October 2, 2005


Role of Rove, Libby in CIA Leak Case Clearer (Jim VandeHei and Walter Pincus, October 2, 2005, Washington Post)

What remains a central mystery in the case is whether special prosecutor Patrick J. Fitzgerald has accumulated evidence during his two-year investigation that any crime was committed. [...]

Many lawyers in the case have been skeptical that Fitzgerald has the evidence to prove a violation of the Intelligence Identities Protection Act, which is the complicated crime he first set out to investigate, and which requires showing that government officials knew an operative had covert status and intentionally leaked the operative's identity.

But a new theory about Fitzgerald's aim has emerged in recent weeks from two lawyers who have had extensive conversations with the prosecutor while representing witnesses in the case. They surmise that Fitzgerald is considering whether he can bring charges of a criminal conspiracy perpetrated by a group of senior Bush administration officials. Under this legal tactic, Fitzgerald would attempt to establish that at least two or more officials agreed to take affirmative steps to discredit and retaliate against Wilson and leak sensitive government information about his wife. To prove a criminal conspiracy, the actions need not have been criminal, but conspirators must have had a criminal purpose.

Lawyers involved in the case interviewed for this report agreed to talk only if their names were not used, citing Fitzgerald's request for secrecy.

One source briefed on Miller's account of conversations with Libby said it is doubtful her testimony would on its own lead to charges against any government officials. But, the source said, her account could establish a piece of a web of actions taken by officials that had an underlying criminal purpose.

Conspiracy cases are viewed by criminal prosecutors as simpler to bring than more straightforward criminal charges, but also trickier to sell to juries. "That would arguably be a close call for a prosecutor, but it could be tried," a veteran Washington criminal attorney with longtime experience in national security cases said yesterday.

Other lawyers in the case surmise Fitzgerald does not have evidence of any crime at all and put Miller in jail simply to get her testimony and finalize the investigation. "Even assuming . . . that somebody decided to answer back a critic, that is politics, not criminal behavior," said one lawyer in the case. This lawyer said the most benign outcome would be Fitzgerald announcing that he completed a thorough investigation, concluded no crime was committed and would not issue a report.

Who knew discreditting Mr. Palme by revealing the truth was a criminal act?

Posted by Orrin Judd at October 2, 2005 8:44 AM

I would appear that the criminality of truth, among the progressive elements of the planet, is precisely what Orwell, both recognized and anticipated.

Posted by: Barry Meislin at October 2, 2005 9:21 AM

I really hope that this is just wishful thinking by the likes of Pincus. B/c otherwise, this is absolutely disgraceful on the part of Fitzgerald.

Posted by: Jim in Chicago at October 2, 2005 11:03 AM

Wishful thinking by the left - still trying to imagine a way they can come out smelling like a rose.

Or else, Fitzgerald is hoping to destroy civil society by criminalizing political speech and turning politics into war. If so, bad choice of prosecutor by John Ashcroft. He might as well have chosen Ronnie Earle.

Posted by: pj at October 2, 2005 11:57 AM

What a waste of time and money. I think Miller's testimony will reveal nothing and that is why she, complicit with the NYT, went to jail; essentially to hide that fact until after some reputational damage had been accomplished. Fitzgerald called their bluff.

That said I must acknowledge: I really don't know what I'm talking about.

Posted by: Genecis at October 2, 2005 11:57 AM

Lawyers involved in the case interviewed for this report agreed to talk only if their names were not used, citing Fitzgerald's request for secrecy.

So the only thing we really know about the sources for this article is that they are liars who broke their word.

Posted by: David Cohen at October 2, 2005 12:49 PM

Isn't that all we need to know, David?

Posted by: obc at October 2, 2005 1:28 PM

Does Walter Pincus really believe that defense lawyers had 'extensive' conversations with Fitzgerald about anything other than their clients' direct legal situations (and options)? If so, he's dumber than Judith Miller.

A 'web of actions' leading to criminal activity? He must think he's J. Jonah Jameson, using those words.

Posted by: jim hamlen at October 2, 2005 10:00 PM