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March 06, 2007

Comments

hilzoy,

I felt the exact same way as you about the Clinton perjury. The punishment should have fit the crime. Even though I thought he was led into a perjury trap, the law was clear and *some* penalty needed to be paid, and should have been paid under state law, not federal -- in the jurisdiction where the perjury was committed, under the guidance of the judge in the case.

But isn't that what happened? I know there was no persecution, but I thought after the impeachment was over the judge in the case assessed a penalty -- a fine of some sort, and a suspension of his law license in Arkansas for five years. Which implies that Clinton stipulated to the offense (negating the need for prosecution)?

(And I thought a fine and temporary -- not permanent -- suspension was just right. Firm enough to warrant the seriousness of perjury, lenient enough to recognize the circumstances surrounding).

Heh-heh. I said "persecution" instead of "prosecution"

Talk about a Freudian slip......

I don't think a President can be tried for any crimes until after he is impeached. If you thought it was worthy of trial, it required impeachment (or wait until he is no longer president). Clinton lost his law license from a civil bar action, not a criminal case, if I recall correctly.

The Paula Jones case raised the question of whether a President can be sued while still in office. The Supreme Court said "Sure he can, it won't distract him too much from his job."

I think it's still an open question whether a President can be tried for criminal matters before or after impeachment -- they're two different things. You don't have to commit a specific crime to be impeached, for instance.

Clinton's loss of a law license was directly a result of the Paula Jones case. Clinton made a false statement in a civil case. Even though the statement was deemed to be not germane, and even though the case was dismissed, the false statement was made. My recollection is the judge in that case recommended the penalty?

But without an admission of the false statement, I don't know that they'd be able to assess a penalty without a trial or some sort of hearing.....

I found this on Answers.com:

On April 12, 1999, Wright found Clinton in contempt of court for "intentionally false" testimony in Jones v. Clinton, fined him $90,000, and referred the case to the Arkansas Supreme Court's Committee on Professional Conduct, as Clinton still possessed a law license in Arkansas.[1]

The Arkansas Supreme Court suspended Clinton's Arkansas law license in April 2000. On January 19, 2001, Clinton agreed to a five-year suspension and a $25,000 fine in order to avoid disbarment and to end the investigation of Independent Counsel Robert Ray (Starr's successor). On October 1, 2001, Clinton's U.S. Supreme Court law license was suspended, with 40 days to contest his disbarment. On November 9, 2001, the last day for Clinton to contest the disbarment, he opted to resign from the Supreme Court Bar, surrendering his license, rather than facing penalties related to disbarment.

I was musing about Clinton and Libby over at OTB.

Clinton arguably didn't commit perjury, b/c his lies weren't material.

Libby's lies arguably weren't material, b/c Armitage was Novak's source.

However, were the feds obliged to close up shop once they'd fingered Armitage, or were they allowed to investigate whether there were separate leaks?

While it has not been tried, the consensus of opinion appears to be the President cannot be tried for criminal acts without impeachment, as it would prevent him from being able to execute his duty. There is a long discussion of it here:

http://www.usdoj.gov/olc/sitting_president.htm

the consensus of opinion appears to be the President cannot be tried for criminal acts without impeachment

That was Tocqueville's understanding, IIRC -- he used the example of the President's being accused of high treason. Once removed from office, then he can be prosecuted.

I was just watching a bit of this on CNN. The jury member who was speaking said the jury thought that Libby, though guilty, really was the fall guy for higher-ups. This is hardly a surprising conclusion, but I think the explicit statement is significant.

I’m mostly OK on the false statements/perjury counts (mostly only because a lot of it seemed like he said she said). But can one of you legal types explain the obstruction count?

That is, what are you obstructing when there is no underlying crime (or at least none has been proven, no one has been charged or indicted, etc) and no ongoing investigation into an underlying crime?

It was successful obstruction.

"what are you obstructing when there is no underlying crime (or at least none has been proven, no one has been charged or indicted, etc)"

The very fact that no underlying crime has been charged or proved shows that justice was successfully obstructed.

jrudkis and rea – I would hope that the legal standard is a little higher than that. The fact that a crime couldn’t be proven proves it was obstructed?

Not really. But justice works both ways, and his perjury could obstruct the finding that no crime was committed. It is the prevention of the justice system from working.

They were investigating a crime and he obstructed the investigation. The charge of obstruction could hardly be premised on what the investigation would have found if it hadn't been obstructed, could it?

I have to admit to being of that Quixotic school of thought that says, absent some clear statutory or constitutional grant of immunity, the President is as subject to being sued or prosecuted, promptly, as Joe Sixpack. Equality under the law, and all that... The Constitution seems able to speak clearly on the subject of the (Remarkably limited...) immunity of elected officials in the case of Congress, and I take it's silence in the case of the Executive as meaning there isn't any.

OCSteve: The fact that a crime couldn’t be proven proves it was obstructed?

Not a lawyer. But we know a crime was committed: it's a crime* to betray the covert identity of a CIA agent, and we know that senior members of the Bush administration discussed doing so and that - whatever Armitage did - at least one of them then did call the media in order to out Plame's identity.

*I have seen many right-wingers argue the point that it doesn't matter because you can't be prosecuted for outing a covert agent if her overseas work was more that five years ago.

I have to say that this strikes me as being the worst kind of lawyerese. If you are a senior administration official, entrusted with information like the covert identity of CIA agents, it may or may not be a prosecutable offense for you to call half a dozen reporters and tell them "That woman Wilson's married to? She works for the CIA" but it absolutely is a bloody crime.

About Clinton: that's why I thought he should have been tried after he left the White House -- so as not to impede the performance of his duties. I also think that in a sane world, he and the prosecutor would have done whatever had to be done to assure that this could happen -- e.g., if the statute of limitations had to be waived, waive it.

About Libby: I don't think obstruction depends on some other crime being successfully prosecuted, or even charged. If I lie to the FBI, or conceal evidence from them, or try to intimidate other witnesses, I am obstructing justice in the sense of impeding investigations into crimes, whether or not any are subsequently tried. Not to say this would be like saying: really, all you have to do is succeed in obstructing justice, and then even the obstruction charges will go away.

Also: no crimes were charged does not equal no crimes were committed, or no crimes were worth investigating, or even the prosecutor is not convinced that crimes occurred. It just means: the prosecutor does not believe that crimes can be proven in a court of law, given the available evidence. (E.g., if the police obtained evidence illegally, you couldn't introduce it into court, and thus couldn't use it to get a conviction. You might well believe that it's really good evidence of a crime, and thus be convinced that a crime occurred, but know that w/o being able to introduce that evidence, you couldn't prove it.)

Prosecutors: Give us that document

Me (flustered): Um..what document?

Prosecutors: That one. The one you're holding.

Me (putting paper under chair): I don't see any document.

Prosecutors (patiently pointing: That one. The one you're sitting on.

Me (putting document through shredder): Gosh I don't know what you're talking about. I don't have a document.

Prosecutors: Damn. Now we can't prove whether or not a crime has been committed. But we're charging you with obstruction of justice.

Me: Obstruction? But...but there's no crime!!! That you can *prove*, anyway.....how can you charge me with obstruction when there's no underlying crime?

"I also think that in a sane world, he and the prosecutor would have done whatever had to be done to assure that this could happen -- e.g., if the statute of limitations had to be waived, waive it."

In a sane world, guilty people don't cooperate with prosecutors in that way. ;)

But we know a crime was committed: it's a crime* to betray the covert identity of a CIA agent

Jes: That’s the piece that I am missing. I don’t recall that the covert status was ever proven. Covert has a specific meaning including that the CIA is taking active measures to protect the identity. I think Fitz stayed away from that altogether during the trial, and the defense argued that they (CIA) made no such efforts.

I don’t want to rehash the entire thing – I just think that you have to have a crime as a starting point in an investigation before someone can obstruct the investigation into who may have committed said crime.

Can anyone point me to where it was conclusively determined that a crime was committed?

The penultimate crime was the perjury. Committing perjury obstructed the investigation. If they had not convicted on the perjury count, they could not have convicted on the obstruction count.

just think that you have to have a crime as a starting point in an investigation before someone can obstruct the investigation into who may have committed said crime.

no. you need to have reasonable suspicion of the commission of a crime.

OCSteve: That’s the piece that I am missing. I don’t recall that the covert status was ever proven.

I don't recall that non-covert status was ever proven, either. All we have to prove that Plame was covert is a statement from someone who trained with her in the CIA who said that she had to all appearances left it and was therefore covert, the knowledge that none of her neighbors knew she worked for the CIA, the fact that her employer of record was a company that on close examination turned out to look like (indeed, was admitted by the CIA to be, I think) a front company put up to shelter cover CIA agents, and the fact that the CIA and the Department of Justice both evidently took the crime of outing Plame's identity extremely seriously. Which total of circumstancial evidence may not be enough to prove Plame was covert according to whatever strict definition exists in law. But, it certainly strongly suggests to me that indeed she was, especially as all we have to show she wasn't is a bunch of journalists who claim - without evidence - that "everybody knew" she was a CIA employee.

Also, I gather that under US law, to find the person who outed Plame guilty, she not only had to have been overseas within the past five years, the person who outed her had to know she was covert. Which would likely be a hard thing to prove, especially if all the senior Bush administration figures who are implicated are all covering for each other.

OCSteve: I think you can also have investigations into whether a crime was committed. Suppose I was found dead tomorrow, in suspicious circumstances. No one would know whether I had been murdered -- I might have been holding the knife in a peculiar way and then fainted on top of it, or have been cleaning my machine gun while staring into the barrel, or gotten Ambien confused with M&Ms, or something -- but until you have an investigation, you can't say for sure.

Suppose you (who in this imaginary world are a real, not virtual, friend of mine) take it upon yourself to conceal evidence, intimidate witnesses, lie to the investigators. At that point, you are obstructing justice, as I understand it.

OCSteve: The recommendation by the CIA to the Justice department for a criminal investigation should be proof enough that Plame's status was undercover.

There is absolutely NO REASON the CIA would request a Justice Department investigation otherwise.

In any case, it really doesn't matter. If you obstruct an investigation, you obstruct an investigation regardless of whether a crime happened.

Let me give you an example: My brother has a fight with a guy he knows. He hits the guy with a baseball bat. The guy dies that night at the hospital. I burn the baseball bat, because I don't want my brother to go to jail.

In the course of the investigation, the police learn that I had the baseball bat and destroyed it -- I have obstructed justice. Even if an autopsy determines that the man died of unrelated heart failure and not blunt force trauma, I still interfered in their investigation, even if no charges are ever brought to bear against my brother.

The reason obstruction is a crime is to deter people from interfering with an investigation -- any part of an investigation, even the preliminary "Was a crime actually committed" part.

It doesn't take a genius to understand why.

Patrick Fitzgerald said at the press conference today that he was 100% certain that Plame was covert. That's all the verification I need.

Fitz didn't deal with proving the 'covert' issue during trial because it wasn't germane to whether Libby lied or obstructed. He was investigating whether or not a covert agent had been exposed deliberately, and during that investigation Libby misled. Clearly, even if Fitz thought they had outed a covert agent, he didn't think he met the burden of proof (and like a good prosecutor, didn't bring charges).

FWIW, I have never thought the *intent* was to expose Plame and ruin her career. I don't think Cheney, et. al., cared one way or another about that. I think the intent was to say "Joe Wilson is a girlyman whose wife outranks him and gets him jobs to do" -- to embarass him, and imply that he's not a "real man." I think they were criminally negligent, or just reckless, in what information they used.

I understand that if you have a dead body that is reason enough to launch an investigation. But if my neighbor accuses me of stealing his new chainsaw, before launching an investigation involving me I would expect investigators to at a minimum conclusively prove: a) he in fact had a new chainsaw and b) it is now missing.

As I said, I haven’t followed every detail of this whole thing. At least in terms of the five year criteria and the government taking action to conceal her identity it would seem that she would not qualify as covert. If Fitz was 100% sure she was then why not introduce that at trial to bolster his case?

The kicker for me though is that we now know that the day Fitzgerald took over the investigation he was aware that Novak got her name from Armitage. What exactly was left to investigate at that point?

OCSteve. Taking your case, the authorities would need to investigate about the chain saw. If someone who possibly had the appropriate answers refused to cooperate or lied to the investigators, that is obstruction of justice and perjury. Even if the chainsaw had never existed.

I understand that if you have a dead body that is reason enough to launch an investigation. But if my neighbor accuses me of stealing his new chainsaw, before launching an investigation involving me I would expect investigators to at a minimum conclusively prove: a) he in fact had a new chainsaw and b) it is now missing.

A CIA referral surely suffices to satisfy this point.

As for Armitage, that was my question above. But there was nothing impossible or illogical about parallel, unrelated leaks. We can suppose that the feds had some reason to think Armitage wasn't the end of the story, and once Libby started lying & contradicting other witnesses, of course their interest was piqued.

"If Fitz was 100% sure she was then why not introduce that at trial to bolster his case?"

This isn't my area, but I think a defense attorney might argue that, if it wasn't part of what Fitz had to prove, it was irrelevant and might prejudice the jury against Lubby.

OT, you want to see a really bogus criminal investigation?

by Lubby I mean Libby, obviously.

There's a whole forest here and we keep getting pointed to one tree (she wasn't covert, she wasn't covert).

Even without clearly provable criminal conduct, the office of the Vice President conspired to savage a critic of the war who was trying to tell the truth about something. It involved the identity of a CIA agent. The CIA asked for an investigation. At the very least, Fitz had to investigate what was done, and whether laws were broken. In the process, Libby -- to cover up something which was Wrong, if not Criminal -- lied and obstructed justice.

The fact that Novak heard from Armitage does not mean that Cheyney, Rove, Libby and Fleischer didn't conspire to work the phones and get some stories about Wilson and Plame out there. Fitz had to investigate that.

Libby did something which was arguably criminal but certainly wrong, and lied about it because he didn't want anyone to know about it. That's a crime.

And as far as the covert/not covert discussion, I think enough people, close to the actual work, have said she was covert, and was working on WMD of all things.

Katherine, no need to correct yourself, Scooter Lubby has a nice ring to it.

And here's the recent Firedoglake post dealing with this exact topic:

http://www.firedoglake.com/2007/02/21/wilsons-wife-wasnt-a-person-but-an-argument/

This isn't my area, but I think a defense attorney might argue that, if it wasn't part of what Fitz had to prove, it was irrelevant and might prejudice the jury against Lubby

Interesting. Any opinion on the success of an appeal?

Hilzoy:

President Clinton agreed with you, about the need for him to face the charge of perjury, like any other citizen. I don't know why so few people seem aware that Clinton also tried to work out a way in which he could answer at the bar of justice, after his presidency.

In the last days of the House Committee's hearings on impeachment, Charles Ruff, the President's counsel, appeared, representing Clinton, and in addition to a Ruff's detailed critique of the need for impeachment, he offered a letter from the President signing on to the suggested alternative of Mr. Starr filing an indictment on the specific charges related to Clinton's testimony under oath in the Paula Jones case; along with that suggestion, the letter offered Clinton's willingness to pledge, under oath, that he would neither pardon himself in reference to that indictment or any aspect of the case, nor would he accept a pardon from any subsequent President.

You'll remember that by this time we all knew "sex" was all Starr had, because all the other so-called scandals he'd been investigating and reinvestigating for years, at that point, in order to find something, anything on the Clintons, had come to precisely nothing.

The Republican response on the committee was immediate; not merely disinterest, but a pointed refusal to even consider the possibility of Clinton actually facing a jury, because...wait for it...justice delayed is justice denied. Paula Jones having waited three years to make her charges against Clinton, couldn't be expected to wait another two years to get her day in court, even though it was clear that the perjury trap into which Clinton had stepped was going to get her a handsome settlement after all, even though the Judge had found that Lewinsky's relationship with Clinton was not germane to Ms. Jones' accusations.

That fact would have mitigated against a jury finding the ex-President guilty of the crime of perjury, which is not, after all, the same thing as lying under oath. But both he and the country deserved an actual trial to determine if he had broken the law.

So Clinton did try and work it out; I have no doubts that the Republicans who were so contemptuous of Clinton's offer, which, as you point out, would have vindicated the rule of law more than the phony impeachment Starr's office had cooked up, accurately represented the sentiments Starr's entire staff of young Turk lawyers. The last thing they wanted to do was have to prove a case of actual perjury in a court of law.

Zmulls, your link is broken, here's the correct one: wilsons-wife-wasnt-a-person-but-an-argument.

OC Steve:

A short list of points re Plame.

Was Plame covert? Obviously yes, or there could never be an investigation in the first instance. Even though her cover is blown, the CIA refuses to confirm the details of her status -- that is hardly proof that she was therefore not covert. The right wing talking point that she was not covert is the rankest form of dishonest discourse -- a knowing lie.

Was Plame's covert status proven in the Libby trial? No, and the trial judge specifically ruled that it was a non-issue for the Libby trial. This was largely due to what is known as CIPA -- the procedure for allowing a fair trial of a defendant without also requiring needlessly divulging classified information. Libby's pre-trial strategy was to try to force as many issues into the case that would compel disclosure of classified info which would imperil the willingness of the government to go to trial and have that info exposed.

It was weird in the Libby trial to not address the issue of covert status, and the trial court's ruling obviously helped Libby at trial (it hurt his blackmail effort to thwart the trial) since the jury was never exposed to the full awfulness of the Plame exposure. And technically, whether Libby lied or not has nothing to do with Plame's status (though his motive for lying would clearly be tied to his awareness of her status). The exclusion of the issue from trial was by the trial judge under CIPA.

Was there an underlying crime? Hard to know exactly since the crime of deliberately exposing a CIA agent requires very specific proof of the intent to do exactly that, as opposed to being sloppy and letting the info out. Stupid and careless exposure can still be a crime, but not on the same level. I think zmulls' "girlyman" analysis explains best what probably happened. Maybe there is a violation of the lesser crime in being careless with classified info -- many of the players could be liable for that crime. Fitz does not have to explain his reason for opting not to pursue this.

One of my hunches is that the persons who did the disclosing may not have been aware of the covert status -- only that she was CIA. I think Cheney and maybe Libby knew of her covert status, but it may have been impossible to prove beyond a reasonable doubt that the others did.

Didn't Armitage commit the "crime"? This is one of the most misleading of the wingnut talking points. Yes, Armitage was one of the leakers, but there were many, many leakers. Libby, Rove, Fleisher and others were also leakers. And who in the White House gave Armitage the talking points on Plame? Some of these details are still unknown since a lot of the grand jury testimony is still secret.

What seems clear is that someone, most probably Cheney, found out about the Plame-Wilson connection and orchestrated a smear campaign against Wilson based on what zmulls has humorously (but accurately, I think) called the "girlyman" smear. Cheney's handwritten notes on the Wilson July 6 op-ed are particularly damning. The talking points went out via Libby to other White House personnel and thence outward to numerous reporters. Eventually, Novak bit (many reporters did not see much to the use of Plame to smear Wilson). Armitage was only one of the many flapping jaws. And I bet that most of the flapping jaws (including Armitage) did not know that Plame was both CIA and covert -- or at least it could not be proven in a criminal case.

Of course, a short time later, the White house sanctimoniously announced that it did not know who leaked, and that person would be fired if discovered. And McClellan repeated the lie that Rove (and later he included Libby) had no involvement in the leaks. Not crimes but deeply dishonest behavior by the Bush administration, and the right wing sympathizers continue to repeat these lies about the Plame episode.

How can there be an obstruction without an underlying crime proved? Very well explained above by others. What is being obstructed is not proof of the underlying crime, but the investigation into a possible underlying crime. Obstruction is an independent crime based on improper conduct in response to the investigation -- it is not a "no harm, no foul" situation. Fitz had a great metaphor for it -- you throw sand into the eyes of the umpire trying to make the call and thereby prevent a proper call from being made. Everyone agrees that is wrong, even if it did not in fact prevent the umpire from making a correct call.

To add another thought about Libby -- it must be stressed that it deeply angers federal prosecutors to be blatantly lied to. It is what got Martha Stewart in so much trouble, as opposed to the actual insider trading. And Stewart also trotted out the "no underlying crime" nonsense to excuse her misconduct.

OCSteve: But if my neighbor accuses me of stealing his new chainsaw, before launching an investigation involving me I would expect investigators to at a minimum conclusively prove: a) he in fact had a new chainsaw and b) it is now missing.

And wouldn't you expect the investigators to find it intrinsically suspicious if they found that you were actively blocking their efforts to conclusively prove that your neighbor had a new chainsaw and that it was now missing? If the neighbor intended to provide the receipt and allow the investigators to look at his toolshed, and a close friend of yours was shown to have shredded your neighbor's papers - including the receipt - and cleared out your neighbor's toolshed, claiming your neighbor had asked him to "get rid of all that old junk"? which your neighbor denies?

So your neighbor now has no receipt to show, and your best friend just happened to have shredded a boxful of them, and your neighbor cannot show a neatly ordered toolshed with space for a chainsaw that isn't there, because the toolshed is empty and a whole lot of stuff has gone to landfill.

You say this just shows there never was a new chainsaw - but I think you can see why investigators might fairly want to know why your best friend picked just that box of receipts to shred and why that shed to clear out.

Dmbeaster said it better.

Dmbeaster said it better.

Yup.

Not that it'll make a dent in the adamantium skulls of many reflexive supporters of this administration....

gwangung, FWIW, OCSteve is not a reflexive supporter of this administration.

FWIW, OCSteve is not a reflexive supporter of this administration.

Sorry...I probably wasn't clear ('cause I certainly realize that). He's a person who has a fighting chance of persuading me because he isn't reflexive.

It's just that I know far too many people on the internet and in real life who are reflexive...

I wandered over to Just One Minute and the thread there is unbelievable.


Admittedly, Just One Minute was of the "The Defense will put Mitchell on the stand and blow apart Fitzgerald" mindset right up until the defense rested, but I'm pretty sure they never went so nuts as to play the "Fitzgerald will indict Wilson" card.

Still, it's like bizarro land. Confused (and supposedly lawyers too boot) posters wondering how people can be convicted of perjury and obstruction on an investigation in which no charges were brought, for one.

I don't get that. Say I'm pulled over by a cop because my car is weaving and the cop thinks it's because I'md runk. The cop asks for my license and I shoot him. Should I not be charged for assault (or murder, depending) because I wasn't actually drunk?

The FBI was investigating a crime -- Scooter lied to them. A Grand Jury was empaneled to investigate the crime -- Scooter lied to them. His lies amounted to obstruction of justice because the prosecuter was unable to properly investigate the crime.

He was charged with making false statements to the FBI, with perjury (lying to the Grand Jury), and with obstruction -- all crimes he committed. There is no "Perjury and obstruction are OK if you're certain no crime happened" exemption.

If you're certain no crime happened, you cooperate with the police and tell the truth. There's no reason to lie.

So I don't get OCSteve's objections -- it's a felony to lie to the FBI during an investigation. It's a felony (perjury) to lie to a Grand Jury -- regardless of whether they return any charges. It's a felony to obstruct an investigation, even if no crime was committed.

The reasons for this are simple -- I'm sure an occasional person might not get it, but Just One Minute's comment section is ludicrous.

"Let me give you an example: My brother has a fight with a guy he knows. He hits the guy with a baseball bat. The guy dies that night at the hospital. I burn the baseball bat, because I don't want my brother to go to jail.

In the course of the investigation, the police learn that I had the baseball bat and destroyed it -- I have obstructed justice. Even if an autopsy determines that the man died of unrelated heart failure and not blunt force trauma, I still interfered in their investigation, even if no charges are ever brought to bear against my brother."

I actually don't believe this is true, though I'm using random crap I have rattling around from law school rather than any particular law. If he died of an unrelated heart failure it isn't obstruction of justice. There was no justice interfered with in that case and burning baseball bats isn't illegal (unless it was already under subpoena, in which case you are guilty of contempt of court).

But that said, I think the perjury can support the obstruction charge--maybe. I have to think about it more.

"He was charged with making false statements to the FBI, with perjury (lying to the Grand Jury), and with obstruction -- all crimes he committed. There is no "Perjury and obstruction are OK if you're certain no crime happened" exemption."

That isn't what OCSteve is saying. The Perjury and making false statements part is fine and so far as I can tell makes for a proper conviction of those charges--which already leaves him with plenty of prison time. I'm less excited about obstruction charges without an underlying crime. The nation's experience with drug crimes investigation makes that a very problematic area in my view.

Seb: I am not a lawyer, but: wouldn't it make a rather large difference whether you burned the baseball bat before or after you knew that the authorities were looking for it? And doesn't it make a further large difference, as regards this case, that while burning a baseball bat is not illegal, lying to a grand jury plainly is?

I actually don't believe this is true, though I'm using random crap I have rattling around from law school rather than any particular law. If he died of an unrelated heart failure it isn't obstruction of justice. There was no justice interfered with in that case and burning baseball bats isn't illegal (unless it was already under subpoena, in which case you are guilty of contempt of court).

But that said, I think the perjury can support the obstruction charge--maybe. I have to think about it more.

That's the problem with analogies. For a perfect one, we'd have to construct a crime in which the lying made it impossible for the investigators to accurately determine whether a crime took place.

You'ld have to prove they were lying, or hiding evidence, or something that obscured the truth -- but that's the essence of obstruction.

In Libby's case, he lied a lot and that made it impossible for the prosecutors to do their job -- which was to determine if a crime took place, and if so, who was guilty.

Obstruction has to be a crime in all cases, otherwise you'd be incentives to do lie and perjur yourself.

Fitzgerald had the best analogy -- it's like throwing sand into the umpire's eyes when he's trying to call an out. You make it impossible for him to make the call properly.

And part of the reason it's a felony is really simple: People will lie, perjur themselves, and otherwise obstruct justice in order to avoid justice. You obstruct justice enough, you might get away with metaphorical murder.

"I actually don't believe this is true, though I'm using random crap I have rattling around from law school rather than any particular law. If he died of an unrelated heart failure it isn't obstruction of justice."

The hypo was that the conclusive determination of "what really happened" (in this case, the autopsy) was subsequent to the investigation. So if the police were investigating and you destroyed evidence, you could be liable for Ob of J, even if the evidence didn't turn out to be dispositive -- the fact that it was thought probative at the time (by you and the police, although I don't know what the mens rea requirement is in that regard) is enough.

And the answer to Morat20's point is that finding perjury was necessary but not sufficient to the ob of J charge, I believe -- the jury still have to find that Scooter lied w/r/t a fact materially related to the investigation. It's not as as simple as perjury = ob of J

I tried cutting and pasting from the jury instructions proposed by Libby, but couldn't get it to work. As proposed, the obstruction count has 4 elements: (a) a pending investigation/proceeding; (b) which is known to the defendant; (c) in which defendant intentionally made materially misleading statements to the grand jury; and (d) in order to obstruct, influence or impede the due administration of justice.

Underlying content of the investigation is simply not relevant, as a legal matter.

I'm not sure what instructions were given, but you can assume that Libby was proposing the best interpretation available. The statute at issue is the one quoted by publius below.

Success in impeding the investigation is also not an element. To go to the other analogy, you can get ejected from the game for throwing sand in the umpire's eyes, even if he's still able to call you out.

"The hypo was that the conclusive determination of "what really happened" (in this case, the autopsy) was subsequent to the investigation."

Yes, but not that the determination was based on the baseball bat. If there is no underlying crime, there is no obstruction of justice.

Just think of the applications in the drug war (because that is where precedents that look nice at first often get abused and multiply out of control). I'm not at all comfortable with obstruction having no underlying crime. Perjury is a separate offense. Lying to the FBI is a separate offense. People fail to cooperate with the police for all sorts of reasons, being unable to prove that there was a good case should not therefore be "obstruction of justice" unless you can prove the underlying issue was illegal (in a criminal case) or pertains to the issue at hand such as to prejudice the other side (in a civil case).

By the way, Clinton was guilty of provable perjury, but the obstruction of justice was not conclusively shown (the Willey shennanigans suggested it, but didn't really prove it).

FWIW, OCSteve is not a reflexive supporter of this administration.

I did have to look up “adamantium” though. Used in a sentence: I used an adamantium saw blade to dispose of a chainsaw.


So I don't get OCSteve's objections -- it's a felony to lie to the FBI during an investigation. It's a felony (perjury) to lie to a Grand Jury -- regardless of whether they return any charges.

In my very first comment I said I was (mostly) OK with the false statements/perjury charges. I just didn’t understand the concept of obstruction when no crime has been established and asked for clarification from the crack ObWi legal staff. The concept has been thoroughly explained to me at this point. I’m still not sure I’m happy with how it applied here though.

Didn’t the prosecution make references to her being covert/clandestine throughout the trial? Doesn’t that plant the thought in the jury’s mind, but then due to the judges ruling (CIPA – thanks dmbeaster) he doesn’t have to present evidence to prove it?

And I know most here take it for granted that there is no doubt about her status. But all I’m still hearing are anecdotes like ‘of course she was otherwise the CIA would never have referred it’ or ‘people close said she was’, or ‘there would not have been an investigation in the first place’. I just understand there to be a legal standard for covert and no one has pointed me to where that standard was met. The CIA requested a leak investigation and did not specify that she was covert or blown. The prosecution did not attempt to prove it, and beyond the judge’s trial ruling, it is not mentioned in the original indictment. I think this is more than a wingnut talking point but I’ll concede it if someone can show me where it was conclusively established.

"Underlying content of the investigation is simply not relevant, as a legal matter."

I actually think it is relevant under (d). For example if the FBI tried to frame someone, and in the course of doing so conducted a facially ok 'investigation' in which someone lied to them, I don't think (d) could be shown once the FBI frame-up came to light.

To take devil's advocate for a minute, since I for one can certainly not be described as a "reflexive support of the Bush administration":

moe99: Patrick Fitzgerald said at the press conference today that he was 100% certain that Plame was covert. That's all the verification I need.

Morat20: The recommendation by the CIA to the Justice department for a criminal investigation should be proof enough that Plame's status was undercover.

Anderson: A CIA referral surely suffices to satisfy this point.

I am fairly dubious about this argument, and indeed can see that the circumstancial evidence that seems to show that Plame pretty definitely was covert, could equally be interpreted to mean that the CIA wanted to make it look as if she were covert.

Wait, I have a conspiracy theory! Maybe Plame wasn't covert, or maybe she was, but maybe the CIA intended for Cheney and Libby et al on that famous conversation on Air Force One to believe she wasn't covert: maybe they knew Cheney and his crew would be reckless. Maybe they set them up hoping to take down Cheney, given that they knew that blame was going to fly for the invasion of Iraq and the claimed WMD, and they intended for Cheney to be too busy figuring out how to escape indictment over outing Plame, to have any time to throw stones at the CIA and claim "they gave me the wrong information!"

I don't actually think this is what happened. I don't think Cheney needed to be set up. But if the only evidence we had was of the order of the CIA referring the crime to the DoJ, or Fitzgerald saying he was 100% sure Plame was covert, then I'd be - reluctantly - standing dubiously with OCSteve.

But we do have more evidence than that. Plame really was a CIA employee, and unless the CIA had been setting her up for years for this, it does look like - until she was outed - she really was covert.

And, whatever hairsplitting goes on, and how ever likely it is that I might out a covert CIA agent if such information came my way, Cheney and Libby and the rest of the White House crew were supposed to be part of the US government, which I am not: they were supposed to feel loyalty to the people who work for the US government, which I have no reason to. If I outed the identity of a CIA covert agent, it might or might not be a criminal offense, and we could disagree over whether it had been a politically effective thing to do - but it wouldn't be a betrayal, because I have no obligations or responsibilities towards US national security.

Cheney does. So does Libby. Criminal offense or not, what they did to Plame stinks.

I haven't followed this closely enough to be able to pull up the proof that Plame was covert. I will note that Fitzgerald said he was 100% sure that her status was classified, that the CIA referred it, and also that a bunch of people (e.g., Larry Johnson) have said that she was a NOC; and I have never seen this convincingly denied. On the other hand, I am not expecting the CIA to come forward with full documentation of someone's undercover status -- that's the sort of thing about which I don't expect to find something like a smoking gun. I am convinced that she was a NOC, myself.

However: one thing that puzzles me about some of the reaction on the right (not referring to anyone here) is the way they alternate between caring only about the legal details and then somehow not caring about the legal details, as it suits their purpose. I mean:

If you look at the big picture -- the big moral picture, in which the main point doesn't have much to do with the specifics of the law governing outing agents, etc. -- the fact is that the administration outed a CIA agent for political purposes. The legal questions revolve (iirc) around such questions as: had she worked overseas within the last 5 years). The moral question does not. Outing an undercover agent puts her previous contacts in jeopardy, undercuts the confidence of other agents that their government will protect their identities, and does all sorts of other Very Bad Things. Regardless of whether it's a crime, this is just an appalling way to act -- sort of like the Walter Reed thing in its absolute disregard of the claims of people who have put themselves at risk in the nation's service.

One could, I suppose, decide to disregard all of this and focus on the narrower legal question of whether crimes were committed, and if so whether they can be proven in a court of law. In that case, you get to disregard the above. But it's pretty odd to disregard all of that on the grounds that it's not a crime, and then decide to disregard actual crimes on the grounds that suddenly, what's relevant is not whether actual crimes were committed, but the big picture, from which the utterly reprehensible nature of what Cheney and his underlings did has mysteriously been excised.

"Cheney does. So does Libby. Criminal offense or not, what they did to Plame stinks."

That is a fair assesment, and we really don't have to be overly legalistic.

If you look at the big picture -- the big moral picture, in which the main point doesn't have much to do with the specifics of the law governing outing agents, etc. -- the fact is that the administration outed a CIA agent for political purposes. The legal questions revolve (iirc) around such questions as: had she worked overseas within the last 5 years). The moral question does not. Outing an undercover agent puts her previous contacts in jeopardy, undercuts the confidence of other agents that their government will protect their identities, and does all sorts of other Very Bad Things. Regardless of whether it's a crime, this is just an appalling way to act -- sort of like the Walter Reed thing in its absolute disregard of the claims of people who have put themselves at risk in the nation's service.

One could, I suppose, decide to disregard all of this and focus on the narrower legal question of whether crimes were committed, and if so whether they can be proven in a court of law. In that case, you get to disregard the above. But it's pretty odd to disregard all of that on the grounds that it's not a crime, and then decide to disregard actual crimes on the grounds that suddenly, what's relevant is not whether actual crimes were committed, but the big picture, from which the utterly reprehensible nature of what Cheney and his underlings did has mysteriously been excised.

Yes.

"Cheney does. So does Libby. Criminal offense or not, what they did to Plame stinks."

That is a fair assesment, and we really don't have to be overly legalistic.

Double yes.

covert status is so important, that even, as happened here, where a covert agent is outed, the CIA generally doesn't verify covert status. This keeps the question open which is a godsend for those who need a reason to keep questioning.

Plame is being interviewed later this month by Keith Olbermann. It would be nice if she could verify her covert status but I am assuming she cannot for the same reasons that the CIA still does not publicly verify it.

And the jury instructions summarized above make it clear that only if the perjury charge stands can the obstruction of justice charge also stand. The obstruction took place at the time the perjured testimony was offered by Libby to government investigators. As a former SEC enforcement attorney, I am well aware of both perjury and obstruction of justice, although my enforcement cases w/ one exception were exclusively civil rather than criminal, and though I researched perjury extensively we never used it in any of my cases, particularly given the difficulty with proving it in a court of law. So my admiration for Fitzgerald is based in part upon my own limited experiences.

The nuance I think people are missing here is that there are two different definitions of "covert."

There's the "covert" we're all familiar with from the dictionary, and I'm fairly certain this is the sense in which Fitzgerald uses the word when he says he's 100% certain Plame was covert. Her job as a CIA employee was classified; ergo she was covert.

But then there's the legal definition of "covert" for purposes of the IIPA, which includes all sorts of technical requirements, like the person having served outside the U.S. in the last five years and so forth.

If you can't satisfy the requirements of the IIPA definition, then there's no violation of that particular statute. But it doesn't mean you're not "covert," it doesn't mean your relationship with the CIA wasn't classified, it doesn't mean a leak of your identity couldn't be a violation of an entirely different statute.

The IIPA doesn't rewrite the dictionary. Valerie Plame was clearly covert in the sense that virtually no one knew she worked for the CIA. People who say she wasn't "covert," when what they really mean is that she didn't meet the IIPA's definition of covert, are generally trying to obfuscate the issues.

covert status is so important, that even, as happened here, where a covert agent is outed, the CIA generally doesn't verify covert status.

"If we told you about it, we'd have to kill you."

It also occurs to me that this is a case where Bush apologists are attacking the use of classified information in a case where the the consqueences are very real and very damaging to national security.

Also, you have to bear in mind one other tidbit: Plame's status could be declassified at the whim of the President.

He could, in fact, go on TV and read aloud the list of CIA NOC agents and not do anything illegal.

Now, Cheney (IIRC) at one point claimed he had the same power -- part of the incredible muddle of this case (and the probable reason Fitzgerald won't pursue it further) is it'll quickly get to Dick, and whether or not the executive has the authority to start burning agents for political purposes.

That is a question for Congress, not the courts. Fitzgerald has struck me as a very solid and reliable prosecutor. He was tenacious, but stayed within his original mandate and didn't overreach. A more zealous prosecutor might have charged Rove and Armitage or even Cheney, and had none of them stick. Fitzgerald seems to be very professional about the whole thing.

My intent is not to split legal hairs – I’m not qualified.

I expected the perjury charges to fly. To the extent that I was even aware of an obstruction charge, that was a surprise to me today. I now have a better understanding of how that works. Thanks all for the explanations (I still find it just a little scary though.)

I do hope that her status is resolved beyond doubt at some point – it does feel (to me) like a question mark hanging over this whole thing.

Legal vs. Moral – of course what they did was wrong. Not just from the perspective of allegedly blowing a NOC – simply from the perspective that if you have a problem with a man you take it up with the man – you don’t drag his wife into it.

'But then there's the legal definition of "covert" for purposes of the IIPA, which includes all sorts of technical requirements, like the person having served outside the U.S. in the last five years and so forth.'

My understanding is that more than one of her former colleagues have publicly said she was a NOC, within five years etc.

Fitzgerald seems to be very professional about the whole thing.

I mostly agree with that, with one exception. At his indictment presser he stated that Libby was the first official known to have told a reporter. At the time he said that he knew it was in fact Armitage. What’s up with that?


Jes: Wait, I have a conspiracy theory

Not even close. The actual conspiracy theory goes like this: CIA and State have been undermining the administration since day one. Mostly it is an entrenched cabal of Democrats. The steady stream of leaks and the slant of those leaks are proof. The CIA sent Wilson knowing what he would report on his return. The key is that he was not required to sign a secrecy agreement of any kind, not even a NDA. That left him free to pen his op-ed. Furthermore, he did not submit a written report, so there is no real paper trail to contradict whatever he decided to say.

There doesn't have to have been an IIPA crime for the investigation to have been validly undertaken. Suppose VP's status was learned by ILL, or KR, or such, as classified information. And suppose one or more of them revealed it, without proper authorization,* to someone who didn't have a security clearance.

Even if this is not a crime, it's a violation of the regulations/agreement that are part of the security clearances that ILL, KR, etc have. And thus worthy of exploration.

For this reason, the whole 5 years thing has always been misdirection.

* If the President did authorize the disclosure, of course, he could have said so at the outset of the thing, instead of saying that leaks are bad and that the evildoers would be brought to justice.

"If there's a leak out of my administration, I want to know who it is," Bush told reporters at an impromptu news conference during a fund-raising stop in Chicago, Illinois. "If the person has violated law, that person will be taken care of.

"I welcome the investigation. I am absolutely confident the Justice Department will do a good job.

"I want to know the truth," the president continued. "Leaks of classified information are bad things."

He added that he did not know of "anybody in my administration who leaked classified information."

Bush said he has told his administration to cooperate fully with the investigation and asked anyone with knowledge of the case to come forward.


I mostly agree with that, with one exception. At his indictment presser he stated that Libby was the first official known to have told a reporter. At the time he said that he knew it was in fact Armitage. What’s up with that?

Misspoke? Wasn't sure about the timeline at the time? (This all did happen in a matter of days) Was still hoping to push Libby into coming in and talking? Was nitpicking -- Libby alluded to it first, but Armitage spoke the name first?

Judging by the way he handled Rove, Libby could still have cut a deal anytime up until the actual trial started. (Rove certainly cut a last minute deal).

Yes, let's not be overly legalistic. Let's assume Plame was covert. As a covert agent, she recommends her husband for a CIA assignment. Joe Wilson, the husband, is hired by the CIA, travels to Africa, performs his assignment and upon his return gives a verbal report to the CIA.

Nobody finds it odd that Wilson, who worked for the CIA, is later allowed to write a New York Times editorial describing his secret mission to Africa? Since when does the CIA permit "My Mission for the CIA" articles? Not only does he describe his mission, but he also claims special knowledge; he believes the President of the United States lied the country into war.

Are we to believe there was no concern by the CIA that if one works for the CIA and one's wife is a "covert" agent that making outrageous claims in a New York Times editorial might be attracting undue attention towards the "covert" agent wife? Wasn't it the publicity seeking, by Wilson, which placed his "covert" wife at risk?

Was it Armitage or Wilson who outted a "covert" agent.

purely academic question: is it legal to tell Libby: "don't say anything about Cheney to reduce your sentence--President Bush will pardon you when the time comes"?

I know the pardon power is pretty unreviewable and hard to limit; but I'm wondering if the quid pro quo is allowed (of course, it would presumably have to be an explicit quid pro quo and that wouldn't really be necessary, in practice. I'm just curious.)

Well it’s legal for the prosecutor to say: “Spill your guts on Cheney and I’ll give you immunity.”

Hey – wait a minute, you’re the lawyer here :)

One thing that should be interesting if the pardon question heats up: Where will HRC stand? I would think that pardons would be the last thing she would want to discuss, or especially condemn.

M. Stone:L Wilson was not hired by the CIA. He was asked to go, but he did not work for them. Thus I would assume he did not sign nondisclosure agreements.

His wife, by contrast, did work for them, and presumably did sign those agreements.

OCSteve: I know you were channelling, not speaking for yourself, and I'm just talking about the people you were channelling, not you. But: you probably realize how incredibly funny it sounds to those of us on the left to be told that the CIA is a bunch of liberals. Next we'll be hearing that the US Marine Corps is just a bunch of Democrats and socialists. Maybe after that the John Birch Society. Who knows?

Hilzoy: But: you probably realize how incredibly funny it sounds to those of us on the left to be told that the CIA is a bunch of liberals.

I assumed you would get a kick out of that.

You would be surprised though (or not) how many people take that as gospel.

OCSteve: to me, it's not as funny as when those of us who opposed the Iraq war used to get lectured on how we had no concern whatsoever for suffering people in distant countries, after having spent most of the last two decades having people think of us as wandering around saying: ooooh, the poor Guatemalans! the indigenous peoples of Australasia! And who can forget the tiny furry baby seals!!!!! To suddenly switch from being thought of as someone who took an overdose of an empathy drug to a callous and indifferent person, too caught up in my own liberal whatever to give even a thought to the millions crushed under Saddam Hussein's fist -- it gave me whiplash.

OC Steve:

Didn’t the prosecution make references to her being covert/clandestine throughout the trial? Doesn’t that plant the thought in the jury’s mind, but then due to the judges ruling (CIPA – thanks dmbeaster) he doesn’t have to present evidence to prove it?

As a trial lawyer, I was addicted to reading the Firedoglake coverage every day. There are many weird wrinkles to this question.

There was no way to prevent the jury from wondering about Plame's actual status -- but they were repeatedly admonished by the judge that her status was not an issue. The prosecution was also careful throughout to make that point.

But the facts on the point came out in many other ways for legally valid reasons. The most common was proof of Libby's state of mind to prove intent to lie. Thus proof that Libby was aware of the potential severe consequences of outing a potentially covert agent was admissible for purposes of his state of mind. This legal fiction -- that finders of fact can make use of a fact for one limited purpose and not use it for others -- is a bizarre one but entirely legal.

For example, newspaper stories found in Libby's files that talked about the issue were admissible as to his state of mind that would induce him to lie. Crazy, even though the jury was specifically told to use the stories strictly for this purpose, and not take as true whatever was written in the story.

I actually think this particular jury, which from signs so far seemed above average in careful deliberation according to the instructions, probably was not tainted by the potential prejudice of this. These kind of judgment calls on evidence get made all the time in criminal cases.

I am sure that the prosecution would have liked to have gone into the details of Plame's actual status and the impact of the outing -- like in a child abuse case, it lowers the burden for conviction since the jury wants to find someone guilty for such evil. But I suspect that the CIA made it clear that they did not want to divulge the details in the case, and under CIPA the judge found that her status was taken out of the case without violating Libby's rights.
______________

I just understand there to be a legal standard for covert and no one has pointed me to where that standard was met.

I think you are right that there has never been any public proceeding confirming this fact as true. But think about the strength of the circumstancial evidence on this.

My understanding of this is that after the CIA referred it, the Department of Justice makes its own independent determination as to whether an investigation was warranted. I am not aware that there is any public disclosure of exactly what happened, but think of the context. Ashcroft had to decide what to do with this extremely sensitive case. If Plame did not meet the criteria under IIPA as covert, would Ashcroft still recuse himself and have the matter continue with a special prosecutor?

The Bush administration could have safely buried this thing by public disclosure that her status was non-covert under IIPA, and terminated any investigation. End of problem. But they were forced to play this one by the book -- the inference that she was therefore a NOC protected by IIPA is extremely strong.

I would also point out that as often as the right wing makes this claim, it is never backed up with any evidence. It would seem to be easy to establish that she was not covert, and perfectly legal to do so with publicly available evidence. It is simply mindlessly repeated so that its own echo is alleged proof, just as Andrea Mitchell did in that famous episode with Imus (she later jokingly described herself as "drunk" when she made the remark).

Hilzoy: Yeah well… Consistency has never been our strong suite.

In my favor – I don’t give a damn about baby seals now any more than I did then. I say let the Eskimos club ‘em before they drown in the global warming.

But: you probably realize how incredibly funny it sounds to those of us on the left to be told that the CIA is a bunch of liberals.

Not only is the CIA a bunch of liberals, it's a bunch of liberals with an astonishing ability to predict the future.

They somehow knew George W Bush would be President and that he would go to war with Iraq.

They somehow knew he would accuse Saddam Hussein of trying to acquire yellowcake from Niger - and planned to have Valerie Plame find out that Bush would say so just in time to have her husband, Joe Wilson, sent to Niger... all for the purpose of crying foul when Bush said those "16 words" (which the CIA also accurately predicted) so Joe could write an Op-Ed for the NY TImes.

The only thing more miraculous than those liberals in the CIA accurately predicting the future is their patience. Valerie Plame spent 25 sitting at a desk just waiting for her chance to sabotage George W Bush. Joe Wilson spent all those years in the diplomatic corps, and even working for the senior President Bush, just so he could position himself to be the guy they sent to Niger as part of the dastardly plot to Make Bush Look Bad.

It's amazing, really.

OC Steve:

I mostly agree with that, with one exception. At his indictment presser he stated that Libby was the first official known to have told a reporter. At the time he said that he knew it was in fact Armitage. What’s up with that?

No -- Libby was the first in discussions with Judy Miller on June 23. Armitage first spoke to Novak on July 8.

This is yet another example of deliberately false right wing talking points (which I understand you are just repeating here rhetorically, OC Steve). It is worth noting just how much disinformation has been spewed by the right wing on this. Anyone with an open mind would take note of the fact that Libby's defenders seemed wedded to deliberate falsehood (which includes the nonsense about Wilson lying, etc.).

dmbeaster: This legal fiction -- that finders of fact can make use of a fact for one limited purpose and not use it for others -- is a bizarre one but entirely legal.

Now that just makes my brain hurt.

Thanks for the follow up. You make a strong case regarding the circumstantial evidence.

Any opinion on the new trial or appeal strength? I’m seeing a lot tonight in the rightosphere on a few points:

-Jury confusion as evidenced by the questions so late in their deliberations, confusion about reasonable doubt, etc.

-Fitz’s closing argument was politically charged, referencing Cheney repeatedly, making his closing arguments less about Libby and more about Cheney.

-The garrulous juror, that he seemed to have influence on the rest of the jury, the fact that he is an ex-reporter and may have lent weight to Russert’s testimony (and thus Fleischer’s because it meshed with Russert’s)…

Bringing you tomorrow's talking points tonight…

For my mind, one very sure and strong indication that Wilson broke no law and violated no agreement when writing his editorial is that the administraiton has never once (to the best of my knowledge) directly accused him of either. If they had grounds for action, they'd have taken it.

Yes, but not that the determination was based on the baseball bat. If there is no underlying crime, there is no obstruction of justice.

...Perjury is a separate offense. Lying to the FBI is a separate offense. People fail to cooperate with the police for all sorts of reasons, being unable to prove that there was a good case should not therefore be "obstruction of justice" unless you can prove the underlying issue was illegal (in a criminal case) or pertains to the issue at hand such as to prejudice the other side (in a civil case).

Sebastian, think of perjury as being the mental/verbal equivalent of destroying a potential murder weapon (just harder to prove since it's nonphysical) -- that intentional action, combined with knowledge of the ongoing investigation creates the separate obstruction of justice charge. It's just a straight-up specific-intent crime.

Perjury is merely the prerequisite in this case because the prosecution has the burden of showing intent and knowledge (as opposed to say, destroying the murder weapons negligently or recklessly in the hypo).

Or, put yet another way, the charge is not for actually interfering with the investigation, but rather an intent to interfere. I'm sure we're all aware that if you shoot at someone with intent to kill and happen to miss, you don't just get to walk away.

I'm not sure how this could be any clearer.

I just heard this report on NPR on the way home. It totally made my day to hear: "NPR reporter Libby Lewis is covering the Lewis Libby trial today"

Thus I would assume he did not sign nondisclosure agreements.

Depends on what sort of NDA you're talking about. If it's a NDA for clearance, he cannot (take "cannot" loosely; things tend to work differently at those levels, perhaps) have accessed any cleared information without signing one. If it's some sort of blanket, corporatese NDA, possibly you're right.

OCSteve: it may make your brain hurt, but I think there's a good reason for it. Namely: sometimes it's necessary to prove some fact in order to make a charge stick, and it's impossible to prove it without information that a jury might find prejudicial.

For instance: I was once an alternate on a jury in a case that involved a gynecologist who was accused of sexual molestation during an exam. (Ugh!) Obviously, no one was contesting the fact that the gynecologist had touched the woman's vagina -- he had given her a gynecological exam, after all. So there was no forensic evidence; it all came down to state of mind.

Now: what made this more than 'he said she said' was the fact that other women had alleged that he had done this to them, and had done things at the time like: write letters to the American College of Obstetrics and Gynecology (or whatever it's called) saying so; and these women did not know the plaintiff. That's relevant insofar as it establishes a pattern; it's also relevant insofar as it makes it much, much less likely that the guy just happened to do something that felt an awful lot like sexual molestation by accident. He had been warned by the Am. Coll. ObGyn that he would lose his certification as a gynecologist if there were any more complaints, so you'd think he'd be extra specially careful.

However, the other women were not bringing charges -- the statute of limitations had expired. So we on the jury were explicity instructed only to use the evidence of previous acts IF we thought he had committed this one, to establish state of mind; NOT to ask ourselves: is he guilty of anything?

I don't see how that case could have been tried without bringing in the other evidence. We were, though, told over and over and over how to use it, and while (as I understand it) the jury decided on stupid grounds, the stupidity wasn't: making that mistake. (It was: thinking a doctor would never do such a thing.)

I was even more complicated: I would have voted to acquit on the grounds that while I thought he did molest the plaintiff, I didn't think so beyond a reasonable doubt, since while I found the other women extremely credible, the woman actually bringing the complaint was not, and so, limiting myself to the question 'did he do THIS act?', I had to say: 'I'm not sure beyond a reasonable doubt', since I knew that the other women's testimony couldn't be used to establish that fact.

Me on juries: always a delight. (I have never been kicked off. Not once. Everyone says academics are always kicked off, and I, an academic whose specialties include guilt and responsibility, would seem like an especially good candidate for dismissal. But noooooo...)

OCS, none of those things sound like reversible errors. Did Libby object during closing? I don't recall hearing that he did. Obviously there's nothing wrong with an influential juror -- what do you think Hil would be like on a jury? And the confusion point is just silly.

If there are errors, it seems to me that they'd have to do with the memory expert, and maybe Mitchell. Judge Walton seems to have run a pretty thoughtful proceeding. (I've usually liked him, but can't be too effusive, since I have an appeal pending from a case I have with him).

Libby doesn't have to get a new trial to stretch this out. He can move for a new trial, then file (I think) a post-sentencing motion, and then an appeal. With some luck (on his part), it'll take a year at least to get from noting an appeal to reading a decision. If you assume he can get well into the summer before he has an appealable order, that means it's well into 2008 before his conviction is affirmed. Cert denied in late fall 2008. Pardon just as he has to start his sentence.

I would expect that Judge Walton is going to take his time with the post-trial motions: he's undoubtedly pretty tired from the trial, motions in his other cases have stacked up and now require attention, and he knows that this will be a well-funded and well examnined appeal.

OCS, the objection point is the biggest deal. You don't get to complain on appeal, or in a post-trial motion, about anything you didn't preserve at trial. It does no good at all to sit around and think about all the things you wish had been different: you have to show that Judge Walton was given a chance to rule on something, and ruled the wrong way.

jesurgislac writes "as all we have to show she wasn't is a bunch of journalists who claim - without evidence - that "everybody knew" she was a CIA employee."

And the assertion from Ms. Toensing "who wrote the law" that the agent must have been assigned long-term outside the US - when the law itself says no such thing.

Which is to say, she's lying now because her buddy is being foist by her petard.

You cannot impeach the jury's verdict, period, absent evidence of bribery or improper influence. It's an ironclad rule of law that you cannot ask the jurors what they talked about and then appeal on the grounds that they discussed the case in the wrong way; among other things, jurors would find themselves endlessly harassed by the losing party. Speculating about whether the jury was "confused" falls squarely into this category; the only issues are whether the judge instructed them properly and whether the verdict is consistent (which it obviously is).

That's not to say that there aren't reasonable grounds to raise on appeal, but all this business about the jury is just total nonsense. Libby's supporters disagree with the jury, therefore the jury was a bunch of idiots. That's all the substance there is to it.

OCSteve writes: "Jury confusion as evidenced by the questions so late in their deliberations, confusion about reasonable doubt, etc."

The lawyers covering the trial for Firedoglake noted that this is common at trials, and often comes toward the end of deliberations - ie, when the jury is thinking they might be sending someone to prison and wants to make *sure* they understand the concept of reasonable doubt.

Also, given the elaboarate process they apparently took, where they used a zillion 24"x24" post-it pad sheets and diagrammed the whole trial and all the evidence, it would make sense that they would be asking questions towards the end - the initial phase of deliberations would be taken up by getting the facts together and written down.

"I just understand there to be a legal standard for covert and no one has pointed me to where that standard was met."

Well, technically, Libby's trial was about an entirely orthogonal issue, so whether Plame was covert really didn't enter into it.
That would only have mattered had Libby been charged with violating the IIPA, which he wasn't.

If I recall correctly, Fitzgerald wouldn't give a definitive answer on it, implicitly because he considered it to still be sensitive information.

That, of course, could have been tactical on his part, as a way to point out the significance of the perjury. Similarly, in a slide during final arguments, he had the faces of the witnesses, except two CIA witnesses who were represented by the CIA seal or logo or something - even though they had appeared in court and been seen by the jury - presumably to underline to the jury the importance of preserving the secrecy of CIA employee identities.


Also, the 'confusion' argument really fails when you consider who the jurors were. At least one PhD, a web guy who works for the Feds, an MIT-trained economist, etc.

I can imagine some right-wingers assume a DC jury was made up of poorly educated welfare queens and drug dealers, but that definitely was not the case.

M. Stone writes: "Are we to believe there was no concern by the CIA that if one works for the CIA and one's wife is a "covert" agent that making outrageous claims in a New York Times editorial might be attracting undue attention towards the "covert" agent wife? Wasn't it the publicity seeking, by Wilson, which placed his "covert" wife at risk?"

Well, given that the CIA often works out of embassies, and that Wilson was the attache (or whatever) in Baghdad at the time of the first Gulf War, and that Wilson had spent quite a bit of time in Africa, and that Wilson worked in defense-oriented work in the Clinton administration, and that ex-CIA head Bush 41 thought the world of him and gave him a medal, it would not be the least bit unusual for Wilson to have plenty of connections with the CIA in his own right.

Given all that, I'd think the odds of his *wife* being a CIA NOC are really quite tiny. The odds favor there being only one CIA-connected person in a family, I should think.

Porter Goss used to be CIA. So was congressman Rob Simmons. Do you automatically assume their spouses are probably CIA? I doubt it.

hilzoy: Even if Wilson did not technically work as a CIA agent and did not sign a non-disclosure, writing the editorial still seemed too close to home. But, I stand corrected, Thanks.

Jon H: Really? If my CIA NOC wife recommends me for a CIA job am I really going to write a highly inflammatory editorial about it in the NYT? That doesn't seem a little risky to you?

The question is not would anyone automatically assume the wife of Wilson was CIA, but was it smart to advertise so close to home? If the NOC wives of Portor Goss or Rob Simmons sent them on a CIA job do you think they would write about it? I doubt it.

"Perjury is merely the prerequisite in this case because the prosecution has the burden of showing intent and knowledge (as opposed to say, destroying the murder weapons negligently or recklessly in the hypo)."

It seems to me that all this is covered in the perjury charge, and so a separate perjury-based obstruction charge is wholly redundant. (And please realize that I'm not offering an excuse at all. I tend to think that perjury is a WAY MORE SERIOUS crime than most people seem to treat it as).

M. Stone: The question is not would anyone automatically assume the wife of Wilson was CIA, but was it smart to advertise so close to home?

If you read Wilson's op-ed, you will find that the third paragraph briefly outlines Wilson's direct experience in Iraq and in several African countries. The fourth paragraph opens "It was my experience in Africa that led me to play a small role in the effort to verify information about Africa's suspected link to Iraq's nonconventional weapons programs."

The CIA is not mentioned until the 5th paragraph, and then anonymously and plurally "agency officials", "officials at the Central Intelligence Agency". Given no one knew that "Mrs Wilson" worked for the CIA - ostensibly, Valerie Plame's employer was Brewster-Jennings - I think that given Wilson felt obliged to write the op-ed, he structured it well so that no one would have any reason to suppose any personal connection between himself and the CIA.

I hadn't thought of it before, though textual analysis of how people say things is part of my job, but in fact, yes, the way in which Wilson wrote the article is extremely smart.

Sebastian: It seems to me that all this is covered in the perjury charge, and so a separate perjury-based obstruction charge is wholly redundant.

Not really. Bill Clinton perjured himself when he said that he hadn't had sex with Monica Lewinsky. (Or didn't, if you accept the standard het male's defintion of "having sex".) Either way, the perjury charge was that having been asked if he'd had sex with Lewinsky, he lied.

Since whether Clinton had had sex with Lewinsky or not was entirely irrelevant to the case - such as it was - he couldn't be charged with obstructing justice, and wasn't.

Whereas the information that Libby lied about was vital to the investigation of whether a prosecutable offense had been committed when Cheney, Libby, et al, decided to leak the identity of Joseph Wilson's wife to the media.

May I ask a probabely stupid question? Why is there a pardon option in the US? For me it is extremely weird to see that people can get a pardon if they know the right people. Especially if they can later on get governmental power again.

Why was it institutioned? And what limits are there (I assume there are limits. Or could he pardon murderers if he liked them? Seems unlikely, but so does the whole pardon thing for me)?

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