November 4, 2005


Leak Case Prosecutor Raises Questions That Demand Answers (Ronald Brownstein, October 31, 2005, LA Times)

The indictment reports that "on or about July 12, 2003," Libby flew with "the vice president and others" to and from Norfolk, Va., on Air Force Two. "On his return trip, Libby discussed with other officials aboard the plane what Libby should say in response to certain pending media inquiries, including questions from Time reporter Matthew Cooper," the indictment states.

On that very afternoon, the indictment continues, Libby spoke about Wilson by telephone with Cooper and Judith Miller of the New York Times.

When Cooper asked Libby whether he had heard that Wilson's wife was involved in sending him on the trip, "Libby confirmed to Cooper, without elaboration or qualification, that he had heard this information too."

With Miller, Libby discussed "Wilson's wife, and that she worked at the CIA."

By recounting the events in that sequence, Fitzgerald implies that Libby's conversations with the reporters followed a decision in that discussion on Air Force Two to disseminate the information about Plame. But Fitzgerald never says what happened in that discussion or even who the participants were.

Presumably Libby would not need approval from his subordinates to discuss Plame with reporters. Perhaps he was seeking their counsel during the discussion on the plane. But it's also conceivable that Libby was seeking authorization from the one person in the office who was his superior: the vice president.

Again, Fitzgerald may know. But he's not telling.

On both these issues — the conversation on Air Force Two and the discussion between Libby and Official A — the indictment strongly hints at a broader effort within the administration to disclose Plame's identity, but does not level charges (such as conspiracy) to that effect. "You could not put [the information] in and not charge, or put it in and charge, but the puzzling thing is to put it in and not charge," David Boies, one of the nation's leading trial lawyers, said after reading the indictment.

Why would a prosecutor present a set of facvts and not charge someone on their basis? Because the facts don't allege a crime. The stuff Mr. Brownstein wants to know is an interesting media story, but not a criminal matter.

Overcharged: AN INDEFENSIBLE INDICTMENT (Jeffrey Rosen, 11.04.05, New Republic)

The Fitzgerald indictments are an embarrassing confirmation of the old Washington rule that, when special prosecutors can't prove a crime, they indict the target for obstructing the investigation. Far from being typical behavior, indicting suspects for nothing more than false statements or perjury is a vice largely restricted to special prosecutors and independent counsels. And, although Libby's alleged lies to protect his boss may appear more serious than Bill Clinton's self-interested lies about sex, neither Clinton nor Libby prevented the special prosecutor from proving an underlying crime. In fact, there's strong reason to conclude that no underlying crime was committed. Unlike the Starr investigation, moreover, the Fitzgerald investigation represents a disaster for the First Amendment and may do long-lasting damage to political discourse in Washington. [...]

In their exemplary brief filed in March 2005, a consortium of news organizations argued that there were serious questions about whether Plame qualified as a covert operative under the law. She was working at a desk job in Langley in July 2003, when Robert Novak first revealed her name, and arguably had not been assigned to duty outside the United States in the past five years, as the law requires. Moreover, there was little evidence that the government was taking "affirmative measures" to conceal her identity. Given the continuing uncertainty about Plame's status, it's unlikely that Libby both knew she was a covert agent in 2003 and disclosed her identity intentionally. (As Fitzgerald noted at his press conference, negligent or accidental disclosures are not illegal.) And, even if you assume the worst about Libby, it's hardly obvious that the question of who first told him that Plame worked for the CIA--was it, in other words, his government colleagues or NBC's Tim Russert?--would cast much light on whether he broke national security law.

In his press conference, Fitzgerald abruptly shifted gears when questioned about why he brought perjury and obstruction charges without finding an underlying violation of the law.

Posted by Orrin Judd at November 4, 2005 10:18 AM


It's really not even that interesting of a story. It's more of a non-story, but I think you've mentioned that several times.

Posted by: Bartman at November 4, 2005 12:54 PM

Some editorial in USA Today (Al Neuharth? - I don't remember) said that Bush and Cheney would give Libby the moon to plead guilty and make the whole thing go away.

I think the press will soon realize that if several of their leading lights (plus Miss Run Amok) have to be deposed and actually (gasp!) testify in open court, they will be wishing the whole thing goes away. How will Tim Russert run his show if he is scheduled in court the next morning? What will NBC do if two of its stars have conflicting recollections? And what will happen when Joe and Valerie are called (as they will be, if Libby's lawyers are really smart). And who will certify Plame's actual status - George Tenet? The CIA accounting manager?

Posted by: jim hamlen at November 4, 2005 1:50 PM

It would far better for Bush to give Libby and Rove a blanket pardon for anything "criminal" Fitzgerald can conjure up from the grand jury testimony and then put them back to work.

Posted by: erp at November 4, 2005 3:25 PM


I read that USA Today editorial too, I think it was unsigned btw.

I was astounded by the ignorance of the writer. It was written as if the Senate etal hadn't already investigated the pre-war intelligence and come up with no evidence that the administration had done anything wrong, no pressure etc. I mean, do these people live on another planet or what. This what, round 3 of flinging these charges around?

Not to mention, Libby's already plead innocent. If the WH didn't want a trial, he'd have plead guilty, no?

Folks have been throwing around the notion that Libby made some of the statements before the grand jury for which he's been indicted b/c he didn't want to bring Cheney's name into it in an election year That is, tho Cheney's telling him of Palme was perfectly legal, it would've looked bad.

I wonder however if Libby didn't bait Fitz into indicting him, hoping for a trial to give the administration the opportunity to really get at Wilson, Palme, the media, and the CIA.

Posted by: Jim in Chicago at November 4, 2005 10:53 PM

Jim in Chicago:

That's a deeper game than the Bush admin has so far been inclined to play.

In fact, that's the kind of "wheels within wheels" thinking that leaves people astounded and puzzled when Bush does exactly what he said he intended to do: No feints or misdirection.
(Even when it might do some good).

Posted by: Michael Herdegen at November 5, 2005 4:08 AM