I'd say we are likely not crazy when a former federal prosecutor writing for NRO pretty clearly states that the indictment likely contained enough evidence to prove an espionage act violation. I'm a lawyer on a different side of the fence as McCarthy, but we seemed to have arrived to exactly the same conclusion after reading the indictment. The evidence is there.
See excerpts after the jump....
Andy, who I generally consider a hack, surprised me as he gives an entirely fair overview....but, when discussing willfulness, he leaves out the best piece of evidence. McCarthy overlooks Libby's conversation with a subordinate. Libby was so concerned about discussing Plame over the phone that he stated that he could not do it over a secure telephone line...and yet, within days, he relays that same information to a journalist.
Evidence to prove a violation of the Espionage Act is in the indictment. Maybe Fitzie made a policy decision not to go down that road...but, he has the evidence to do it, if he so chooses.
And now comments from a guy who I usually think unfair in his analysis:
"Like it or not, the mere fact that Plame was employed by CIA is alleged to have been classified. Libby is alleged to have learned this fact in his official capacity. He is alleged to have told it to Judith Miller of the New York Times, a person not entitled to receive classified information (and to have implicitly confirmed it for Matthew Cooper of Time, another person not entitled to receive it). Here on Planet Earth, this is known as leaking classified information.
For the reasons I discussed yesterday, this potentially makes out a violation of the espionage act. However, the supposedly intemperate, smearing prosecutor, Pat Fitzgerald, gave Libby the benefit of the doubt on his mental state (and for policy reasons pertaining to overzealous enforcement of the espionage act). He exercised discretion not to charge the leaking as a separate crime. "
and...more:
"Look, if you want to say Libby is not guilty of a leaking crime because he did not have the required mental state, that's a fair argument. But let's face it honestly: he is a smart guy and a high public official who appears to have performed all the acts one has to perform to commit a leaking crime. To contend that he is being smeared is absurd. And Fitzgerald plainly cut him a break by not charging him with the espionage act. Maybe Libby could have beaten such a charge. But maybe not. Do the people making this smear argument really want to live in a country where a prosecutor charges every conceivable crime that may have been committed? And for no better reason than to rebut a red herring of a talking point? "
From an earlier post from McCarthy:
"The indictment does not allege an offense of the espionage act (18 USC 793), but it does indicate there may well have been one.
There are several crimes laid out in the espionage act, but the one that applies most closely on these facts requires the government to prove that a person (a) obtained classified information lawfully (e.g., in his official capacity), communicated it to someone not entitled to receive it, and (c) did so willfully.
The indictment charges the mere fact that Plame worked at the CIA was classified information. ("At all relevant times ... Valerie Wilson was employed by the CIA, and her employment status was classified.")
It is worth noting that many people, including me, have been wrong about this. I assumed that the fact that she was a CIA employee was well-known and not classified, but that some aspect of her relationship with CIA was covert and classified. The latter may be true (Fitzgerald, as he should have, declined to comment on it), but it turns out to be not so important because the very fact that she was a CIA employee was classified. It really doesn't matter whether we think it should have been classified or not. The fact is that it was. People privileged to handle classified information well know that they mustn't disclose it even if they personally think there is no good reason for it to be classified or that some higher purpose of theirs would be served by disclosing it.
So, if the allegations in the indictment are true, then Libby did obtain classified information in his official capacity and he did share it with reporters who were not entitled to receive it. The rest of the equation is: did he act willfully?
Fitzgerald did not charge an espionage act offense. To the extent he spoke about the act today, he explained that he thought it was a statute that had to be used very judiciously to avoid its becoming a British-style official secrets act. That is the policy reason for not charging it, and it could be argued either way. I think he was right, but reasonable minds could differ.
What also could be argued either way is the obvious evidence reason for not charging the espionage act, which is the difficulty of proving willfulness. Pat did not go into this today - again, appropriately; as he noted the prosecutor's job at this stage is to announce charges, not vouch for them, and not to discuss charges or persons not indicted. But that doesn't mean we can't analyze it.
Willfullness is a high mental state in the criminal law. Although the adage that "ignorance of the law is no excuse" generally does apply, a willfulness requirement in a statute comes close to making ignorance of the law a defense. The government must prove that the defendant was fully aware of the unlawfulness of his actions (not that he knew the statute number of the crime but that what he was doing was illegal) and that he performed those actions with a bad purpose.
There is basis in the indictment to suspect that Libby acted willfully - he is alleged to have done a lot to inform himself; to have asked Judith Miller not to source him as a senior administration official but as a Hill staffer (strongly suggesting that he knew what he was saying should not be said); and to have lied about what he said and how he knew what he knew (strongly suggesting he was worried about having said what he said, and worried about having it revealed that he came about the information officially rather than casually)."