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November 01, 2005

Libby's Defense?: Materiality

Or, "How Can You Have Any Pudding If You Don't Eat Your Meat?"

To be convicted of perjury or making false statements, the alleged false statement must be material to an investigation. Relevant to establishing the truth or falsity of an element of a claim or criminal charge.

Even assuming Libby did in fact lie (something not as clear as it may have seemed on Day One; check out Fitzegerald's friend and defender Andy McCarthy noting the thinness of some of the counts, quoted over a Naked Testicle Spiderman's place), Fitzgerald would still have to show his lies were material.

First of all, if no crime occurred, it's questionable if any subsequent lies were material. Fitzgerald asserts repeatedly that Plame's status was "classified" (not "covert"), and that leaking that information could implicate one classified information law or another. But what proof does he have that she was really classified? And even if she was, as a technical matter, labled "classified," was she really classified as we would typically understand it? With her driving to Langley every day, and her husband reportedly introducing her to people as "my CIA wife," it would seem she wasn't classified, even if that was the formal status of her affiliation with the CIA. As has been noted elsewhere, intelligence agencies frequently stamp The New York Times as "classified."

If it's not really a secret, it's not really classified. A man shouldn't go to jail because of the cover-your-ass kneejerk stamping of everyfrickingthing as "classified" by very low-level intelligence employees, who have nothing to gain and everything to lose by not stamping something as "classified."

Again, Fitzgerald asserts she was in fact classified. I question if that's true at all. If it's not true-- there should have been no subsequent investigation, as there was in fact no possible "underlying crime" to investigate. Making Libby's lies, assuming they were lies, quite moot. And immaterial.

Secondly, Fitzgerald asserts that Libby's lies were material because they prevented him from judging the intent of Libby. Establishing criminal intent is always an element of a crime; it's even trickier in a case like this, where one must not only prove intent, but specific intent, the willfull purpose to advance a specific bad cause. In this case, it's along the lines of "with the intent of undermining the intelligence capabilities of the United States."

But there are only two specific intents ever charged against Libby. And only those two are plausible at all.

FIRST, Libby's attackers say his intent was "to smear a political opponent."

SECOND, Libby's defenders say his intent was "to tell the truth about a serial liar who had been sent to Niger on a put-up job by his wife, a case of partisanship and nepotism working hand in hand."

No one alleges seriously that his actual intent was to harm the national security of the United States, except when his attackers actually are forced to allege this, in order to make the allegations against him conform to what the law requires a defendant to have done in order to be chargeable at all.

Again, given that it is simply implausible that Libby acted with the requisite specific intent to be guilty of the allegedly underlying crime, and Fitzgerald knew this from day one, any subsequent lies (if they were lies) were immaterial to any legitimate investigation.

So, we'll have to see.

My analysis looks good to me but it's probably off-base, because Libby's lawyer isn't making these sorts of arguments. But who knows. Perhaps he will.

Meanwhile... Let's not forget that this entire farce began due to the CIA's constant illegal leaking and constant illegal efforts to undermine the civilian elected goverment of this nation.

Remember who they sent to Niger-- Plame's husband, a committed partisan, a bit of a peacenik freak, and by no means an experienced intelligence officer or unbiased, impartial judge. They didn't even sign him to a standard confidentiality agreement, because they knew full well what he would claim to have found (that was the whole point of sending Plame's husband; they knew, through her, what he would say) and they wanted him to make the anti-war case to the world.

Be sure to check out this speech by the CIA's man in Niger, in which he's not at all ashamed to let his biases all hang out:

In this speech, Ambassador Joseph Wilson:

* describes himself as the investigator sent to Niger by the government
* details the African trip as only he is capable of
* says the government sent him there and not the CIA (a lie)
* says there was nothing to the uranium story (a lie)
* describes the US as "occupiers" of Iraq (a shocking statement at the time)
* describes a conspiracy to help Israel dominate the Palestinians
* calls the Administration warmongers and a--holes
* says Bush is in office for sex

Yes... if I were looking for an impartial investigator for this claim, I'd certainly send a liberal analyst's liberal husband, someone who believes Bush is in office for all the crazy White House pooter.

Fuck them. I'm backing away from my previous position that if Libby lied, he has to serve a couple of years in jail. What the CIA did here was monstrous and anti-American.

Joe Wilson's A Dirty Pirate Hooker: And a congenital liar.

Note that Wilson continues insisting his wife had "nothing" to do with sending him to Niger. Well, either he's lying or the indictment against Libby is.

In order to claim that Libby had perjured himself and obstructed justice, the grand jury goes to great lengths to show how and when he had actually learned about the origin of Wilson's trip. To do so, they refer on page 4 of the indictment to a conversation between Libby and a "senior officer of the CIA" on June 11, 2003:


[Libby] was advised by the CIA officer that Wilson's wife worked at the CIA and was believed to be responsible for sending Wilson on the trip.


And again on page 12 of the indictment:


[Libby] was informed by a senior CIA officer that Wilson's wife was employed by the CIA and that the idea of sending him to Niger originated with her.


This puts Wilson's fan club in a bind: either Wilson is lying, or the indictment is. Which is it? If it's the latter, then perhaps Scooter Libby didn't know what the indictment said he knew, and the indictment ought to be thrown out or at least amended.

As a technical matter, I suppose it could be true both that Libby was told Plame suggested Wilson but Plame didn't suggest Wilson; the high-level CIA officer alluded to (probably George Tenet himself) may have just been wrong. Then both the indictment and Wilson would be telling the truth.

But there is that memo noting that Plame suggested Wilson. And Wilson is not exactly a paragon of honesty and moral righteousness, such as Tiki Barber (206 rushing yards versus the Redskins).

If Only Libby Were Straight With Me... Fitzgerald doesn't seem to make a strong materiality case; he more or less assumes the materiality of the "lies." He should be required to make that showing at trial.

His claim is that Libby's alleged lies about when he found out that Plame was Wilson's wife would be helpful in determining why he leaked the information. Remember, it's the why that needs to be proven.

But let's assume that Libby just said, "Yeah, I heard about it from Cheney and Tenet and some other CIA guys, then I leaked it to the press." How exactly would that shed light on his intent? It would resolve the question of how he had come to know of the information; and also when.

But "how" and "when" aren't an element of the crime. "Why" is the element. How can a lie about "how" and "when" prove something to do with "why," unless one assumes, quite preposterously, that honest testimony by Libby would have divulged that he drank sweet mint tea with Cheney and Tenet and all three said, "Yeah, let's subvert the national security of this country. Old school."

That's not plausible at all.


digg this
posted by Ace at 01:20 PM

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