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September 02, 2006

Question: Why Didn't Fitzgerald Name Armitage As The Leaker?

Most of the outrage here seems directed at Armitage himself, allowing other people to twist in the wind, and go to jail (like Judith Miller), and be indicted on perjury charges (like Scooter Libby), while remaining silent about his crucial role in "outing" the supposedly covert Valerie Plame.

I was wondering about this, and decided Armitage had kept quiet because he was still a subject of possible indictment himself for a while, and didn't want to antagonize Fitzgerald by revealing what Fitzgerald was keeping quiet.

Which made me wonder: Why had Fitzgerald kept quiet about this so long?

Fitzgerald is emphatically not bound by the rules of confidentiality that Woodward and Novak were. They're reporters. He's a prosecutor whose mission it was to find the leaker and determine if any laws were broken.

He knew who the leaker was the day he took over the investigation. Why on earth did he not reveal it to the world on day one?

Did ethical guidelines prevent him from doing so? Perhaps they did. And yet we we had a whole lot of leaks from his office about Scooter Libby and Karl Rove. I knew Scooter Libby was involved early on from Chris Matthews on Hardball.

So it appears that Fitzgerald and/or his team of lawyers were quite willing to leak to the press what they found out about the targets of their hunt (i.e., those working in the White House) but not about another target (i.e., someone not in the White House, and the original culprit, who wasn't a "partisan gunslinger," and hence not useful to Fitzgerald).

Armitage received a letter from Fitzgerald some time ago that he would not be charged with any crime. (Despite the fact that he is as chargable with perjury as Scooter Libby for failing to disclose his leak to Bob Woodward-- obviously the prosecutors asked him about this, and yet he "forgot." If "forgetting" works for Armitage, why not Libby?).

Why no announcement from Fitzgerald at that point?

And why on earth has this exculpatory information been withheld from Scooter Libby? Granted, we're not at the trial phase yet; but it seems a defendant has a right to know such things.

The obvious answer, though perhaps not the correct one, is that Fitzgerald has been so remarkably protectivive of Armitage because revealing Armitage's critical role would hurt his case against the guy he actually wants to prosecute, for anything he can possibly prosecute him for. Prosecuting someone who is "no partisan gunslinger," even one with a suspect failure of memory, isn't gong to win Fitzgerald a governorship or Senate seat in the future. No, to make a big name for himself in the Democratic Party, he needs to get someone loathed by the Democrats. Someone like Scooter Libby.

It seems strange to me that Fitzgerald knew the name of the leaker from the day he began his investigation, knew from a one or two day bit of research at the law library that no possible crime and been committed, and nevertheless chose to undertake an multiyear investigation which included throwing a reporter in jail for 85 days when he had all the answers he needed from the very beginning.

Why did Fitzgerald, early on, float his absurd "conspiracy to commit acts which are not at all criminal" theory? Because that was the only possible way he could justify continuing an investigation when he already knew the culprit and already knew the culprit, or any other culprit, had broken no laws. He needed to postulate an absurd theory of criminality -- a conspiracy to commit acts which were in fact legal, which, you know, makes it not a conspiracy at all -- to provide a pretext for gunning for Rove and Libby.

Was he absent the day they taught law at law school? One can't have a "conspiracy" to get together and rent a movie on Pay Per View. If the acts one agrees to undertake aren't illegal, no conspiracy charge is possible.

But that absurdity, and the press' willingness to go along with it, is what got us to where we are now.

Related... Lyrics here, audio here. "Secret Agent Plame." Pretty funny.

Thanks for the last to Larwyn.

Update: That Odd Theory of the Case: I've been searching for this cite for a while, and only found it now. I keep referencing it, but without a cite, I've been going on memory. Here is the then-new theory of the case as imagined by Fitzgerald:

But a new theory about Fitzgerald's aim has emerged in recent weeks from two lawyers who have had extensive conversations with the prosecutor while representing witnesses in the case. They surmise that Fitzgerald is considering whether he can bring charges of a criminal conspiracy perpetrated by a group of senior Bush administration officials. Under this legal tactic, Fitzgerald would attempt to establish that at least two or more officials agreed to take affirmative steps to discredit and retaliate against Wilson and leak sensitive government information about his wife. To prove a criminal conspiracy, the actions need not have been criminal, but conspirators must have had a criminal purpose.

Unless there have been changes in the law I'm not aware of, there is no crime of "Discrediting and Retaliating Against A Political Opponent In the First Degree." Sorry, but that's just daffy, at least based upon my admittedly hazy recollection of the law.

At some point in a conspiracy charge you have to prove the agreement to commit a criminal act of some sort. A "criminal purpose" is impossible without an actual criminal act. Conspiracy statutes usually require proof of an "overt act in furtherance of the conspiracy," and that act itself need not be criminal (i.e., it's not criminal to buy rubber gloves, but that would satisfy the "overt act" requirement in a conspiracy to commit burglary charge), but at the end of the day a conspiracy charge requires some illegal action to be agreed upon.

As Fitzgerald knew, or should have known, from very early on that no laws had been broken, nor could have been broken, how the hell can he claim he's investigating a conspiracy to commit legal acts?

This is absurd as charging me with conspiring with other bloggers to criticize Patrick Fitzgerald. Our aim is not criminal, so we cannot have a "criminal conpsiracy" to achieve our aims.

My take is that this was a cobbled-together transparently-bogus rationale to continue the investigation when it was quite clear that not only was the culprit known, but it was known full well he wasn't even a criminal culprit.

But Fitzgerald couldn't just announce a week in that no crime had been committed. He needed a crime somewhere, and if it took several years of putting people in jail or under oath before a grand jury, he'd find a crime eventually where none had existed previously.

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posted by Ace at 07:23 PM

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