Editore"s Note
Tilting at Windmills

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October 28, 2005
By: Kevin Drum

WAS EXPOSING VALERIE PLAME A CRIME?....Was Scooter Libby guilty of any underlying crime in the Valerie Plame case? Or could he have completely avoided indictment just by telling Patrick Fitzgerald's investigators the truth when he first talked to them?

Although Fitzgerald himself was careful not to speculate about this during his press conference, you can make a plausible argument that Fitzgerald did have the goods on Libby but just decided not to bother trying to prove it in court. After all, as he said, the public interest in punishing the leak is served regardless of what charges are brought, so why waste time trying to prove a complex and precarious case of espionage or mishandling classified data when there's a nice easy perjury case to be made instead? Either way, the bad guy does the time.

Unfortunately, I don't think this holds water. Here's the thing: we know that it wasn't Libby who gave Valerie Plame's name to Robert Novak. It was someone else. What's more, both common sense and multiple news reports suggest that Fitzgerald knows exactly who this person is. So why not bring charges against Mr. X? It's pretty clear that he leaked Plame's name, and if Fitzgerald thought the leak itself was criminal then Mr. X sure ought to be guilty of something. And since no other charges were filed against Mr. X, you can't say that Fitzgerald just decided to go for the easy case and let the other stuff slide.

That leaves only one conclusion: Fitzgerald didn't think he could win conviction for any charges related to the actual leak of Plame's name. And if he didn't think he could win a case against Mr. X, he probably didn't think he could win a case against Libby either.

(Unless, of course, he brings further charges against Mr. X at a later date, or announces a plea deal of some kind. Based on his press conference, though, my guess is that he doesn't plan to. He seemed pretty eager to lower expectations on that score.)

Anyway, that's my guess. Obviously we don't know everything yet, and we might not ever know everything. It depends on how leak free Fitzgerald's office stays. And it says nothing about how insanely malicious and reckless it was to expose Valerie Plame's identity in real world terms. Legally, though, if Fitzgerald thought he could bring charges against anyone for the actual act of exposing Valerie Plame's identity, I think he would have done it today.

UPDATE: Since I've gotten several emails about this, I'd better clear up something here. I'm not saying there won't be any further indictments. Obviously Rove is still under investigation, and there are a few others who might be in trouble too. What I'm saying is that I don't think there will be any indictments for the actual act of exposing Valerie Plame's identity.

This is all speculation, of course, and I'm certainly happy to entertain competing theories. But to be plausible, your theory has to explain why there's been no indictment of Mr. X even though it seems likely that Fitzgerald has bulletproof evidence that he did in fact disclose Plame's identity to Robert Novak.

UPDATE 2: One of Andrew Sullivan's readers argues that Fitzgerald is "one inch from prosecuting the leak itself." He makes a pretty good case and, needless to say, I hope he's right and I'm wrong.

Mark Kleiman also makes the case that I'm wrong. Neither one of these arguments addresses the Mr. X issue, but check 'em out anyway.

Kevin Drum 6:58 PM Permalink | Trackbacks

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