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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, October 29, 2005

Responses to Libby Defenders

If the only defenses which Lewis Libby is going to have at trial are the ones which have so far been circulated online (including in the comments section to my last post), he is in serious trouble.

The excuses (both legal and political) being made on his behalf, at least thus far, rest upon clear factual and/or legal distortions, and do not even appear to be intellectually honest. Here is the summary of (and responses to) the most common Libby defenses:

(1) Nothing Libby did with regard to the “leak” itself was illegal because Valerie Plame was not a “covert” agent.

Whether Plame was “covert” or not, the fact that she was employed by the CIA was indisputably classified, and the law prohibited Libby from doing exactly what he did – i.e., disclosing that classified information to those not authorized to receive it (the reporters).

The Indictment makes absolutely clear that: (a) Plame’s employment with the CIA was classified (see Paragraph 1(f)): “At all relevant times . . . Valerie Wilson was employed by the CIA, and her employment status was classified”); and (b) Libby disclosed this classified information to reporters. Although he was not indicted on that charge, he clearly engaged in that illegal conduct.

It is illegal to disclose classified information to individuals who are not cleared to receive it. Period. While there is a specific 1982 criminal statute which specifically criminalizes the outing of overseas covert CIA agents and which does require that the agent be covert, the general laws prohibiting unauthorized disclosure of classified information merely require that the disclosed information be classified (which Plame's CIA employment at the time indisputably was).

(2) It is now clear that Libby committed no underlying crime; his only crime was the cover-up.

Just because someone isn’t indicted for a crime doesn’t mean they didn’t commit the crime, nor does it mean that the prosecutor can't prove the crime. The absence of a specific charge in an indictment does not mean that the defendant did not commit that crime.

There are lots of reasons relating to prosecutorial discretion as to why a Prosecutor would opt not to indict someone on a particular charge even where the Prosecutor believed that crime was committed and he could prove it.

Here, there are many potential reasons why Fitzgerald may have opted not to seek an indictment on the underlying crime (all of which he hinted at or expressly stated in his Press Conference):


(a) Fitzgerald has Libby so completely nailed on these serious obstruction and perjury counts that he did not need to cloud the indictment with more difficult-to-prove, complex charges;

(b) Fitzgerald feels he lacks all of the evidence necessary to prove the requisite intent on the "leaking" charges precisely because Libby’s lying and obstruction prevented him from obtaining clear evidence in that regard;

(c) Fitzgerald has general policy concerns about the Espionage Act, the statute which arguably criminalizes the disclosure of classified information, becoming tantamount to the odious States Secret Act in England, and he opted not to bring charges under the Espinoage Act due to those policy concerns; and,

(d) Fitzgerald is hoping to induce Libby into cooperating as part of a plea bargain and intends to hold over his head the threat of additional indictments relating to the leak itself as leverage in those negotiations.

Any of these are perfectly legitimate (and hardly unusual) reasons for Fitzgerald not to have sought indictments directly arising out of the outing of Plame. In all events, the lack of such an indictment (thus far) is far from a declaration by Fitzgerlad that no crime was committed when Plame’s CIA employment was disclosed.

To use the absence of an indictment as some sort of proof that Libby was found to be innocent of wrongdoing concerning the “leak” -- or that no crime was committed when her employment was leaked -- is simply dishonest.

If anything, the Indictment implicitly alleges that Libby did commit a crime by leaking her CIA employment to reporters because, at all times, that information was “classified.”

(3) Libby had no reason to lie or cover-up because he didn’t commit an underlying crime in the first place.

When Libby was interviewed by the FBI beginning in October, 2003, and when he testified in front of the Grand Jury beginning in March, 2004, he obviously didn’t know that Fitzgerald, in October 2005, would ultimately refrain from indicting on the underlying charges. To the contrary, the foremost fear in Libby's mind at that time had to be that his disclosure of classified information to reporters would be discovered.

After all, that was the charge which prompted the investigation and led to the appointment of Fitzgerald. Libby knew that – and he also knew that he did indeed disclose to several reporters the indisputably classified information that Plame worked for the CIA. He had every reason to want to cover that up.

Strictly on a legal level, at the time he was speaking to the FBI and testifying in front of the Grand Jury, Libby had every reason to fear that what he did in disclosing Plame’s CIA employment to reporters was illegal. It is easy to understand why he would want to lie about the source of the information – if reporters already had the classified information and it was reporters who passed it on to Libby, then that would be a perfect, complete defense to the potential crime that was being investigated.

By stark contrast, if Libby told the truth about what happened – i.e., if he admitted that he obtained the classified information of Plame's employment from the CIA and from Cheney and then disseminated it to reporters – that would be a confession to actions which quite likely did, indeed, constitute a crime.

It makes perfect sense that he’d want to cover up that conduct by lying about it. He lied about it for the same simple reason all common perjurers in that situation lie: because they are petrified that if the truth were known about what they did, they will be convicted and imprisoned. And so they lie in order to prevent others from discovering what occurred.

Beyond purely legal considerations, Libby also had ample motivation to lie for political reasons. What he did was facially ugly and politically damaging. Legalities aside, he learned from the Vice President and the CIA the classified information that Wilson’s wife worked for the CIA and then disclosed that information to reporters.

The fact that he first learned from the Vice President dragged Cheney into this scandal (as a political matter, if not a legal one). Worse, in the Fall of 2003, Scott McClellan, succumbing to increasing media questioning, was forced to emphatically and expressly assure the public that Libby (among others) had no role in the disclosure of Plame’s CIA employment, independently providing motivation for Libby to avoid discovery of what he really did.

It is hardly difficult to imagine Libby -- when talking to the FBI and the Grand Jury -- wanting desperately to avoid these politically damaging revelations, especially as they pertained to his boss. He thus had ample motivation, both legal and political, to lie both about the source of his knowledge that Plame worked for the CIA as well as what he told reporters about this.

(4) This is about nothing more than Libby’s understandably getting a few dates confused well after the events occurred.

Even the people advancing this excuse can’t possibly believe it. What is important is not the date on which Libby learned of Plame’s employment with the CIA (i.e., June 4 v. June 14 v. July 10). If it were only a failure to recall dates accurately, there would almost certainly be no charges.

What matters here is the means by which Libby learned of Plame’s employment – whether it was simply by having reporters pass unconfirmed rumors to him (as he falsely claimed), or whether he learned this information from multiple high-level Government sources who confirmed it to him as fact (i.e. whether he learned it due to his access to classified government secrets).

No rational or fair person could find the suggestion credible that Libby simply forgot that he learned of Plame’s CIA employment from other government officials. This excuse could be credible if he had learned about Plame's employment during one casual or routine conversation in which it was discussed in passing. But that is not what happened – not even close.

The Joe Wilson/Valerie Plame matter was one of great importance and prominence for Libby throughout June and early July. As the Indictment documents, he was told about Plame not on one occasion, but on multiple occasions.

And he wasn’t hearing it from mid-level government bureaucrats. He heard it first from the Vice President of the United States (early June), then from a “senior CIA officer” (June 11), then from the “Under Secretary of State” (June 12), then during a discussion with a “CIA briefer” (June 14), and finally from the Counsel to the Office of Vice President (July 8).

That's four separate ocassions when Libby learned about Plame's CIA employment from high- level officials, and one ocassions when he learned it as part of a CIA briefing.

Plainly, the subject of Plame’s CIA employment was something that was being discussed in the Vice President’s Office repeatedly and systematically over the course of five (5) weeks. Libby learned this information as fact from executive and intelligence officials at the highest levels, including his boss, the Vice President.

Just as importantly, Libby not only repeatedly heard from other Bush officials about Plame’s employment, he himself repeatedly disseminated that information, including to the Administration’s Press Secretary on July 7, and, of course, to reporters on multiple occasions beginning in June.

The notion, then, that Libby simply “forgot” that he had this information confirmed as fact by multiple, classified Government sources -- and that he instead simply “mis-remembered” and mistakenly thought that he only heard it from a couple of reporters as rumors – is facially incredible, insultingly so. There was a concerted effort underway by multiple Bush officials to find out about Wilson and his wife, and Libby, being at the center of that effort, did not “forget” that it happened.

And, contrary to the excuses being made on Libby’s behalf, there was not all that much time that elapsed between the events themselves and the first lies about them told by Libby. In fact, there was very little time which elapsed.

The first allegedly false statement he gave to the FBI occurred on October 14 (see COUNT THREE, Paragraph 2) – a mere three to four months after the relevant events occurred. When one notes additionally that there was ongoing and quite public uproar over the Plame disclosures during that time period (which is what prompted the investigation in the first place), it is simply absurd to assert that the matter of Plame’s CIA employment was some inconsequential little detail which, particularly during that time period, could simply have slipped Libby’s mind.

What happened here appears quite clear. Libby knew he had obtained the information about Plame’s CIA employment from high-level Bush officials and intelligence officers and that, as a result, it would certainly be slimy, and quite possibly illegal, for him to have disclosed this classified information to reporters. As a result, he did not want it known (understandably so) that he did that, and so he lied to the FBI (and then the Grand Jury) by claiming that he learned of Plame’s CIA employment from reporters, and not from classified Government sources.

The real mystery is why so many people seem to be pretending that Libby’s motives to lie are non-existent or perplexing. In disclosing to reporters the classified information of Plame's CIA employment, what Libby did was wrong and almost certainly illegal. He lied about it because he did not want it known that he did it. What is confusing about that?

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