because of the grand jury's broad investigative function. United States v. Williams, 993 F.2d 451, 455 (5th Cir. 1993); United States v. Gribben, 984 F.2d 47, 52 (2d Cir. 1993). 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). A similarly broad construction of materiality is appropriate in the context of false declarations made in connection with civil depositions. United States v. Kross, 14 F.3d 751, 754 (2d Cir.), cert. denied, 115 S.Ct. 99 (1994); United States v. Holley, 942 F.2d 916, 924 (5th Cir. 1991), cert. denied, 510 U.S. 821 (1993). But see United States v. Adams, 870 F.2d 1140, 1146-48 (6th Cir. 1989)(false statement must tend to affect the outcome of the underlying civil suit for which the deposition was taken). The statement may be material to any proper matter of inquiry, including collateral matters that might influence the outcome of decisions before the tribunal, such as determining credibility issues. United States v. Kross, 14 F.3d at 755. Materiality is not negated merely because the tribunal did not believe the testimony or sought cumulative information. United States v. Reilly, 33 F.3d 1396, 1419 n.20 (3d Cir. 1994). Furthermore, testimony may be material even if it relates to events as to which the statute of limitations has run, since the grand jury may have legitimate reasons to inquire about such events aside from an expectation of returning an indictment charging those events as crimes. United States v. Chen, 933 F.2d 793, 797 (9th Cir. 1991); United States v. Nazzaro, 889 F.2d 1158, 1165-66 (1st Cir. 1989).

http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01748.htm

You are trying to make this more complicated that it is.

I think I am wasting my time with you, but others may find the citations useful and edifying.

And, lest we forget, prosecution in cases like this is up to the discretion of the prosecutor. It is selective prosecution to indict for something like this.

I agree with that.

Even you cannot come up with a similar instance. There are none.

I cited one where perjury stood where the underlying offense was impossible because the statute was void due to constitutional infirmity. I don't know the US v. Regan case, so won't comment on it except to say that it appears to stand for the proposition that one does not escape perjury charges just because the investigation is bogus.

There was a crime, or the real possibility of a crime. Clinton in effect admitted to his guilt by settling.

No crime. It was a civil case, and the case was dropped by the plaintiff. Given thatteh case was dropped, a finding of liability became impossible.

How about the criminal case where the statute was found unconstitutional? There can't be a conviction against a void statute - yet perjury stood.

Or do you think lying to investigators is okay? DiGenova doesn't think so, not even in the Libby case.

She was charged.

http://www.sec.gov/news/press/2003-69.htm
http://www.sec.gov/litigation/complaints/comp18169.htm

Doubtful. NOC is the deepest cover that CIA creates. The appearance of a NOC is "no connection with CIA." Plame was publicly a WMD analyst for CIA, therefore was not NOC.

Whether exposing a NOC is against the law or not, I do not know.

It is. Criminalizing the exposure of NOCs was the purpose of 50 USC 421 et seq.

... why would the Justice Department assign a special prosecutor to the case?

This case was coughed up by DoJ to an independent counsel based on political pressure from the DEMs. If Libby hadn't given Fitz a bone to chew on, the referral would be dead, today.

This is what Joe DiGenova says.

Toensing and DiGenova assert that the entire investigation was bogus, because Plame obviously did not satisfy the "covert" requirement embodied in 50 USC 421. I agree with them in that regard, but given an ongoing investigation, a belief there was no crime does not create immunity from prosecution for false statements.

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

http://www.csmonitor.com/earlyed/early_usa102905b.htm

---

DIGENOVA: Well, first of all, I don't agree with some of these Republican folks who have been on television saying perjury is not sufficient here. If he can prove real perjury and an effort to mislead the grand jury, then he should bring indictments. And if that's all he brings, that's still legitimate and worthwhile and, in my opinion, would be worth bringing.

If he uses the espionage statute, I will be extremely surprised. Because, as you know, that statute was passed in 1917. It's designed to deal with the disclosure of national defense information. And it was in existence in 1982, when the Congress enacted the Agent Identities Protection Act because the Justice Department said that the espionage act does not apply to the identity of a covert agent.

So, if he's using that act, that will be a somewhat dubious use of criminal law. But on the obstruction side, if anybody lied to the grand jury, no matter who they are, or misled people or purposely tried to influence other witnesses, they should be charged. And, of course, whether or not they're guilty will be determined by a trial.

http://transcripts.cnn.com/TRANSCRIPTS/0510/28/bn.02.html

I didn't realize the SEC complaint proper (against MS & Bacanovic) had been concluded. Agreed that the charge of false statement was valid, and she was convicted for that.

I suppose a better example would be Bill Clinton for his false statements under oath in the Paula Jones civil case, which was settled/dismissed.

For the nth time, Libby's testimony was not material. It was not necessary one way or the other, for Fitzgerald to learn there was no crime.

Your test of materiality is tempting, but incorrect. Your conclusion is based on the fact that Plame was not covert, therefore the entire investigation was bogus. That defense was raised, albeit too late in the game, by Miller & Cooper in the amicus brief arguing for rehearing en banc before the US Circuit Court of Appeals. The Courts have not addressed that argument.

Whether Libby had or had not leaked her name--and whether he lied about it -- is all completely irrelevant as to whether a crime occurred.

The test of materiality is not "whether or not a crime occurred." In the instant case, the independent counsel was charged with fining out exactly that, and we agree, would have concluded "no crime." That does not excuse lying to the investigators. In the alternative, a person called to testify could assert what you do here, in lieu of testifying.

This is what Joe DiGenova says.

He said otherwise regarding Bill Clinton's perjury.

On May 21, 2004, federal prosecutors charged a Secret Service special agent with perjury for allegedly lying in the trial of Martha Stewart and her broker, Peter Bacanovic.

In this instance, the government witness, Larry Stewart, was accused of testifying falsely that he had personally examined Martha Stewart's broker's worksheet before he testified about the ink. Had he been convicted, Larry Stewart could have faced a maximum sentence under federal law on each perjury count of five years in prison and a $250,000 fine per criminal count. However, a federal jury in Manhattan found him not guilty on October 5, 2004.

http://gbr.pepperdine.edu/043/lying.html

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To state that the chief law enforcement officer of the United States has obstructed justice or committed perjury is to define the seriousness of the crime. Such seriousness is not lost because it was a civil proceeding or later dismissed by the trial court.

http://www.digenovatoensing.com/inthenews/robert_ray_0101.htm

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The main policy in this case is that courts very much do not want people to tell deliberate lies on the witness stand and, in general, take the view that defects in the steps that may bring witnesses to the stand are not adequate reason for tolerating the lies and foregoing punishment. A number of Supreme Court decisions reflect this general policy.

Thus, in Dennis v. United States, 384 U.S. 855 (1966), convictions for filing false non-Communist affidavits were sustained, the Court holding that it did not matter whether the underlying statute that required them violated the First Amendment. Id. at 867; see also Bryson v. United States, 396 U.S. 64, 72 (1969). Similarly, in United States v. Mandujano, 425 U.S. 564, 576, 584 (1976), and United States v. Wong, 431 U.S. 174, 176-78 (1977), the respective failures to give a grand jury witness a Miranda warning (in one case) or a warning as to the privilege against self-incrimination (in the other) were held not to excuse the subsequent perjury of the witness. Other cases are to the same effect.

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=1st&navby=case&no=022276

I suspect the notes came from others in the VP's office, turned over to WH counsel in response to orders from Gonzales, and forwarded to DoJ and independent counsel.

Huh? Where did I congratulate myself?

... in other words, the seriousness of the charge trumps the lack of material or testimonial evidence in this matter.

I'm not rendering an opinion as to the truth of completeness of the evidence offered. But if the facts are as set forth in the indictment, I think the case for false statements is valid and strong.

Of course, logic DOES in fact dictate that Woodward's disclosure UTTERLY alters the anlysis of the indictment's validity.

I disagree, and have attempted to show why I disagree. In short, I disagree because I think the guts of the prosecutor's assertion is that Libby didn't tell prosecutors that he knew for a fact that Plame worked for the CIA. Instead, Libby tried to paint himself as just another Joe in the rumor mill. With the charge being of that nature, it matters not whether the other players knew of Plame from other sources, from Libby, or even if everybody but Libby knew before "the story" started cooking in the press.

Fitz was charged with investigating whether or not there was a violation of 50 USC 421 or 18 USC 793. I don't believe the evidence supports a conclusion that there wasa violation of either; which put me, Toensing and DiGenova in agreement.

If there is no crime, how is Libby's testimony material?

The testimony is material in that it goes to one of the elements of the aforementioned statutes. As to 50 USC 412, the element that fails in "covert," as Plame was not, and as to 18 USC 793, there are numerous missing elements.

If it is not material, how is it perjury?

The testimony is material in that it goes to the element of whether or not a government agent disclosed Plame's identity.

can you name some other instances where someone had been indicted for perjury for similar non-material testimony?

Martha Stewert. I could find others, I'm sure, with research.

Lastly, why is this so important to you?

It's not important, I just find it interesting.

Do you think you have a higher regard for the rule of law than say, Joe DiGenova?

No.

The big deal is he never told investigators of his independent inquiry to the CIA. The indictment alleges that Libby tried to lead investigators away from that.

Is it because he said he first heard it from a reporter? Or did he say he didn't talk about it publicly until he heard it from a reporter. If that is the conflict, whew.

It's that he tried to convince investigators that the only source of his "knowledge" was the reporter-fed rumor mill. So reads the indictment.

Neither, actually.

The charge is that whatever Libby told Russert, true or not; he gave prosecutors a different version of what he told Russert, true or not.

Its that there is an allegation that Libby lied to prosecutors when he stated what he told reporters, when those statemenst were, in fact, untrue.

No, it's not that. The "lie" to prosecutors is the difference between what he said he told reporters vs. what he actually told reporters. The indictment is clear on its face.

The prosecutor says Libby's testimony lead them to think that Libby never called the CIA to learn of Plame's status.

Only because you make up a question that isn't asked in the indictment.

You cited paragraph 32.a., which describes Libby's testimony. Paragraph 33.a. expresses directly why your hypothetical isn't relevant, Libby is charged with making misleading statements to the GJ.

33. It was further part of the corrupt endeavor that at the time defendant LIBBY made each of the above-described materially false and intentionally misleading statements and representations to the grand jury, LIBBY was aware that they were false, in that:

a. When LIBBY spoke with Tim Russert of NBC News on or about July 10, 2003:

i. Russert did not ask LIBBY if LIBBY knew that Wilson's wife worked for the CIA, nor did he tell LIBBY that all the reporters knew it; and

ii. At the time of this conversation, LIBBY was well aware that Wilson's wife worked at the CIA; in fact, LIBBY had participated in multiple prior conversations concerning this topic, including on the following occasions:

• In or about early June 2003, LIBBY learned from the Vice President that Wilson's wife worked for the CIA in the Counterproliferation Division;
• On or about June 11, 2003, LIBBY was informed by a senior CIA officer that Wilson's wife was employed by the CIA and that the idea of sending him to Niger originated with her;
• On or about June 12, 2003, LIBBY was informed by the Under Secretary of State that Wilson's wife worked for the CIA;
• On or about June 14, 2003, LIBBY discussed "Joe Wilson" and "Valerie Wilson" with his CIA briefer, in the context of Wilson's trip to Niger;
• On or about June 23, 2003, LIBBY informed reporter Judith Miller that Wilson's wife might work at a bureau of the CIA;
• On or about July 7, 2003, LIBBY advised the White House Press Secretary that Wilson's wife worked for the CIA;
• In or about June or July 2003, and in no case later than on or about July 8, 2003, LIBBY was advised by the Assistant to the Vice President for Public Affairs that Wilson's wife worked for the CIA;
• On or about July 8, 2003, LIBBY advised reporter Judith Miller of his belief that Wilson's wife worked at the CIA; and
• On or about July 8, 2003, LIBBY had a discussion with the Counsel to the Office of the Vice President concerning the paperwork that would exist if a person who was sent on an overseas trip by the CIA had a spouse who worked at the CIA;

The prosecutor says Libby was lying to investigators and to the GJ.

Maybe you can explain the relevance you see in an allegation that Libby was lying to reporters. Lying to reporters is not illegal. The charge, in a conclusory fashion as stated by the prosecutor, is lying to investigators and the GJ. That is what the words in the indictment say.

Indict me then, if you can ;-)

Cboldt MOONS kabar - BIGTIME

Based upon your statement, I would like you to demonstrate how this isn't true (if you believe it isn't) rather than state "he isn't being charged with lying to reporters" in a conclusory fashion.

Without getting into the truth of the allegations in the indictment, it (the indictment) does not ring of the hypothetical story you paint regarding your hypothetical married life.

If you can't see the difference on reading the indictment, then you have reading comprehension issues.

Sue me.

I disagree, but you've worn me out. Have it your way.

The endeavor is odd. I am puzzled at why the WH endorsed and continues to endorse the investigation as "serious." Why not point out the obvious? If someone is known to work at the CIA, they are not covert.

But if you read the charge from the DoJ to the independent counsel, you will see why the focus was on government actors.