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Saturday, October 29, 2005

an astonishing Fitzmas

I was disappointed with Fitzmas at first. Cheney didn't get directly implicated, which I thought had at least an outside chance of happening, and Rove didn't get indicted, which I thought had at least a 2/3 chance of happening. Scooter Libby just seemed like the smallest big fish that could have been fried. Then, however, I watched the press conference. Before you read anything else, you should do the same. It's 15 minutes long, but it's probably some of the most newsworthy 15 minutes of the last few years of political history. Video: wmp and qt.

What becomes immediately clear from watching the press conference is that Patrick Fitzgerald is one angry boy scout. This is a man who takes the law very seriously, and is clearly absolutely furious that this White House continuously and intentionally lied to him. He makes an incredibly strong case for the fact that Libby just flat out lied to save himself, and that everything Libby said had to be a lie. Some have described perjury and obstruction of justice charges as just "gotcha charges" when you have nothing else to do. This is certainly not that.(more in expanded post)

One of the problems with the case at this point, of course, is that it's almost impossible to know what will happen next. Fitzgerald describes why secrecy is important, but it's still incredibly frustrating. However, one Andrew Sullivan reader (and Sullivan himself) have an interesting take:
A READER NAILS IT: This blog's greatest resource is you. Here's an email that shows why:
Just got through reading a transcript of the Fitz press conference, and a few things stood out.

As bizarre as that baseball analogy was, I think it said a lot about what might happen in the next few days or weeks. Seems to me that when discussing the possibility of a leak-related crime, e.g. violation of either the Intelligence Identities Act or Espionage Act, Fitz focused on how such prosecutions were very difficult because they require proof of a mental state. (Hence the silly analogy about a pitcher throwing at guy's head.) Under both statutes, the disclosure of classified info must be intentional or purposeful, i.e., the perp must have "known" that the information was classified (for the Espionage Act) or that the agent was "covert," among other things (under the Intelligence Act). As Fitz asked, "was this something where he intended to cause whatever damage was caused? Or did they intend to do something else and where are the shades of gray?"

I don't know what Fitz knows. But I think he is one inch from prosecuting the leak itself - at least his public comments leave the impression that he's pissed about it - and the only thing holding him back is that he's afraid he can't prove state of mind. Proving state of mind is really hard in any case -- and it's especially hard when the defendant is an intelligent career political operative with an expensive white collar defense lawyer. I think Fitz can do it, and I think Fitz thinks he can do it, but he seems to be playing it cautious. Why?

Let's just take the Espionage Act. Fitz clearly said that Plame's position was classified, he implied strongly that it related to national security, and as Josh Marshall pointed out in a recent post, the indictment itself states that both Cheney and Libby knew the precise division of the CIA where she worked, which by definition made her covert. So right there - as soon as he tells that to Miller - you have a prima facie violation of the Espionage Act.

Fitz also said, "I don't buy that theory [that one should never use the Espionage statute], but I do know you should be very careful in applying that law because there are a lot of interests that could be implicated in making sure that you picked the right case to charge that statute ... You want to know what their motive is, you want to know their state of knowledge, you want to know their intent, you want to know the facts." He went on to lament the fact that Libby had lied, thus throwing the proverbial sand in his eyes.

What's all this mean? Well, seems like Fitz has a pretty strong case for the Espionage Act, and if Plame met the objective standards in the Intelligence Act, for that one too. And it seems like the fact that Libby lied repeatedly is very strong evidence of a culpable state of mind, belying any claim that he didn't "know" the info was classified or that divulging it was wrong. Add that to the very specific allegation in the indictment that he knew exactly where she worked, and there it is.

So why not charge it? Because Fitz has Libby nailed on the 5 counts from today's indictment. Just nailed. So he's bringing Libby in on those charges, they're going to talk some turkey, and Fitz is going to see if Libby will talk, maybe about VP, maybe about Official A (who's clearly Rove), or maybe about the VP's moles at State and in the CIA. Offer some carrots - maybe no jail - but if Libby refuses, then Fitz brings down the espionage or intelligence act charges. Libby has nowhere to go, and Fitz knows it. In my view, he's going to try to exploit that opening before wrapping this thing up.
That's entirely my view as well, after mulling this over some more for a few hours. From the evidence we now have, it seems crystal clear to me that Libby knew he was out of line when he leaked the Plame name, and perjured himself to protect himself and the real source of the leak, Cheney. He gambled that the reporters wouldn't squeal; and that he could cleverly spin his phone conversations so that the information seemed to come from reporters, not him. The question now is whether he will now turn against his colleagues and master to save his own skin. This story is just beginning. Ultimately, it's about Cheney.
It will be interesting to watch as Libby's trail, and any other subsequent indictments either of Cheney or Rove, pull the curtain back on this administration's hawkish ideologues, internal disputes between the Dep. of Defense and State, or between the CIA and the Vice President's office. This could be huge.

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