I think Fitzgerald slipped up at the press conference yesterday and revealed something "outside the four corners" of Libby's indictment. He said (emphasis added):
And as you sit back, you want to learn: Why was this information going out? Why were
people taking this information about Valerie Wilson and giving it to reporters? Why did
Mr. Libby say what he did? Why did
he tell Judith Miller three times? Why did
he tell the press secretary on Monday? Why did
he tell Mr. Cooper? And was this something where
he intended to cause whatever damage was caused?
Or did they intend to do something else and where are the shades of gray?
Notice that he uses singular ("Mr. Libby" and then four repeated uses of "he") for facts alleged in the indictment, but plural ("people" and "they") when he raises the issue of motive. I admit I'm stretching here but might his choice of plural when he speaks to motive have betrayed his suspicions of a conspiracy?
In the extended I grow this thread into a net around our President of Vice. Follow me...
I'm not a lawyer, but according to
FindLaw:
A criminal conspiracy exists when two or more people agree to commit almost any unlawful act, then take some action toward its completion. The action taken need not itself be a crime, but it must indicate that those involved in the conspiracy knew of the plan and intended to break the law.
So can Fitzgerald prove that Libby agreed with at least one other person to reveal classified information? (For contrary arguments, see
this diary by Daxman and
this diary by grapes.)
First he has to prove that "this information about Valerie Wilson" was classified, and I think he is certain he can do that. For starters there's item 9 of the indictment:
On or about June 12, 2003, LIBBY was advised by the Vice President of the United States that Wilson's wife worked at the Central Intelligence Agency in the Counterproliferation Division. LIBBY understood that the Vice President had learned this information from the CIA.
Josh Marhsall points out that "The Counterproliferation Division (CPD) is part of the CIA's Directorate of Operations, i.e., not the Directorate of Intelligence, the branch of the CIA where 'analysts' come from, but the DO, where the spies, the 'operatives', come from." Certainly Libby was familiar with the CIA's two directorates. And as the indictment notes Libby "was obligated by applicable laws and regulations, including Title 18, United States Code, Section 793, and Executive Order 12958 (as modified by Executive Order 13292), not to disclose classified information to persons not authorized to receive such information, and otherwise to
exercise proper care to safeguard classified information [my emphasis] against unauthorized disclosure."
Then there's item 13 of the indictment:
Shortly after publication of the article in The New Republic, LIBBY spoke by telephone with his then Principal Deputy and discussed the article. That official asked LIBBY whether information about Wilson's trip could be shared with the press to rebut the allegations that the Vice President had sent Wilson. LIBBY responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line.
Was the "information about Wilson's trip" that his wife worked at the CIA? If it wasn't, what other information would "rebut the allegations that the Vice President had sent Wilson"? Absent an alternative explanation this is evidence that Libby knew
specifically that Valerie Wilson's employment at the CIA was classified.
The indictment states as fact that Valerie Wilson's employment at the CIA was classified, in Count 1, item 1f:
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.
And Fitzgerald repeatedly asserts that fact in the
press conference, most tellingly in this exchange:
QUESTION: Can you say whether or not you know whether Mr. Libby knew that Valerie Wilson's identity was covert and whether or not that was pivotal at all in your inability or your decision not to charge under the Intelligence Identity Protection Act?
FITZGERALD: Let me say two things. Number one, I am not speaking to whether or not Valerie Wilson was covert. And anything I say is not intended to say anything beyond this: that she was a CIA officer from January 1st, 2002, forward.
I will confirm that her association with the CIA was classified at that time through July 2003. And all I'll say is that, look, we have not made any allegation that Mr. Libby knowingly, intentionally outed a covert agent.
FITZGERALD: We have not charged that. And so I'm not making that assertion.
Fitzgerald has not charged that, but I believe he has a strong case that Libby leaked what he knew was classified information.
So why didn't he charge Libby with the leak? A reader of Andrew Sullivan's blog
addresses that question:
I don't know what Fitz knows. But I think he is one inch from prosecuting the leak itself - at least his public comments leave the impression that he's pissed about it - and the only thing holding him back is that he's afraid he can't prove state of mind....
So why not charge him with the leak? Because Fitz has Libby nailed on the 5 counts from today's indictment. Just nailed. So he's bringing Libby in on those charges, they're going to talk some turkey, and Fitz is going to see if Libby will talk, maybe about VP, maybe about Official A (who's clearly Rove), or maybe about the VP's moles at State and in the CIA. Offer some carrots - maybe no jail - but if Libby refuses, then Fitz brings down the espionage or intelligence act charges. Libby has nowhere to go, and Fitz knows it. In my view, he's going to try to exploit that opening before wrapping this thing up."
What's all this mean? Well, seems like Fitz has a pretty strong case for the Espionage Act, and if Plame met the objective standards in the Intelligence Act, for that one too. And it seems like the fact that Libby lied repeatedly is very strong evidence of a culpable state of mind, belying any claim that he didn't "know" the info was classified or that divulging it was wrong. Add that to the very specific allegation in the indictment that he knew exactly where she worked, and there it is.
That makes sense - that Fitzgerald would indict on what is most proveable but withhold the leak charges in an effort to get Libby to open up.
And we have Fitzgerald's answer to the question also. When asked at the press conference why "giving classified information concerning the identity of a CIA agent to some individuals who were not eligible to receive that information .... does not, in and of itself, constitute a crime" Fitzgerald replied:
You need to know at the time that he transmitted the information, he appreciated that it was classified information, that he knew it or acted, in certain statutes, with recklessness.
And that is sort of what gets back to my point. In trying to figure that out, you need to know what the truth is.
So our allegation is in trying to drill down and find out exactly what we got here, if we received false information, that process is frustrated. ....
[T]he harm in the obstruction crime is it shields us from knowing the full truth."
Fitzgerald's alleging that Libby is preventing them from gaining sufficient certainty to charge anyone for the leak. And perhaps he's revealed something of his suspicions when he refers to recklessness. (Recklessness isn't an out for Libby; Fitzgerald is saying that whether or not Libby was reckless only affects which statutes were violated.) Fitzgerald uses the word again later:
But the need to get to the bottom of what happened and whether national security was compromised by inadvertence, by recklessness, by maliciousness is extremely important.
Here we have the three possible reasons for the leak: inadvertence, recklessness, or maliciousness. If Fitzgerald knew which one of those it was, he seems to be saying, he could charge Libby with the leak. I think he could charge Libby with the leak since none of those are exculpatory
unless Libby was acting under orders. Those orders would be part of a conspiracy and would have had to come from Cheney.
Further support for this strand of thought is offered by Josh Marshall, who finds a hint of conspiracy in the indictment itself. After quoting page 8, items #22-23 about Libby's discussing with officials on board Air Force 2 how to handle inquires from Times reporter Matthew Cooper he writes:
So [Libby] planned what to do in advance with other members of the Vice President's staff. And what they seem to have agreed is that he would confirm Plame's identity, since that is in fact what he proceeded to do.
The Washington Post
asserts: "Apart from Libby, only press aide Catherine Martin is known to have accompanied Cheney on that flight." So if Josh is right, Libby conspired with one of those two, maybe both.
So there seems to be evidence of a conspiracy in the indictment, and it points to Cheney. Fitzgerald explained how Libby's obstruction is frustrating the investigation. So the question is: How does a prosecutor prove a conspiracy?
Ahhh. As it happens this is something Fitzgerald has experience with in his indictment of one-time Governor of Illinois, George Ryan:
The investigation, dubbed Operation Safe Road, initially focused on bribes exchanged for licenses for unqualified truck drivers when Ryan was secretary of state. It expanded into a broader investigation of political corruption that snared several of his top aides and associates.
"It was not opened up as an investigation of George Ryan, it was opened up as an investigation of licenses for bribes at the secretary of state's office," Fitzgerald said.
Interesting how the investigation of licenses for bribes ended with the
indictment of the Governor for "racketeering
conspiracy, mail fraud, making false statements to investigators, tax fraud and filing false tax returns" (emphasis added). How did that happen?
[P]rosecutors won convictions against two of his top aides, including his chief of staff ...
So
Fitzgerald got a governor on a conpiracy charge through his chief of staff? Hmmm. How'd he do that?
Here's a part of the timeline in the Ryan case:
- March 9, 1993: After allegations of license selling, law enforcement officials raid the Libertyville driver's license station. Dean Bauer, inspector general for then-Secretary of State George Ryan, allegedly removes briefcase full of cash and campaign fund-raising receipts during raid.
- Feb. 1, 2000: Bauer is indicted on federal charges of thwarting investigations into and hiding evidence of scandals in the secretary of state's office to save Ryan from political embarrassment.
- Feb. 9, 2000: Bauer pleads innocent.
- Aug. 3, 2000: Bauer pleads innocent to revised federal charges alleging he covered up evidence of corruption to protect Ryan's political interests.
- Jan. 17, 2001: Bauer pleads guilty to obstructing justice in the license investigation.
- Feb. 7, 2002: The Chicago Tribune reports that the federal grand jury investigating the licenses-for-bribes case has subpoenaed records of Ryan's campaign fund, seeking records about the discovery of an extra $156,000 in the fund, which Ryan calls an accounting error.
- April 2, 2002: The U.S. Attorney indicts Gov. George Ryan's campaign and two top former aides, Scott Fawell and Richard Juliano, on charges including racketeering and mail fraud for allegedly using state resources to benefit the political campaigns of Ryan and others.
- Dec. 18, 2002: Prosecutors file documents alleging that Ryan was present when Fawell gave orders to destroy potential evidence and that Ryan took part in a meeting where an employee was ordered to do political work on state time.
- May 28: Alexandra Coutretsis, also known as Andrea Prokos, is indicted on charges of lying to a federal grand jury in the bribes-for-licenses investigation. A former top aide to Fawell, she followed Fawell when he became manager of Ryan's 1998 campaign for governor.
- June 4: Coutretsis pleads innocent.
- June 30: Fawell sentenced to 6 1/2 years in prison.
- Dec. 3: Coutretsis pleads guilty to perjury and agrees to become a federal witness. Prosecutors announce fresh charges are coming in their 5 1/2-year investigation of government corruption.
- Dec. 17: Ryan indicted on charges of taking payoffs, gifts and vacations in return for government contracts and leases while he was secretary of state.
I've left out other indictments and events to focus on the fact that Fitzgerald's team apparently turned successive indictees to climb to the top of the network - Ryan himself. The score card for that one reads "Bauer to Campaign Fund to Fawell to Coutretsis to Ryan." Admittedly each case is different, but clearly Fitzgerald knows how to use indictments to get conspirators to talk. Libby has to know he's up against one of the best.
Libby's no fool either, but Libby failed to protect himself from perjury, false statements and obstruction charges. Either there was a conspiracy to leak Valerie Wilson's identity or Libby made the decision on his own; and obviously Libby knows which is the case. His dilema now is how to avoid getting charged for the leak, and his choices are to keep silent and hope Fitzgerald doesn't charge him for it, or reveal the conspiracy. If he cooperates and reveals the conspiracy he can expect a lighter sentance. There don't appear to be any other choices.
Libby needs to think about this too: there other paths to Cheney than Libby, and being the second person to talk is a lot less valuable to Fitzgerald. Consider:
- Someone is telling Fitzgerald about conversations that tie Libby to Cheney because the indictment asserts details about the content of the June 12 conversation on Air Force Two and that Libby was "advised by the Vice President of the United States that Wilson's wife worked at the Central Intelligence Agency in the Counterproliferation Division." What more did these people say, and what more will they say under oath at Libby's trial?
- What did and will ex-officials such as Catherine Martin, Ari Fleischer and George J. Tenet say?
- What did and will the reporters say? Clearly Libby expected they would stay silent - else why spin a story that placed all the blame on reporters?
- What if the next indictee isn't Cheney, but rather someone that Libby isn't so eager to go to prison for?
- Now that Libby has resigned, there's very little that Cheney can do for him. Libby has got to wonder what Cheney might do to him if called to testify. This has occurred to others, as the New York Times reports: "Many Republicans say that the vice president, already politically weakened because of his role in preparing the case for war, could be further damaged if he is forced to testify at Mr. Libby's trial about the infighting over intelligence that turned out to be false." Again, the question for Libby isn't how loyal he is to Cheney, it's how loyal Cheney is to him.
Additionally, if as I suspect the impetus for the full-court press against Joe Wilson was to obscure the administration's role in the Niger forgeries,
developments in that investigation could make an end-run around Libby's "firewall" for Cheney. That investigation appears to touch Stephen J. Hadley, Doug Feith, Harold Rhode, Larry Franklin (who's
indicted for passing intelligence to AIPAC) and Michael Ledeen. (At the moment this investigation seems to be
more of a cover-up, but the
pot is being stirred.) What if one of these people chose to talk?
People speak casually about Libby "falling on his sword" but it can't look that simple to Libby. Fitzgerald seems to have a very tight case based only on what's in the indictment (but I'm no lawyer). And unless Cheney is serving as Libby's personal criminal lawyer, I doubt that Libby is getting advised to fall on a sword. So Libby has these choices:
- Keep his mouth shut until Bush can pardon him.
- Keep his mouth shut and likely spend several years in prison, hoping to earn a living afterwards from speaking engagements and maybe book or movie royalties, and taking comfort from the knowledge that he kept Cheney out of prison.
- Keep his mouth shut and likely spend several years in prison, where he can watch Cheney get indicted anyway.
- Talk to the prosecutor. I'm sure Fitzgerald can get a new Grand Jury if Libby starts talking.
So how 'bout it Scooter: would you rather be
inside the "four corners" of the next indictment, or
outside?
(I found this image on the net searching for "four corners" and origami. It's exactly the image I had in mind.)
__________
BTW, was anybody else amazed by Fitzgerald's ability to recite details without seeming recourse to notes? If you thought his performance Friday was amazing, you should watch him narrate the details of the Ryan indictment (the video - which requires Windows Media Player - can be got to from this page; the transcript is also there). Dates, people, places, corporations, dollar amounts, he's got it all down.
Update [2005-10-30 17:04:00 by imagine]: Corrected date of Air Force Two conversation to "June 12" from "July 12" in the list of points Libby needs to consider (thanks Sherlock Google!) and added link to grapes' diary.
Update [2005-10-30 23:15:00 by imagine]: Just read
this article in the Washington Post where at the end it quotes several people who know Libby to the effect that he's not one to "play footsie with reporters," as one of them put it. It then closes with
But journalists he spoke to testified that Libby did just that -- that it was Libby who tipped them off to Plame's identity.
"I know he has a story. Believe me, he'll answer," Matalin said. "People who wish the best for Scooter . . . have to take a step back. It's so completely inconsistent with Scooter's work ethic, his intelligence and his history. There's no context in the indictment . . . it's only one side of the story."
What possible context could explain why Libby repeatedly did something (out Valerie Wilson) that's "inconsistent with his work ethic, his intelligence and his history"? Wouldn't it have to be something more important to Libby, the man who's been called "Cheney's Cheney"?