Democrats didn't care about perjury when Clinton did it, and totally closed down the investigation into dozens of Clinton scandals. While there is a good-faith argument that Libby should go to prison for lying to the FBI or perjury, anybody who opposed the impeachment of Bill Clinton cannot make the argument in good faith, unless they satisfactorily explain why it's okay when a Democrat does it.

> at what point during his investigation did
> he conclude that outing Valerie Plame's
> name was not a criminal offense?

Honest question: can you point to where Fitzgerald ever said that? I don't recall him doing so, but I could be wrong.

Assuming that my memory is correct (heh), Fitzgerald might know very well that a criminal offense did occur /but that he cannot prosecute it/. Which would make him a very honest prosecutor indeed.

Cranky

As Wonkette and the Washington Post detail, the conviction of Scooter Libby is providing many opportunities for fun and profit:

- "The Sentence Scooter Contest."

- "Guess Libby's Pardon Date, Win a T-Shirt."

Did he announce specifically that outing Plame did not violate any laws? I don't seem to recall that. If you could provide a citation, that would be helpful.

"There is a cloud over the Vice President."

I think Fitzgerald believes there was a crime, or even knows it. However, it will be unchargeable in part due to Libby's obstruction of justice.

I'm with CO and Derelict, why have you bought the spin "that outing Valerie Plame's name was not a criminal offense"?

You seem to acknowledge later in the paragraph that that's not necessarily true, but what makes you ask the question that way?

FWIW, Fitzgerald has said that he's "100% certain" that Plame was covert, which contradicts the standard right wing talking point.

Come on, folks. Here's what I asked:

"And why did he come to that conclusion? Merely because he didn't feel he had enough evidence to convict anyone, or because he thought Plame's outing simply didn't violate federal law at all?"

That's pretty clearly stated, isn't it?

...anybody who opposed the impeachment of Bill Clinton cannot make the argument in good faith, unless they satisfactorily explain why it's okay when a Democrat does it.

Absurd. Of course it's not "okay" when a Democrat lies to a grand jury.

The question is why was Clinton asked about a sexual affair in the first place during his grand jury testimony. The impeachment of Clinton began with an investigation into a real estate investment scandal, and ended with a desperate prosecutor seeking to charge Clinton with anything he could get his hands on...

What does a sexual affair that Clinton indeed lied about have to do with a real estate scandal? Nothing, of course. The point was to get Clinton in any way possible.

I don't know the answer to your question, Kevin, but an important point that I saw Matt Cooper make on the tube yesterday was this: Fitzgerald didn't see that there wasn't a prosecutable crime and plunge ahead for an administration scalp. By the time he came along there had already been some lying done to Federal investigators... he just followed through on that.

The need for Fitzgerald to explain himself is all the more critical because he has indicated that no further cases of any kind will be pursued.

Even the jury clearly didn't get why others weren't on trial.

I can't imagine that Fitzgerald can't find some way of addressing these issues to provide the public with some greater satisfaction with how things have been left in this whole mess.

Who on any side of the issue could possibly feel that justice has been served with this one very limited case?

V. P. was searching for WMD in Iraq, and not finding any, kept looking.

V.P was also privy to some of what Iran's WMD efforts was.

By decriminalizing her outing, the bushie's deflected the attention from "why DID we go to war?" to "who leaked to whom?"

I believe the whole investigation was always going to be a charade.

I hope the Wilson's make brazillions of dollars on the sales of their books!

Is our press happy now?

KD: "That's pretty clearly stated, isn't it?"

Yes, but your original question wasn't...

AssHat said: Democrats didn't care about perjury when Clinton did it, and totally closed down the investigation into dozens of Clinton scandals.

Please explain or cite dozens of Clinton scandals that Democrats closed investigations on. Please explain or cite dozens of Clinton scandals.

Your pathetic play calls out for an intervention.

I think Patrick Fitzgerald really does owe us all an explanation of one thing: at what point during his investigation did he conclude that outing Valerie Plame's name was not a criminal offense?

Outing Valerie Plame's name was never even suspected to be a criminal offense; as for outing her relationship to the CIA, well, as far as I know Fitzgerald has never said that it wasn't a criminal offense.

His not prosecuting anyone for it suggests that there may be evidentiary or logistical problems which make it unlikely that a criminal conviction could be secured, but that's not the same as him having concluded that no crime occurred.

Its sadly ironic that you advance this right-wing talking point that you've bought hook, line, and sinker and spend most of the post talking about it when the post starts out with criticizing the Washington Post editorial board for its uncritical repetition of right-wing talking points.

Didn't he say at the press conference that he was "100%" confident that Plame was covert?

Kevin,

Fitzgerald has already explained this in his press conference after the indictment of Libby.
That's what the 'sand in my eyes' allusion is all about. He explained that the crime of outing a CIA agent is difficult to prosecute, particularly because 'intent' to harm the US is one of the factors that must be proved. In this case he felt the better chance for a successful prosecution involved the perjury and obstruction charges. In fact, the 'intent' to hurt the US was to most observers not at play in this case. Whatever damage that was done to US security was a secondary result and not a primary motivation.

because he didn't feel he had enough evidence to convict anyone, or because he thought Plame's outing simply didn't violate federal law at all?

But he can't really answer that question, Kevin, especially if the answer is that he didn't have enough evidence: we can't have prosecutors tarring people unless they have plenty of evidence. If lack of evidence is the answer (and it probably is), then the right thing for Fitzgerald to do is to say nothing.

Over at FDL there is a strain of Fitz-worship that I find quite disturbing. I have my doubts about Fitzgerald, related to his use of the Patriot Act and his indictment of a girlfriend on nugatory charges in order to squeeze a ladder-target.

But I will say this for him: his absolute prohibition of leaks, and his willingness to _not_ indict, speak very highly of him as an honest law-enforcement officer. Perfect choice for Director of the FBI under any of the possible Democratic Presidents.

Cranky

Come on, folks. Here's what I asked:

Strange, you left out the question that you are being criticized for:

I think Patrick Fitzgerald really does owe us all an explanation of one thing: at what point during his investigation did he conclude that outing Valerie Plame's name was not a criminal offense?

The simple fact is, Patrick Fitzgerald did not, at any time or in any manner, suggest that he concluded that revealing Valerie Plame's relationship to the Central Intelligence Agency was not a criminal offense. He therefore cannot owe anyone any explanation for that, as there is no evidence that it ever occurred in the first place.

"at what point during his investigation did he conclude that outing Valerie Plame's name was not a criminal offense?"

Kevin, unless I missed something Fitzgerald never said that he had concluded any such thing. What's with the false premise?

Kevin, I think you're misunderstanding the commenters' confusion, which has to do with this statement in your post:

" . . . at what point during his investigation did he conclude that outing Valerie Plame's name was not a criminal offense?"

Are you saying here that Fitzgerald determined that outing a covert agent is not a criminal act? Or are you simply saying that he decided not to prosecute anyone for outing Valerie Plame?

Sorry Kevin. I know you mean well, but you made an error.

Your question:
at what point during his investigation did he conclude that outing Valerie Plame's name was not a criminal offense?

By its terms assumes that Fitzgerald concluded it was not a criminal offense. That is not supported, anywhere, by facts. As others pointed out, it is more likely that Fitzgerald simply could not PROVE a crime in the outing, given Scooter's obstruction.

Language is important, especially where, as here, there is an aggressive spin operation coming from the GOP and Libby supporters.

Just correct the wording of the post and be done with it.

Thanks.

Hey, I've got an idea!

Why don't we ask the CIA if a damage assessment report was done after Brewster-Jennings was exposed as a front company?

Why not ask the Bush Administration if they could declassify such a report, if it exists, to see if this whole episode had any real-world national security impact?

What do you think the Bushies' response would be?

Kevin, when did you stop taking checks from the AEI for writing on this blog?

Were the AEI checks large enough to influence what you wrote? Or were there no AEI checks at all?

Is that "pretty clearly stated" enough for you?

Your original question ("at what point during his investigation did he conclude that outing Valerie Plame's name was not a criminal offense?") assumes something which you know may not to be true (as evidenced by your "pretty clearly stated" later question).

"I think Patrick Fitzgerald really does owe us all an explanation of one thing: at what point during his investigation did he conclude that outing Valerie Plame's name was not a criminal offense?"

I've never seen him quoted to that effect, instead what I think he decided is that he could not get a conviction, partly because libby and others lied, and partly because they were able to hide behind the official secrets wall. not bringing a case because you know you can't present sufficient evidence to support it is perfectly proper, it isn't enough for the prosecution to know a crime has been committed.

> Strange, you left out the question that
> you are being criticized for:

And, Kevin Drum-like, he will never admit that error. Kinda funny for a guy who criticizes Cheney so much. Bless his heart.

Cranky

I've always assumed that Fitzpatrick couldn't prosecute the actual crime because all the issues involved with using classified information would have allowed the defense to monkeywrench everything.

Democrats didn't care about perjury when Clinton did it

What a fucking tool you are, Bulgarian Chicken.

We don't need illegal aliens like you here. If you don't like America, you treasonous piece of shit, go back to Sofia and serve your time like a man.

I never trusted Fitzgerald. Why is he still on the job? The answer is because Bush wanted him there. Fitzgerald allowed Rove to correct his statements 5 times. Unpresecdented in any legal proceedings. Well, it is over now.

No need to jump all over his case man; it's a wording error, which needs to be fixed, but I don't think Kevin intended it that way.

And American Douche can go suck Anne Coulter's dick!

hey... American chickenHawk... you lost it on the first sentence fragment, "Democrats didn't care about perjury when Clinton did it"

First, Clinton did not commit perjury. Period. He was asked very specific questions, with very specific definitions, to which he gave correct, factually correct answers. perjury has a specific definition, look it up. Clinton did not commit that act.

Second, even IF he did commit perjury, (which he did not) equating his theoretical perjury, about a consensual sex act, with perjury about the outing of an undecover CIA agent, (in a time of war no less, as you all like to yelp when it suits you) is dishonest. Libby's perjury is way more serious. He committed a felony to cover up a a treasonous act. that you even consider defending him, and this administration, shows that you really are not an american... not one that deserves to be anyways...

The real problem with just leaving the Plame outing episode with this one limited case is that it seems completely incoherent.

Those who see the conviction of Libby as an injustice regard the lack of an underlying crime as telling against the fairness of the prosecution. Those who see the conviction of Libby ALONE as wrong regard the failure to bring in others who participated in the scheme as a miscarriage of justice.

Neither side can be satisfied with the outcome. It seems incoherent to all.

Perhaps there's an explanation that makes that apparent incoherence go away. But Fitzgerald has an obligation to provide it as best he can given the constraints he operates under as a prosecutor.

He's not allowed to talk about the evidence he compiled against people he didn't indict, but he can talk about his team's legal reasoning and its understanding of the federal statutes involved. And he should.

Why? Talking about abstract legal reasoning will not tell anyone why he decided not prosecute unless he also discusses what evidence he did or did not collect against people that were not indicted, which, by your own description, isn't allowed. Further, while the case is inactive barring the emergence of new evidence, that does not mean it is dead, and publicly revealing what factors led to the decision not to prosecute yet could make it less likely that the additional evidence that would change that decision surfaces.

At the very least, discussing anything he can discuss before the Libby sentencing would likely be grossly premature; and even after that, it might be contrary to the interests of justice.

This talking point keeps getting mentioned, but all that we truly know is that no indictment has been brought. We do not know that anyone decided there was no crime.

There certainly are plenty of loopholes in the statute that could get people off: was the outing intentional? did the accused know of the covert status?.

What we know is that Libby was willing to risk jail. It seems safe to say that even if he knew a loophole that would get Cheney off the hook legally, he was more concerned with avoiding the political fallout of an indicted Vice President heading into the 2004 election.

> Perhaps there's an explanation that makes that
> apparent incoherence go away. But Fitzgerald has
> an obligation to provide it as best he can given
> the constraints he operates under as a
> prosecutor.

Actually, under Federal rules Fitzgerald has an obligation NOT to talk about anything he can't reasonably prosecute. It was Kenneth Starr who violated every one of these rules and norms. As I said upthread, I really respect Fitzgerald for taking this approach - I imagine he could make a book deal for $3 million easy, and his team members $500k/each. He specifically said that ain't happening.

At the same time, I think Fitzgerald _did_ give a hint of where he thinks the follow-up could occur: in an impeachment hearing. Which tends to indicate that he thinks he can only indict Cheney (or Bush) on very clear evidence he doesen't have (obstruction of justice, remember) but that the issue could be handled politically. Again, the way the Constitution intended - but we haven't had much of that behavior since 2000 have we?

Cranky

Kevin,

I really think you are off base on this one. If you are going to ask, ever so clearly:"at what point during his investigation did he conclude that outing Valerie Plame's name was not a criminal offense?" you need to provide some evidence that he came to this conclusion. He said in his press conference he was 100% sure Plame was covert. That he does not have enough evidence to indict someone does not mean he has come to the conclusion that a crime was not committed.

Boy, Dick Cheney is sure a stand up guy. Shots one best friend in the face with a shotgun and instead of going to the hospital with him goes home to have a martini to cover up the beer buzz. Now he has another good friend and subordinate facing a long stay in club fed to cover up for Cheney shooting his mouth off recklessly about the identity of a CIA agent. With a friend like Dick . . .

Kevin,
The criminal referral suggests that the outing was a crime. But it would not be appropriate for Fitz to say publicly that Rove (for example) had committed the crime. Why not? Because prosecutors should not make accusations unless they are willing to prove those accusions.

If Fitz had the evidence to convict, then he would have indicted. Since he did not, he said nothing.

It would be hard to imagine that Fitzgerald did not see that the crime of leaking the name of a cover agent had been committed. Why were these crimes not charged? My guess is that Fitzgerald wanted to be very confident of a conviction in a case whose profile could not be harder. He did not want a long trial with a high probability of an acquittal. An element of the crime of leaking is proof that the leaker was aware of the status of the agent. Hard to prove the thoughts of the leaker. And open to bald faced lies. Knowing this, Fitzgerald played it safe and prosecuted charges which were easier to prove.

Kevin

You should be more interested in the release of the testimony of the POTUS and the VP. Even though it was not given under oath, it will clear up lot more stuff than any clearification or enlightenment on legal basis of his judgment that Fitzerald might be able to provide.

at what point during his investigation did he conclude that outing Valerie Plame's name was not a criminal offense?

Ah Kevin,

Maybe you should go back to his October 28th, 2005 press conference. Either a crime was not committed, they are unsure who committed it, it was not deemed proveable, or it was decided for another reason that the crime should not be charged. It's pretty clear that Fitzgerald will not be issuing statements concerning unindicted individuals or uncharged crimes as it would cast specific or general prejudice against individuals outside the justice system.

He's not an independent counsel or partisan mud slinging device. Sometimes silence is just the sound of someone doing their job.

Shorter father1:

Shoots one best friend in the face and stabs another in the back.

"I think Patrick Fitzgerald really does owe us all an explanation of one thing: at what point during his investigation did he conclude that outing Valerie Plame's name was not a criminal offense?"

The answer is: When the President or Vice President (or on their behalf by proxies) asserted that they had declassified the information which formed the basis of the criminal offense. Note that the "declassification" can be done at any time for any reason by these two constitutional officers with no administrative controls or checks to this power.

Even if Fitzgerald has reason to believe that the declassification was done after the possible criminal offense, he can't prosecute for this.

The offense would be by the President or the VP and Fitzgerald can't prosecute them. They are constitutional officers who can only be impeached by the House and convicted by the Senate. (Which, by the way wingnuts, is what distinguishes the legal consequences of Libby's acts from the acts of Clinton.)

Sorry to gang up on you Kevin, but the other comments from nepeta, cmdicely, etc. are on the mark. Fitzgerald never said that outing Plame wasn't a crime or that damage wasn't done.

I don't seem to have the link, but I've seen transcripts of his explanation of this from the press conf. on the day he announced the indictments. He made it clear that convictions under the Espionage Act are rare and difficult to secure (and contrary to David Corn and also the Right Wing machine's fixation on the IIPA law, that's the law really that'd be use to prosecute leakers), and there's no real reason to waste time and effort on that when you've got Libby cold on perjury, lying, and obstruction.

In short, Fitz's response would probably be something to the effect of "the very reason Libby was in hot water is BECAUSE his obstructions and lies made it hard to prosecute Rove and Cheney for outing Plame."

Clinton committed perjury in a civil case. Lewis committed perjury in a criminal investigation. I’m not a lawyer, but the distinction between criminal and civil is generally a big one.

American Hawk claims the D’s shut down dozens of investigations into Clinton scandals. Strange, as I remember it, Ken Starr spent several tens of millions of dollars and ended up convicting Webster Hubble of over-billing (sort of puts the performance of the recently fire U.S. attorney’s into perspective). Starr also felt he had a strong case against Webster Hubble’s dog, but was talked out of issuing an indictment.

The Washington Post is a piece of crap.

Prosecutors think they are gods. Even though Fitzgerald may have done the right thing and exposed some of the lying and intelligence manipulation of the Cheney White House, one has to wonder what his real motives were and why has not the more serious crime of outing a CIA operative been properly addressed.

at what point during his investigation did he conclude that outing Valerie Plame's name was not a criminal offense?

And to think, Kevin, that I thought you were actually paying attention to this process for the last 3 years.

Fitz, clearly thought that it was a crime. He stated so on a couple of occasions (most notably the presser upon filing charges against Libby) but he said that it wasn't a matter of what he thought but what he could prove.

The law is pretty much impossible to prosecute as you must prove that the intent of the person exposing the NOC. Good luck with that.

Shorter: He did think it was a violation, but could not prove intent.

No need to jump all over his case man; it's a wording error, which needs to be fixed, but I don't think Kevin intended it that way.

Sure, but when it was pointed out to him, he responded with a loaded-with-tone insistence that it was clear as daylight. Look, others are right--Kevin cannot wonder when or why Fitz came to a "conclusion" that he's not been shown to hold.

And Kevin certainly can't go further to imply that a Fitz believes a crime may have been committed in outing her, which Kevin does by broaching the possibility that Fitzgerald "didn't feel he had enough evidence to convict anyone," and then expect that phrase to coexist with the statement, "conclude that outing VP was not a criminal offense." This is a contradictory, ill-conceived post throughout.

Over at FDL there is a strain of Fitz-worship that I find quite disturbing. I have my doubts about Fitzgerald, related to his use of the Patriot Act and his indictment of a girlfriend on nugatory charges in order to squeeze a ladder-target.

Its penis worship - fitz was in on the coverup from the git-go.

The answer is: When the President or Vice President (or on their behalf by proxies) asserted that they had declassified the information which formed the basis of the criminal offense. Note that the "declassification" can be done at any time for any reason by these two constitutional officers with no administrative controls or checks to this power.

Even if Fitzgerald has reason to believe that the declassification was done after the possible criminal offense, he can't prosecute for this.

Certainly he could, if he thought he could prove, beyond a reasonable doubt, that the declassification had not occurred at the time of the offense.

The offense would be by the President or the VP and Fitzgerald can't prosecute them.

False. Fitzgerald cannot prosecute the President while he is in office, but the Vice President does not have the same immunity, hence the indictment of Spiro Agnew for tax evasion and money laundering.

They are constitutional officers who can only be impeached by the House and convicted by the Senate.

While civil officers (which extends beyond "Constitutional officers") may be impeached by the House and tried by the Senate, neither civil officers, nor "Constitutional officers" aside from the President, are immune to federal criminal process during their tenure in office.

Democrats didn't care about perjury when Clinton did it,

Equating lying about consenual sex vs. lying about national security issues?

I thought it would take at least 4 comments before we saw the moral relativism argument being made.

How's about changing your pseudonym to "American Stretch"

Fitzgerald knows who publicly revealed Plame's name to the public. Most of these these people have admitted to their role in this. It is a fair conclusion that no indictments were made because Fitzgerald felt that there was no crime committed.

Clinton committed perjury in a civil case. Lewis committed perjury in a criminal investigation. I’m not a lawyer, but the distinction between criminal and civil is generally a big one.

Its certainly pretty big, in terms of where perjury occurs, in the federal sentencing guidelines.

Yikes, when editing your comments, it good to actually reread them again, just once. My comment should have read:

Fitzgerald knows who revealed Plame's name to the public. Most of these these people have admitted to their role in this. It is a fair conclusion that no indictments were made because Fitzgerald felt that there was no crime committed.

Fitzgerald really does owe us all an explanation of one thing...

You really don't grasp how the Gestapo runs its Mafia do you?

Here's a hint:

We owe you nothing...
You owe us more tax breaks...

Fitzgerald knows who publicly revealed Plame's name to the public.

Perhaps.

Most of these these people have admitted to their role in this.

Some people have acknowledged some roles. Without knowing the actual roles of everyone involved, concluding that "most" of the relevant people have "admitted" their actual roles is somewhat premature.

It is a fair conclusion that no indictments were made because Fitzgerald felt that there was no crime committed.

While it may be a plausible conclusion, it certainly isn't one that has any particular grounds to recommend it over plausible alternatives, such as a cloud over the claimed declassification timeline which would prevent an evidentiary barrier in proving a critical fact relevant to establish criminality, or other evidentiary or logistical concerns affecting the prospects for prosecution whatever Fitzgerald believes the relevant facts to be.

"at what point during his investigation did he conclude that outing Valerie Plame's name was not a criminal offense? Was it early in the investigation? Not til the end?"

Fitzgerald probably never concluded that outing Plame was not a criminal offens-- just that he couldn't prove that charge beyond a reasonable doubt.

> Fitzgerald knows who revealed Plame's name to the
> public. Most of these these people have admitted
> to their role in this. It is a fair conclusion
> that no indictments were made because Fitzgerald
> felt that there was no crime committed.

One of the major themes in US politics is that conspiracies are not possible, becuase someone will always break/talk. If the stakes are high enough and the people know each other well enough, I see no reason why this should be true. And in fact tight organized crime rings are very difficult to break even when the police have full subponea power over the physical evidence.

So an equally-likely (and perhaps simpler) explanation is that Fitzgerald (a) knows what happened (b) knows that the members of the conspiracy will never break/talk. Libby slipped, so Fitzgerald pounced on the opportunity, but he knows no one else will make that mistake.

Cranky

American Hawk: "Democrats didn't care about perjury when Clinton did it, and totally closed down the investigation into dozens of Clinton scandals."

Suffice to say that while you have the right to voice your own opinion, ignorant as it is, that right is not a license to re-write history with your own set of "facts".

When Libby was indicted Fitzgerald said it's as if sand was thrown into the umpires eyes.....there's your answer Kevin.

It is a fair conclusion that no indictments were made because Fitzgerald felt that there was no crime committed.

This conclusion will be made by monopolist newspapers and other media to frame public opinion about the White House outing a CIA undercover operative. I think it is why Mr. Drum wants Fitzgerald to give an explicit explanation about why this crime has not been prosecuted.

Fitzgerald may, as others have written, have thought he would not be able to secure a conviction for breaking a poorly written law. It would be nice, though, if a public servant could communicate with the people he serves and provide a concise and definitive explanation for not seeking to prosecute for the more serious crime that is well understood, by many, has occurred.

Kevin is using his marketing background to probe the consensus on this. He knows why Fitzgerald didn`t go any further than he did. He just wants to do a research campaign on what folks that read his blog think. (maybe he is trying to see what sort of magazine articles might be "hits")

Leading the witness one might say.

On topic, I think that much patience is needed because "it ain`t over till the fat lady sings" & I suggest that she hasn`t even arrived at the theatre yet.

Keep your powder dry folks, lots still to come.

"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things." - Niccoló Machiavelli

Cranky Observer: One of the major themes in US politics is that conspiracies are not possible, becuase someone will always break/talk. If the stakes are high enough and the people know each other well enough, I see no reason why this should be true. And in fact tight organized crime rings are very difficult to break even when the police have full subponea power over the physical evidence.

You make me wish I could draw. I'd create a cartoon involving Cheney and the word omertà.

Patrick Fitzgerald has said that he will make the grand jury evidence available to Congress if asked.

The answer to all of Kevin's questions is right there. At what point did Congress decide that no crime was commited and they don't need to know what happened or see the testimony and other evidence that was gathered? Why is Congress so very afraid of seeing any impeachable offenses that they are practically walking around with blindfolds on?

And there is the growing sleaze factor surrounding Barack Obama.

But we don't want to talk about that, do we?

Yancey Ward: "It is a fair conclusion that no indictments were made because Fitzgerald felt that there was no crime committed."

No, it isn't.

It is, however, a fair conclusion that no indictments were made because Fitzgerald felt that there was no crime committed that he could prove beyond a reasonable doubt in a court of law.

I would suggest that you read Mr. Fitzgerald's summation in the Libby trial's transcript and re-visit his public comments following the jury's verdict.

Fitzgerald may, as others have written, have thought he would not be able to secure a conviction for breaking a poorly written law.

The IIPA isn't that poorly written, it is just not designed, principally, to address conspiracies that reach to the top of the executive branch and that remain protected by senior executive officials.

How about this.Fitz could have went after Cheney and Rove,at most they would have got a slap on the wrist ok.Now he left it open for congress to open up a investagation in which Cheny could be impeached,Somthing Fitz would not be able to do.He seemed to allude to that point I think.

Good gracious. Good heavens. Wow. I just read the Washington Post editorial to which Kevin linked. Everybody must go read this.

It reads like it was written by our commenter AL. It blows my mind.

Kevin, your “shorter� statement characterizing this editorial is a huge understatement. For one thing, it is a complete hatchet job on Joe Wilson, and totally misrepresents the Senate intelligence committee report by reference to the additional, exclusively Republican, remarks to the report.

If I were to make a “shorter� remark about this editorial, I would say the editorial seeks to validate every alleged fact and view of the Plame scandal promulgated by the wingnuts.

Go read it, it's amazing.

Go easy on the Hawkster. Have pity on him. After supporting Bush and Cheney he's having to watch the slow motion self-destruction of the conservative movement, the GOP, the religious right, etc.

And what does he have left? Nothing but the pretense that "Clinton was worse!". And to use that defense he has to, first, decide that Clinton's behavior defines his moral standard, with "better than Clinton" being good and "worse than Clinton" being bad. Second, he has to not just use Bill Clinton as a moral ruler, he has to use the right-wing parody of Clinton as a moral ruler, or else he'd have to admit that many of his "heroes" are really corrupt self-serving liars who have played him for the fool from the start. And third, even after adopting Bill Clinton as the basis for his moral standard and even after having to take the most wingnutty of interpretations of Clinton's behavior, he has to pretend that lying about a blowjob is every bit as serious as lying to cover up the Vice President's efforts to avoid anyone scrutinizing the contrived rationale used to commit us to a poorly-planned war in Iraq that has cost the lives of thousands of American troops.

Pity him.

Please read the whole post. Keven may have been unclear in the opening question, but unambiguously stated the question later as whether Fitzgerald's decision not to prosecute the outing was an evidentiary choice or a conclusion that same was not a crime.

My opinion is that many of the leakers involved were fed the information with the critical detail regarding her status omitted. As such, they did not know she was covert and therefore did not judge the leak as damaging to security. However, the Vice President, and most likely Libby as well, either knew or were criminally reckless in failing to know and to the extent they deliberately fed the information to others to make the leak happen, were guilty of the specific crime.

Proving the Vice President and Libby's knowledge of this is exactly where the perjury makes prosecution of the point difficult. Libby's testimony as a convicted perjurer is worthless, and the Vice President is not talking.

The other day was not the first time that Fitz mentioned the cloud over the Vice President's office. He long said that in order to remove that cloud witnesses have to come forward with the truth. Unless they do, there is no way to either determine if a law has been broken or to remove the cloud of suspicion. That justifies his perjury indictments. Beyond that he doesn't feel he needs to explain his actions. He is not a special prosecutor so doesn't need to make a report.

Lets face it Kevin,

When the liberal Washington Post is against your left of center stand, its time to throw in the towel. Maybe now we can rewrite the special prosecutor law so that we have no more investigations like whitewater, plame-gate etc. whose tangents just lend the power of the justice department to battles which should be fought in the political arena. I for one am sick of special prosecutors. I don't think the criminalization of political bickering makes the country better off.

Kevin, I remember Fitzgerald saying something like.

"For a criminal prosecution, you have to prove intent...which goes into state of mind...hard to prove"

Hence the perjury prosecution..

jussumbody >"...Why is Congress so very afraid of seeing any impeachable offenses that they are practically walking around with blindfolds on?"

No one wants to derail the Beltway Gravy Train.

Woo Woo, Choo, Chooo !

"You never change things by fighting the existing reality. To change something, build a new model that makes the existing model obsolete." – Buckminster Fuller

Kevin: . . . at what point during his investigation did he conclude that outing Valerie Plame's name was not a criminal offense?

Did Fitzgerald actually conclude this or are you simply imputing this conclusion to him?

> Maybe now we can rewrite the special
> prosecutor law

The special prosecutor law expired prior to Fitzgerld's appointment. Fitz was called in as a disinterested prosecutor by his superior officers in the Justice Dept - in exactly the same way that a Federal prosecutor from another state was called in to Missouri last year to investigate an allegation which might have touched on the DA who would otherwise have taken the case, and just as can be done in any district to avoid conflict of interest. It really wouldn't be possible for a Washington-based DA to investigate an alleged crime which had the potential to engulf the entire Washington establishement.

So there is nothing to "re-write"; the system worked as intended.

Cranky

Any sound legal prosecution of the crime would require proving that Plame's CIA connection was classified at the time of the leak. Since the President had delegated declassification power to Cheney, and Cheney was at the heart of the leaking campaign, proving that would be tricky, since a)he might have declassified it, real-time or retroactively, and b)he might choose to say he'd done it even if he hadn't. Any documentation on that point would logically be classified itself, and access could be denied on a national security basis, which courts have typically been unwilling to overrrule. So Fitzgerald could have spent months in court battles just to get access to the evidence to prove that one part of the case, only to probably lose before the Supreme Court, and be stymied.

Don't people remember when it seemed like the Libby trial might even get derailed by 'national security' secrecy issues?

The laws about leaking agent's identity aren't written to cope with the idea that the Vice-President would be central to the effort to do it. Imagine, assuming that the Vice President wouldn't cavalierly burn CIA assets to strike back a guy for publishing an op-ed. How naive.

Several commenters have said as much but I'll pile on...

There's a difference between saying "that outing Valerie Plame's name was not a criminal offense?" and saying that a conviction cannot be obtained (and therefore an indictmant would be a bad move.)

After all, the whole rationale for military tribunals for terrorist suspects is that you can't try someone in open court if all the evidence is classified!

Here are the facts, for the few -- the very, very few -- who don't already know them and for those who may need reminding:

"September 20, 2000

"WASHINGTON (CNN) -- Independent Counsel Robert Ray, in his final report reviewing the 1970s-era Whitewater real estate partnership, said Wednesday that there was insufficient evidence that either President Clinton or first lady Hillary Rodham Clinton had engaged in criminal wrongdoing.

"'This office has determined that the evidence was insufficient to prove to a jury beyond a reasonable doubt that either President or Mrs. Clinton knowingly participated in any criminal conduct ... or knew of such conduct," Ray said in a news release issued by the Office of the Independent Counsel after his report on the Whitewater matter went to a federal three-judge panel Wednesday morning.'"

If you need more, just Google for Final Whitewater Report.

John, Fitz wasn't a special prosecutor. If he was he would have had to publish a report and Kevin would have had his answers. He is a Federal prosecutor, investigating allegations by the CIA that a crime was committed. The Justice Department assigned Fitz to the case. He could have determined that no crime had been committed and eliminated the cloud of the OVP if only Libby had not started fabricationg things wholesale. I don't know why Libby did that, maybe he has a condition.

Maybe now we can rewrite the special prosecutor law so that we have no more investigations like whitewater, plame-gate etc.

What special prosecutor law? The independent counsel law under which Ken Starr's fishing expedition was conducted expired without being renewed.

I don't think the criminalization of political bickering makes the country better off.

I. Lewis Libby was not convicted for political bickering.

Kevin: That's pretty clearly stated, isn't it?

No, it isn't, especially after you've claimed he came to that conclusion.

There is a third possibility: he had the evidence, but was afraid the prosecution would go nowhere because of greymail.

He did explain, he stated that Libby's perjury "through sand in the eyes" of the investigation.

That's pretty damn clear to me. What exactly is your problem?

I don't think the criminalization of political bickering makes the country better off.

You trollies are priceless. Keep pretending this is political bickering and equating outing a CIA NOC working in the area of WMD during wartime with a blowjob. Gregory's right, the Republicans won't be trusted with national security for a generation.

After all, the whole rationale for military tribunals for terrorist suspects is that you can't try someone in open court if all the evidence is classified!

Which, it should not be overlooked, is completely false; the civilian courts in the US have extensive procedures for dealing with classified evidence for the express purposes of allowing them to deal with crimes related to national security.

There is a fourth possibility: he had the evidence on Cheney, but believed that putting the Vice President on trial or asking Congress, for most of the investigation and trial a GOP-controlled Congress, to impeach Cheney so he could be tried would be more effort and more damaging to the country, at a time when the focus needed to be on Iraq and getting us out of there, than a benefit to justice.

Why do you keep ignoring possibilities that have nothing to do with a conclusion that no crime occurred or there was insufficient evidence, Kevin?

And there is the growing sleaze factor surrounding Barack Obama

WTF? Why, did he speak at CPAC?

Sorry Kevin, but even as reworded your question assumes facts not in evidence.

Cranky

LowLife: I don't know why Libby did that, maybe he has a condition.

The condition is Bush Infatuation Syndrome (BIS).

Or maybe TLDATCD (The Law Doesn't Apply To Conservatives Disease).

There is a third possibility. Fitz might have decided that violations of the IIPA were not indictable, because no trial would have been possible due to greymail. Libby tried to convince the judge that he needed access to secret information to prepare his defence. If Walton had agreed, Libby would be free as the White House, would, of course, refuse to release the information.

A trial on the underlying outing necessarily involves secret information. With [accomplices] ehm political allies of the accused deciding what secret information could be released, there is basically no chance of a trial even if there was proof that a crime was committed.

Kevin, now that you've changed your wording, your meaning is clear. The previous phrasing was misleading. No need to be huffy about it -- a little editing is a wonderful thing.

Now that I understand what you were asking, I can say that Fitzgerald did indeed explain why he was proscecuting anyone for the crime of outing Valerie Plame, back when he indicted Libby. As one or more of your many commenters have already pointed out, Fitzgerald referred repeatedly to Libby's obstruction of justice as a very serious offense because it prevented anyone from finding out the truth of what really happened. I don't think you need much more of an explanation than that, and I don't understand why you feel such a burning need -- unless, perhaps, you think a little grandstanding from Fitzgerald would do something to apply pressure to the White House?

Chickenhawk: "Democrats didn't care about perjury when Clinton did it..."

Spoken like a man who's never had a blowjob.

By the way, have you suited up for the army yet? C'mon, Hawk, let's get a-killin'!

at what point during his investigation did he conclude that outing Valerie Plame's name was not an indictable offense?

Kevin, your correction hasn't changed anything, since "indictable offense" is a legal classification of particular criminal offenses; Fitzgerald has never determined that the leak was not a criminal offense nor has he determined that the leak was not in the more specific category of indictable offenses. He simply has not proscuted anyone for it at this time, and has stated the investigation is now "inactive" until and unless further evidence emerges.

(Further the leak that would be criminal is not the leak of Valerie Plame's name, but of her relation to the CIA.)

Perhaps if you'd be less defensive and snarky toward your critics, you could actually correct the substantive problems with the question, instead of pretending that the problem was just the poor choice of a single word which is replaced with another word that makes no substantive, relevant change in the meaning of the question, and retains the same false premise.

I have to chime in with the rest of the chorus here:

When did Fitzgerald say that there was no crime? When did he outright say this?

From what I've seen, what I've heard, this Libby case was prosecuted because Libby's lying and perjury prevented Fitzgerald from being able to judge exactly that: Whether there was a crime, and if so, who did it, why, and who helped him.

Libby's obfustications made pursuing that case impossible, thus the trial.

And when was it said that there were no more investigations?

I agree with biggerbox.

A prosecutor's job is to win a conviction. The problem with bringing charges involving classified material is that the defense can use "graymail": they can demand access to vast amounts of classified material to defend themselves, the executive branch can deny access on national security grounds, and the trial shuts down.

Blatantly lying to a grand jury, on the other hand, is a slam dunk. It's the same reason Al Capone was put away for tax evasion, it was the charge that could be made to stick.

Spoken like a man who's never had a blowjob.

Whaddya mean "like"?

Just a darned minute! Before we let the righties have the point that Clinton lied about "having sex", I want to rehash some arguments that were quickly swept aside in the rush to get the president.

I believe a large majority of people would agree: fellatio might be described as “indulging in sexual activity�, but “having sex� means penetration alone.

It sure did when I was a young-un. If you were asked, “Did you have sex?� It meant only one thing.

It still does. I heard an NPR interview with a high school girl the other day who said (approximately), “Giving head is no bigger deal than sucking on a lollipop. But I won’t have sex. I won’t have my body violated.�

Clinton was not splitting hairs. He did not “have sex� with Monica and they actually kept their encounters to fellacio only so he wouldn't have to lie.

So why was the distinction, which appears to hold up both legally and culturally, so quickly and roundly overrun? Easy. The Republicans wanted to get Clinton by any means and the media wanted those headlines. Who could speak sense to such a juggarnaught! In the years between the Spanish American war and the run-up to the current one, it was the darkest day for American politics and journalism.

Fitzgerald's modus operandi in his high-profile Illinois corruption investigations has always been to go after the small fish first, get them convicted and facing hard jail time, then get them to turn state's evidence on their bosses for lesser sentences. In this way, he gradually works his way up the food chain, and eventually convicts the big fish.

In the Libby case, Scooter is the small fish. Fitz said yesterday his investigation of the big fish is "inactive" at present. If Scooter were really facing serious jail time, he would be looking to cut a deal now with Fitz to sell out Rove and Cheney.

Unfortunately, in this case, Scooter has a "get out of jail free" card to play -- a Presidential pardon. There's not much Fitzgerald can do about that. There's no downside for W. in pardoning Scooter -- he's not running for office anymore, and could care less about public opinion.

The pardon deal was consummated right after Libby's defense opened their case with Libby as a "scapegoat." By cutting this deal, the White House avoided subjecting Cheney to cross-examination and secured a promise that Libby wouldn't testify. For the rest of the trial, Libby's lawyers never repeated the "scapegoat" claim. In fact, they didn't really put up much of a defense at all. They didn't need to -- they had what they wanted. Loyal Scooter had fallen on his sword to protect his bosses, and will eventually walk away a free man.

Depending on how his appeals play out, Scooter may well end up in jail for a time. W. can't pardon him until the very end of his term. If he pardoned Scooter now, Fitz could immunize Libby from prosecution and require him to testify against his bosses. If Libby refused, or lied again, Fitz could bring more charges against him.

heh. A little bit of bubble-pricking from the wapo and the usual suspects go batshit.

"reality based" my ass.

By the way, have you suited up for the army yet? C'mon, Hawk, let's get a-killin'!

The coward isn't even a real American; what makes you think that he is a real Hawk? I any case, I doubt that the military will take a man with undescended testicles.

Further and further into their own little fantasy world.

Fine. Let them stay on the defensive. That's an advantage.
.

am, both the bubble and pricking are all in your head. You realize that you are laughing about American soldiers dying for a lie. But by all means, keep enjoying the folly.

So I've changed a word in the post to make it even clearer. Call off the dogs, folks.

Props for making the change, Kevin, but your original wording was poor, to say the least, you're rightly called on it, and you say "call off the dogs"? Who do you think you are, Broder or Brooks What gives?

The WaPo certainly has a better understanding of this "scandal" than most the commenters here have.

The change from "criminal" to "indictable" changes nothing, as cmdicely points out. As it stands, KD's post is self-contradictory.

It would have been fair to simply point out that "a cloud" remains on this case because nobody was indicted for the underlying crime. (Why not Armitage?) There are many valid reasons why this did not happen, and the country needs to know (even though prosecutorial protocol requires otherwise). Perhaps someone in Fitzgerald's team will leak the truth. (After all, leaks don't seem to be indictable, right?)

Is it just me or has the Wapo become a terrible - I mean REALLY terrible - newspaper? I mean, there was a time when it actually INVESTIGATED wrong doing in the White House. Now, it just seems constantly at pains to cover up for it. What the Hell happened to a once great newspaper?

> There's not much Fitzgerald can do about that.
> There's no downside for W. in pardoning Scooter --
> he's not running for office anymore, and could
> care less about public opinion.

Well, there is one thing he could have done: issue his indictment of Libby prior to November 2004, rather than waiting until January 2005. To me _that_ is the cloud that hovers over Fitzgerald.

Cranky

Now, it just seems constantly at pains to cover up for it. What the Hell happened to a once great newspaper?

Where the money is most concentrated is where newspapers seek readership, because its the most bang for the buck in securing the advertising dollars on which they survive.

Defending an administration nakedly devoted to the service of the presently wealthy is, therefore, quite natural and good business, at least in the short run, even if not particularly honest or good for the country.

Since we are interested in putting away those who commit perjury I think they should go back and prosecute Joe Wilson for lying to a congressional committee while under oath.

The jury foreman: "We convicted Libby because we really know Cheney was behind it."

And to think most of the people here would agree with that progression of thought.

Was Libby a big fish here or is this just another example of the Bush hatred syndrom taking down anyone they can lie about?

It's irrelevant when Fitzgerald decided he didn't have enough to bring a prosecution on the criminality of Libby's revealing Valerie Plame's undercover status to the public. If witnessess who may have committed the crime being investigated lie to the FBI or a Grand Jury, they make it harder, maybe impossible to know if the crime has been committed, no? That's why we have the crime of obstruction of justice. "Obstructing justice"--it means the liar has blocked or obstructed the investigation of a crime. Patrick Fitzgerald painstakingly explained that obvious legal principle the day he indicted Libby in 2005, he explained during the Libby trial, and he explained it yesterday in the post-verdict news conference on the courthouse steps. If potential defendants lie to investigators, they MUST be prosecuted. This is obvious to anyone with common sense.

As David Corn points out in his Nation column today, if such lying were ignored as the Washington Post, the National Review and all the rest of the right-wing smear machine are now arguing, how many potential defendants do you think would tell the truth to investigators or Grand Juries? I'll tell you: NONE.

And to all the right-wing Libby defenders, what happened to your "rule of law" arguments during Bill Clinton's prosecution for obstructing justice for not admitting a blow job? Please wingnuts, you're making complete assess of youselves with this stupid argument.

The other problem, of course, with Kevin's question is that it makes a fundamental mistake of presumption:

That is, it presumes that the default state is that there is someone to prosecute, and that Fitzgerald had to actively decide not to prosecute someone. Instead, an investigation may start out with the indication of a likely crime, but it works to reach the point where a decision can be made that someone can be prosecuted, which, as far as the leak goes, was never reached.

So, aside from the fact that the decision that Kevin suggests was made never having been made, the decision that Kevin apparently really wants an answer about was pretty clearly never made either; what was made was, pretty clearly (and Fitzgerald has already explained this with his description of the status of the investigation) a decision that no further prosecution was possible without new evidence emerging that was not likely to be produced by further active investigation.

The jury foreman: "We convicted Libby because we really know Cheney was behind it."

Please provide a source for this direct quote or admit that it is a lie.

Fitzgerald actually said quite a bit on this in his 2005 press conference, as has been pointed out. He does not mention the IIPA, and seems to be saying that a crime was committed whether Plame was covert or not. Here is the most relevant segment:

QUESTION: Was the leaking of her identity in and of itself a crime?

FITZGERALD: OK. I think you have three questions there. I'm trying to remember them in order. I'll go backwards.

And all I'll say is that if national defense information which is involved because her affiliation with the CIA, whether or not she was covert, was classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espionage Act.

That is a difficult statute to interpret. It's a statute you ought to carefully apply.

I think there are people out there who would argue that you would never use that to prosecute the transmission of classified information, because they think that would convert that statute into what is