I'm not a law talking guy, but in my considered legal opinion, these indictments smell. Smell like feet.

This once again illustrates the major problem with these special prosecutors - after spending so much time and money (and how much has this investigation cost, by the way? Seems we got a running tally during the Starr investigation) on one investigation, the prosecutor seemingly feels a need to bring some sort of charges against the subject of the investigation.

Let's be clear on one thing about the CIA here: Plame asked Wilson to look into this "crazy little story" that iraq was trying to buy yellowcake in Niger.

We all know that if your wife tells you to look into a crazy story the conclusion is foregone. The trip became a junket for Wilson as soon as those words left her mouth, and the words "crazy story" are part of the Senate record.

The question is why the CIA wanted him to arrive at that conclusion. My guess was CYA, but CYA would tend to try to justify your reporting on WMD's. That leaves a rogue faction in the CIA who decided partisan politics is more important than the truth.

Also, it's aroung the blogosphere that Wilson outed his wife to the Kerry camp before the Times piece was published.

Kerry's advisers acknowledged yesterday that Wilson, who has also donated $2,000 to Kerry this year, told them about his allegations against the White House involving his wife before going public with them this summer.

I look forward to finally getting to the bottom of this. Again.

Let's see if I have the media spin on this subject right:

Wilson uses his diplomat status to smear the president and his administration, by telling lies, and this is not only acceptable but admirable.

The administration seeks to correct the false impression that Wilson has given, and not only is it unacceptable, but unethical and quite possibly illegal.

Have I got that about right??

Now, Libby is supposed to have been caught in lies about a crime that has now been determined, never tto have taken place? I'm a bit confused my own self...

Libby should have been smart. He should have said: "i'm not gonna put up with this shit" and quit the White House job as soon as Fitzgerald was put on the hunt.

Then, when the FBI came to talk to him. he should have told them to go fuck themselves, which is his right.

He should have had his lawyer tell Fitzgerald that, if subpoened, he'd just take the fifth - again his right. If Fitzgerald had still subpoened him, he should have just gone into the grand jusry and immedialtely invoked the fifth. In point of fact, prosecutors hardly ever subpoena someone after their lawyer tells the prosecutor that the guy is just gonna take the fifth. The lawyer also reminds the prosecutor that grand jury apperances are secret and that, if anything leaks out, the lawyer might file ethics charges (and possibly worse) against the prosecutor.

He'd be out of his job (as he is now) but he would not have any legal problems hanging over him - like something with a possible 30 year penalty.

All this guy seems to be charged with is lying about when he found out that this Plame lady worked for the CIA. That's insane but, as is now evident, he would have been better off just boogeying from the White House job and them clamming up.

I think you are confusing intent with motive.

Personally, I think "Dirty Pirate Hooker" can be an admirable personality trait in the proper context.

Nope, I'm not. There is normal intent, which most crimes require (or some lesser form in some cases, like wilfulness or criminal negligence).

But some laws require specific intent, not just the intent to do the thing you did but to do so with the intent of achieving a particular outcome.

The IIPA definitely requires a specific intent. I'm pretty sure (though I'd have to look it up) the Espionage Act does as well.

For example, a law against terrorism wouldn't just require that you intended to detonate a bomb. Just intending to detonate a bomb (and doing so) is chargeable under arson, attempted murder/murder, etc.

But to get the terrorism rap, you'd have to intend to detonate the bomb with the specific intent of influencing the policy of a government or group (or however its phrased).

Specific intent does in fact shade into motive. But some crimes do require proving precisely that.

I honestly don't get it. How come every time a conservative rises to Libby's defense, their discussion goes from Libby's actions to smearing Wilson?

What's the meta-point of that? It's okay to reveal classified information if you do it embarrass an (alleged) lying jerk? Is that what the statutes say?

In other words, even if Wilson is all the things you say (anti-Bush, a "peacenik"), that simply is no defense to outting a covert agent. We don't have one set of laws for Bush supporters, and a different set of laws for others.

And, by the way, Wilson's behavior is even LESS of a defense to perjury or obstruction of justice. Which is what Libby was actually charged with. And you can check the statutes on that.

My point is that, in a court of law, Wilson's behavior (whether you love it or hate it) is ENTIRELY IRRELEVANT to Libby's alleged perjury and obstruction.

As for what is and isn't "classified", I hope you can appreciate that "we" don't get to decide that. Security classifications don't lose their secure status because of widespread rumor or public speculation, which can be wrong (as well as correct). I'm not saying whether or not Plame was or wasn't a "covert agent", but her status is not something determined by public polls.

Futhermore, you seem to be confusing the intent requirement needed to prove perjury/obstruction of justice (which Libby was charged with), with the intent requirement required to prove violation of the more serious crime (which Libby was NOT charged with). To prove perjury, Fitzgerald does NOT need to show that perjury was committed "with the intent of undermining the intelligence capabilities of the United States."

And finally, your whole thesis is, from a legal prospective, way off-base (as you suspected). To be convicted of a perjury crime, one does not have to be guilty of a some underlying crime. In fact, Clinton was found guilty of perjury, and he wasn't even CHARGED with an underlying crime (it pertained to a civil matter).

In this case, it's along the lines of "with the intent of undermining the intelligence capabilities of the United States."

This was indeed Fitzgerald's problem. Even if one was to believe that Plame was "covert," her outing actualy had very little to do with her. The intent was to provide context to Wilson's comments. There was no mailicious intent directed toward Plame. If anything, she was collateral damage. Let's not forget that all of this came about from media inquiries into why the White House would have sent such a partisan Democrat to investigate the NIger issue in the first place. There was no "we're gonna get Plame to get back at her husband." The traget, if you want to call it that, was always Wilson himself.

To be convicted of a perjury crime, one does not have to be guilty of a some underlying crime. In fact, Clinton was found guilty of perjury, and he wasn't even CHARGED with an underlying crime (it pertained to a civil matter).

Yes, but the lie still has to be material to proving, one way or another, something important in an investigation.

Fitzgerald says the lie was material because it precluded him from learning the WHY. But the actual perjury goes to the HOW and the WHEN. The underlying crime being investigated does not require proof of HOW or WHEN but WHY.

If he can't make the case that the HOW or WHEN is relevant to the WHY, it's immaterial.

Materiality is ALWAYS an element in perjury or false statement charges. Always. Sometimes it's satisfied, sometimes it's not.

In Clinton's case, the lie was material because the plaintiffs were inquiring about a pattern or practice of rewarding those who'd had sex with him (and, by implication, not rewarding those who didn't), which is quite common in sexual discrimination/harassment cases.

And I think you're quite confused by the argument, Ken.

I don't assume that you must be charged with some underlying crime to be charged with perjury. You're right about that, but I never said otherwise.

However-- the lie you tell must be RELEVANT to an inquiry into an underlying crime or a court case or the like.

If the lie you tell is irrelevant -- if it would have no legal ramifications one way or the other -- it's immaterial and not a crime at all.

Correction Ace

Clinton was not convicted of perjury. He wasn't even indicted for it. The prosecutor gave him a walk.

He was cited for making false statements and he had his law license suspended but he never faced any possible jail time.

This is why Fitzgerald told that long story about a pitcher who beans a guy in the head, and you're trying to figure out his state of mind. He's trying to link Libby's alleged lies about how and when he found out to an actual legal element of the underlying crime being investigated, specific intent.

Trouble is, there is no obvious connection.

He can still get nailed on obstruction of justice, I suppose, but unless Fitzgerald can link the lie about the when and the how to the actually-relevant question of the why, it's immaterial. It's like lying about your bowling score at a murder trial.

Yes, materiality is an element to perjury (and the related charges), but the threshold isn't as high as you seem to think.

For example, if Libby told prosecutors that it was raining when he talked to Reporter X, and weather records show him that it was actually sunny that day, a perjury charge isn't likely to survive (or even be brought in the first place). THAT'S an example of a "lie" being immaterial, and therefore "not perjury".

You say that "Fitzgerald says the lie was material because it precluded him from learning the WHY". Fine, but even Fitzgerald's statement doesn't suggest that materiality *must* be *exclusively* about intent (or motive). In fact, materiality is often about immutable FACTS (the when, where, and whos), and not fuzzy things like WHY.

Let me put it this way.

It's undisputable that the investigation (about a possible leak) centered around questions of who talked to whom, what was said, and when these things were said. These are all MATERIAL facts that Fitzgerald was trying to uncover. If the allegation is that Libby lied about any of those questions, the materiality requirement is met. That's why it's not being challenged -- it's a losing argument right out of the box.

Ace's analysis is, in my view, exactly right (I swear I'm not saying that to flatter Ace). If you read Ace's piece and read the indictment, and recall Fitzgerald's press conference, you will see the prosecutor stretching to establish a basis for materiality. I think as a matter of criminal law, this is a weak case. However, I am not making any comment about whether Lewis Libby should be employed by the White House or whether he did the right thing.

Nope.

First of all, state of mind may be "fuzzy," but it is considered a "FACT" ( as you capitalize it) to be established by a prosecutor and determined by a jury. When we say someone had the intent of killing someone, that's a "FACT" to be established. That's what it's considered at law. It's not considered "a bit of gauzy guesswork about what's going on in someone's thinkbox."

Again, this is why Fitzgerald went through that lengthy bean-the-batter analogy. He was straining to claim that Libby's lies preculded him from establishing an element of the crime -- specific intent -- and hence were material.

He wasn't just going through all that bullshit because he liked talking about baseball. He was attempting to answer the materiality issue in advance. The fact that he thought of it and you, apparently, didn't should tell you something.

So that's why he went through the long baseball analogy. Trouble is, the when and how don't get to the thing that actually is material-- the why, also known as the specific intent required by the various statutes.

I am sorry if I missed your argument the first time. It is clever, but I can't help thinking whether I am the one who disclosed the identity of a person is MATERIAL to an investigation regarding the possible criminal disclosure of the identity, even if the investigation fails to discover evidence sufficient to accuse any specific person of the crime.

In plain terms: Libby said, "if its a crime it wasn't me because I wasn't the source." Apparently that was a bald faced lie. The lie was certainly intended to deflect the investigation away from himself as the source.

If you are accused of a bank robbery and you claim you weren't even in the bank that day, and the prosecutor can prove you lied about that, I don't think it matters in the perjury prosecution whether the prosecutor can prove that you really were a robber or that a robbery occured. You lied to try to avoid being accused. To me that IS material.

I didn't consider that. I should read the indictment before responding (hey, there's an idea) but the gravemen of the complaint -- at least according to Fitzgerald's press conference -- was that these lies preculded him from inquiring into state of mind.

Not that they were material to whether or not Libby divulged classified information he had access to through government channels.

And there's still question number one. Fitzgerald says the leak was a leak of "classified" information. Was it really? If it wasn't, there's no possible crime to investigate, and all lies about how and when are still immaterial.

I have been making the argument that Fitzgerald knew very early on that no crime was committed. See I'm A Little Slow In order to avoid flying back to Illinois without making a big name for himself, he had to badger people like Libby into making mistakes. Your post completes the demolition by pointing out that such "crimes" probably aren't crimes at all.

Here's a strange thing I haven't seen mentioned. The president could presumably have decided to declassify the Plame info. Its not like an insider (or former insider or person assisting such a person) did this without executive authority (which I think is the scenario these secrecy laws are about). If so, the whole bogus thing would have never been an issue.

Couple of informational points

1. The Independent counsel statute has expired. This is a special prosecutor appointed by the DOJ that has a very limited mandate. He can investigate only the outing and any crimes arising from it. The Independent counsels had carte blanche to move from one thing to another.
2. The investigation thus far has cost $723,000 ~$750,000 as it's not an independent counsel.

3. Plame's status with the CIA as classified was designed to protect her and the more importantly the CIA front company Brewster Jennings. I am not sure why so many bloggers continual carp on the NOC status of Valerie Plame. Fitzgerald isn't asserting her classified status - He's not pulling it out of his ass, he most certainly has been informed of her status by the CIA.

BSD

The Independent counsels had carte blanche to move from one thing to another.

Wrong.

Under the old law, the Independent Counsel had to appear before a panel of judges (from the appropriate Circuit Court of Appeals, if I remember correctly) to receive approval to move from one line of inquiry to another. If and only if the Court approved could he move on to that subject.

'You lied to try to avoid being accused. To me that IS material.'

Which would be a perjury trap, and Libby's defense will surely argue that. Also that his 5th Amendment right against self-incrimination was denied him by the POTUS ordering him to cooperate with the special prosecutor.

'You lied to try to avoid being accused. To me that IS material.'

It's not material if, even had you told the truth, you STILL could not be charged with a crime.

Materiality means a lie has to have some relevance to a live legal issue. If there cannot be any crime under the facts, lies about those facts -- even if done with bad motives -- aren't material.

I don't think that gets you out of obstruction of justice, though.

ace sez: I honestly don't get it. How come every time a conservative rises to Libby's defense, their discussion goes from Libby's actions to smearing Wilson?

I remember that when Rove was targeted he had only said: "try not to get too far out on a limb with Wilson" to a msm reporter, warning them of Wilson's bs, not smearing our "punishing" Wilson.

geez, trying to steer the msm to the truth. No good deed can go unpunished in that town ...