Fitz Alleges New Motive for Libby to Lie

It must be true that trial lawyers never sleep when they are in trial. Check out the motion (pdf) Team Fitz filed yesterday alleging a new motive for Scooter Libby to lie to investigators and the grand jury. Shorter verson: Libby knew that he had signed non-disclosure agreements in connection with his employment and was afraid that by telling the truth that he disclosed Valerie Wilson's employment with the CIA to reporters, he was in violation of his agreement and would be fired and lose his security clearances.

Fitz alleges:

The government intends to prove that, at the time he made the charged false statements, defendant was aware that, if Ms. Wilson’s employment status was in fact classified, or that Ms. Wilson was in fact a covert CIA officer, in addition to potential criminal prosecution under a number of statutes, defendant faced the possible loss of his security clearances, removal from office, and termination from employment as a result of his disclosures to New York Times reporter Judith Miller and Time magazine reporter Matthew Cooper.

As part of its proof on this issue, the government seeks to introduce in evidence at trial five non-disclosure agreements executed by defendant during the course of his employment as the Vice President’s Chief of Staff and National Security Advisor, and as the President’s National Security Advisor. See GX5A-GX5F, copies of which have been provided to the Court and defense counsel.

These agreements are signed instruments having independent legal significance, and thus are nonhearsay, and also are admissible as admissions of a party-opponent. Because these agreements are probative of defendant’s state of mind at the time of the charged offenses, they should be admitted.

This is a defensive motion on Fitz' part. He's reacting to Wells' claim in opening statements that Libby had no motive to lie. Previously, Fitz had alleged Libby's motive was not to lose his job. But Wells claimed Libby was not concerned with losing his job. Fitz thinks these agreements constitute new proof.

Fitz argues:

The nondisclosure agreements executed by defendant tend to establish that defendant undoubtedly fully understood the serious obligations imposed by the nondisclosure agreements – and the severe potential consequences of violating them. Given other evidence that will establish that defendant was also aware at the time he made the charged false statements that Ms. Wilson’s employment may have been classified, and that the FBI and grand jury were investigating possible crimes arising from the disclosure of Ms. Wilson’s CIA employment to reporters, the nondisclosure agreements are directly relevant to the issue of whether defendant lied intentionally about his role in receiving and disseminating information concerning Ms. Wilson’s employment. Thus, the agreements should be admitted.

Fitz says Libby's state of mind is the most important issue in the case, especially given that Libby "disclosed to reporter Judith Miller" and "confirmed to reporter Matthew Cooper" that Valerie Wilson worked for the CIA.

Fitz still isn't alleging that Libby disclosed classified information about Plame.

Consistent with the position the government has taken prior to, and during trial, the government has no objection to a limiting instruction stating that the nondisclosure agreements are to be considered only with respect to defendant’s state of mind, and not as an allegation that the defendant in fact disclosed classified information in violation of the agreements.

I'm not sold on this motion. There's no linkage to Libby's focus on the agreements at the time he was interviewed by the FBI or testified to the grand jury. I could see it if Fitz had evidence of a conversation Libby had with someone about his fear that his comments to reporters violated the non-disclosure agreements. But, those agreements are standard for people in sensitive government positions. Had he re-read them or been reminded of them before his interviews with FBI agents or grand jury testimony?

Without evidence that Libby was concerned about the non-disclosure agreements at the time of his statements, I don't think the mere existence of them establishes motive.

I'm sure Team Libby will file a response in opposition. From the defense perspective, what other arguments do you see in opposition?

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    TL, I disagree with your analysis and (5.00 / 2) (#9)
    by scribe on Fri Jan 26, 2007 at 10:05:51 AM EST
    I think this is a strong motion for the prosecution.  Moreover, my impression on reading it was (A) Fitz had this in his hip pocket all along and (B) had to wait until Cathie Martin testified yesterday to file it.

    Part of Martin's testimony was to the effect of being concerned about the possible revelation of the possible classified information, with regard to the VP/Scooter's talking points in the push-back and defense of Scooter.  Remember, Scooter was po'd that Ari was giving a more robust defense to Rover in denying involvement in the leak than to Scooter, and Scooter and the VP were pushing hard - regardless of danger of revealing classified info - to get Scooter's defense out there.  I also recall Martin being concerned about exactly what the VP and Scooter were up to in talking directly to reporters, as opposed to having her, the person they hired for the job, do this.  I recall her being particularly uncertain about the propriety of their course of action.

    In being concerned and making her concerns known, Cathie Martin was acting properly.  It was Deadeye and Scooter, in a mad rush, who didn't care what the rules were or went ahead in spite of them (like so many other things they've done).  Here's an excerpt from the booklet that comes along with the SF312 non-disclosure agreement:

    The SF 312 is a contractual agreement between the U.S. Government and you, a cleared employee, in which you agree never to disclose classified information to an unauthorized person. Its primary purpose is to inform you of (1) the trust that is placed in you by providing you access to classified information; (2) your responsibilities to protect that information from unauthorized disclosure; and (3) the consequences that may result from your failure to meet those responsibilities. Additionally, by establishing the nature of this trust, your responsibilities, and the potential consequences of noncompliance in the context of a contractual agreement, if you violate that trust, the United States will be better able to prevent an unauthorized disclosure or to discipline you for such a disclosure by initiating a civil or administrative action.

    Moreover, I think the argument to the effect that "if Scooter didn't have the non-disclosure agreements present in his mind at the instant of lying, they're irrelevant" doesn't cut it.  The long and short of having a security clearance and access to classified information is that the downside of unauthroized disclosure is always in the mind of the person so cleared and authorized.  Indeed, I'd hazard to go so far as to say that most people so cleared and authorized access are more concerned about not violating security than about failing to accomplish whatever the mission is involving the classified information.  When found out by honest superiors the retribution for unauthorized disclosure (an objective failing) is certain, sharp and swift (because it's objective punishment for an objective failing), while missions fail all the time (for all sorts of subjective reasons) without retribution (because of the very subjectivity and indefiniteness of "why it failed").

    A further "reason to lie" is, for a person in Scooter's position, losing one's clearance is career-ending.  Period.  He made his entire career, in and out of government, in the national security field.  Part and parcel of that is having a clearance.  Without it (and assuming he'd keep his law license), he might as well go off and learn how to close house sales, negotiate divorces, draft simple wills and go to night court, because there's no way he'd be doing much, if any, work in the national security field.  Ask J. Robert Oppenheimer.  As to Scooter, this would be not because his clients' work would necessarily require him to be cleared, but likely because he'd become something of a pariah.  His potential clients would (unconsciously or involuntarily) avoid him because they couldn't be sure that in talking business with him, they wouldn't be violating their own non-disclosure agreements, too.

    And, as to the enforcability of the non-disclosure agreement, here's another quote from the Q&A portion of the booklet (question 3):

    Nondisclosure agreements have consistently been upheld by the Federal courts, including the Supreme Court, as legally binding and constitutional. At every stage of the development and implementation of the SF 312 and its predecessors, the SF 189 and the SF 189-A, experts in the Department of Justice have reviewed their constitutionality and enforceability under existing law. The most recent litigation over the SF 189 resulted in a decision that upheld its basic constitutionality and legality.

    So, I think Fitz has very strong argument here.

    well played. (4.50 / 2) (#1)
    by Deconstructionist on Fri Jan 26, 2007 at 07:27:44 AM EST
      Either his motive was to cover up (a) a politically embarassing problem for his bosses; (b) potential crimes by his bosse; or (c)his own neck.

      It's well played because efforts to to discount (a) and (b) might tend to buttress (c) and vice versa.


    establish in cross? (4.00 / 1) (#7)
    by p lukasiak on Fri Jan 26, 2007 at 10:00:10 AM EST
    Without evidence that Libby was concerned about the non-disclosure agreements at the time of his statements, I don't think the mere existence of them establishes motive.

    Since the whole "declassification/leaking of the NIE" is likely to be brought up (especially in reference to Libby asking Addington about it), it would appear to this non-lawyer that the non-disclosure agreements would become relevant during cross-examination of Libby.  

    For instance, Libby could be asked questions like "are you aware of any personal consequences that could follow you disclosure of information that you had reason to beleive was classified."  At that point, I can't imagine why the non-disclosure agreements wouldn't be admissible.

    The defense tried to make a fuss about the immunity deal for Fleischer. I suspect Fitzgerald wants to preempt that attack by turning it back on Libby. If Fleischer was worried enough to ask for immunity, Libby was worried enough to lie.

    Thats a laugh (none / 0) (#2)
    by Abdul Abulbul Amir on Fri Jan 26, 2007 at 07:52:05 AM EST

    Lose a clearance for defending the administration.!?  ROFLMAO.  

    but that's why it's clever (none / 0) (#3)
    by Deconstructionist on Fri Jan 26, 2007 at 08:18:20 AM EST
    (a) and (b) give people distrustful of the Administration a hook to grasp and (c) give people looking for a rationale that does not require broadly condemning the administration a hook to grap that still provides an individual motive for Libby.

    I dont pay much attention to the Libby posts (none / 0) (#4)
    by peacrevol on Fri Jan 26, 2007 at 09:29:26 AM EST
    but the picture always makes me stop and think. Who is the dude that looks like the unfunny tool commonly known as colin quinn? And why is he always in that picture?

    Too much slack allowed (none / 0) (#5)
    by Rayne on Fri Jan 26, 2007 at 09:34:05 AM EST
    Of course he had a concern about his job -- perhaps not because of loss of livelihood or potential loss of cred -- but because he could lose his position of access and power as a neo-conservative.  He would be unable to influence policy or action if he lost his security access.

    We are cutting Scooter too much slack because he knows to the bone the enormity of the risks involved; he's a lawyer, not a freshly graduated high school student, understands fully what his contractual obligations are in signing SF-312.  He's been Principal Deputy Under Secretary (Strategy and Resources) and Deputy Under Secretary of Defense for Policy under GHWBush.  He's also served on the American Bar Association Standing Committee on Law and National Security.

    National security and appropriate handling of classified material should be second-nature to Scooter; if he violated his SF-312, he did so deliberately and for reasons including the loss of his current job.  Don't let anybody play the "poor little Scooter" card; he knew exactly what he was doing and could probably have coached any CIA briefer on their own obligations because of his background and experience.

    Respectively disagree (none / 0) (#6)
    by fireback on Fri Jan 26, 2007 at 09:59:34 AM EST
    Great post Talkleft.  

    Thanks for the Fitz file.

    I don't think I agree with you that the nondisclosures don't establish motive.  However, I should distiguish between what the judge will allow and the jury will believe.  To me, clearly the jury would buy the significants of the nondisclosures, but the judge may have a higher standard.  

    When you consider that the whole basis of the FBI interviews and the grand jury testimony was about the disclosure of classified info., how could he not be concerned?  He knew the importance of protecting classified info.  The nondisclosures simply support what is an obvious part of his job (dealing with and protecting classied info.).  

    To argue that he wasn't concerned with the nondislosures seems to be the same as saying he wasn't concerned with protecting classified info.  The only out I can see is if he didn't think the info. was classified, but Fitz seems to be prepared to establish he did.    

    It's a pre-emptive measure pure and simple (none / 0) (#8)
    by DBaker on Fri Jan 26, 2007 at 10:00:21 AM EST
    As you stated, this is a defensive measure, in order to preempt any defense that Wells might use.

    Given the fact, according to what I have read about this case, Team Libby really screwed up yesterday by playing around with the [allegedly illegible copies of the] Cathie Martin notes, I think Team Fitz is going for the jugular here and cutting them off at the pass.  Even if Fitz loses this motion, it prevents Team Libby from using the "Libby wasn't worried about his job" defense in the future leaving them with less and less options to prove beyond any reasonable doubt that Libby did not lie to the FBI or impede the overall investigation.

    Immunity Implications (none / 0) (#11)
    by Paul J on Fri Jan 26, 2007 at 11:39:53 AM EST
    And speaking of Fleischer, I'm interested in the implications of the 312 for him.  It seems improbable that the "immunity" he is reputed to have been granted (I've seen no details, at least recently) could possibly include shielding him from the same consequences discussed here wrt Libby.

    Anyone have more on this?

    2 + 2 = 5 (none / 0) (#12)
    by squeaky on Fri Jan 26, 2007 at 11:54:56 AM EST
    Doesn't this get confusing for the jury? The 300 lb gorrilla sitting in the room that the jury was told to ignore because this case is about perjury not outing a covert cia agent is: was Plame covert?

    It seems like the jury will have to do a lot of compartmentalizing to get their heads around this motive when they are not allowed to consider Plames status.

    I agree with scribe though, that Fitz had this in his back pocket all along but had to wait for Martin's testimony in order to  confirm that Libby knew about Plame before talking to Russert. Also timely because Martin, by her own example gave the jury a foil to look at. Her reaction when accused of leaking to Mitchell (while Libby was looking at his shoes), and her great discomfort at the thought that Libby was leaking the NIE, a classified document, gives the jury a substitute image for what Libby should be feeling and saying were he not lying and obstructing.

    It seems that there has to be another piece coming up that will allow the jury to square disregarding Plame and this new motive for perjury.

    State of Mind versus Crime (5.00 / 1) (#16)
    by Batocchio on Fri Jan 26, 2007 at 03:56:19 PM EST
    Doesn't this get confusing for the jury? The 300 lb gorrilla sitting in the room that the jury was told to ignore because this case is about perjury not outing a covert cia agent is: was Plame covert?

    I share some of this concern, and certainly many Plame watchers would love a definitive answer to the covert status issue.  However, I don't think it's too difficult a concept for the jurors to accept that regardless of whether or not Libby committed a crime, he had good reason to worry that he had committed a crime, and that he acted accordingly.  That's a pretty strong, credible motive for lying to the investigators.  If Fitzgerald has testimony that establishes Libby's anxiety on this issue, all the better.  But all of Deconstructionist's suggested motives above certainly seem credible, and effective as a legal strategy.  


    re confusion (4.00 / 1) (#14)
    by scribe on Fri Jan 26, 2007 at 12:09:54 PM EST
    Doesn't this get confusing for the jury? The 300 lb gorrilla sitting in the room that the jury was told to ignore because this case is about perjury not outing a covert cia agent is: was Plame covert?

    I think these jurors, after two, four or six weeks of testimony will all have long since figured out that, while they won't be told Plame was covert, she was.  Or, at least the government was concerned enough about it (which doesn't happen every day) to go into an extensive investigation whose fruits are being laid before them.

    These are all D.C. folks, and D.C. is nothing if not a company town, "company" meaning United States Government.  They are doubtlessly well aware that (a) there's a lot of lying, dissembling and b'sing going on every day, in every office of that company city, (b) very little of it ever gets looked at, let alone prosecuted, and (c) when it does, high-priced and high-powered legal talent means Big Deal.

    So, to recapitulate:  they'll know by the end, if they don't already, that this was a Big Deal.


    scribe (none / 0) (#25)
    by jimakaPPJ on Sat Jan 27, 2007 at 11:43:14 AM EST
    If she was covert, why hasn'r Fitzgerald charged someone with outing her? Say, like Armitage?

    Isn't that what the investigation was supposed to be about?


    Are you intentionally obtuse? (none / 0) (#48)
    by Molly Bloom on Sat Jan 27, 2007 at 09:30:07 PM EST
    Go look up the Fitzgerald press conference on the day the indictment was announced.

    Jury nullification? (none / 0) (#15)
    by sphealey on Fri Jan 26, 2007 at 12:42:30 PM EST
    > Fitz is first clearing the view,
    > then he will prosecute the big crimes
    > of Obstruction by higher-ups,

    Didn't all the selected jurors promise that they could listen to both sides with an open mind and follow the judges instructions?  I personally thought the Martha Stewart verdict was a travesty, but if I get called for a jury in that district don't I, as I good citizen, have to follow the judge's instructions to convict for obstruction even if I see no underlying crime?

    In order to find not guilty, your line of thought would require either that the jurors lied during the selection process, that Wells can convince them to execute a jury nullification, or both.  Right?



    aware of non-disclosure terms? (none / 0) (#13)
    by watou on Fri Jan 26, 2007 at 11:59:51 AM EST
    Not being a lawyer, I don't know what conditions are placed on what should be entered into evidence.  But if the NDAs are restricted only to show that Libby was at one time aware of the costs of disclosing classified information, what's the problem?  I think it would be fruitless for the defense to argue that Libby, being such a busy and important man (or whatever), was not mindful of his responsibilities not to disclose classified information.  What juror could possibly believe that a top-level govt. employee "just forgot" about the requirement to protect classified information?

    Hit Me with a Feather (none / 0) (#17)
    by spoonful on Fri Jan 26, 2007 at 04:51:27 PM EST
    The suggestion that apprehension of violating a nondisclosure agreement was the motivation for Libby to intentionally mislead investigators as to Cheney's involvement in the leak is unsatisfactory.  It is too weak a motivating factor.  The intentional comission of perjury would seemingly carry a much more severe punishment than a mere breach of contract.  With the risk to Libby that he would face perjury charges looming large, something much more urgent - much more sinister had to be at stake.  I suggest it was the 2004 election itself.  When Libby says he was preoccupied with the 2004 election - that is the whole point.  The leak was all about the election.  It's all that mattered.  If Bush doesn't get re-elected, Jr. not only carries on his father's shame as a 1 term president, but all of the fun and dandy for all of them abruptly comes to an end in January, 2005.  By Libby obstructing the investigator's' discovery of Cheney's responsibility, he delayed the public dissemination of this information until after the election.  Since the whole Joe Wilson affair attacaked the very credibility on which Bush ran for re-election, disclosure of Cheney's dirty deeds would have significantly jeopardized their 2004 prospects.  By obstructing the investigation, Libby instead significantly boosted Bush's prospects.  Indeed, his tactic worked like a charm.  Now, unfortunately for Libby, he must pay the consequences.    

    Cathie Martin / Bill Harlow (none / 0) (#18)
    by ding7777 on Fri Jan 26, 2007 at 05:48:47 PM EST
    Didn't Harlow violate the SF-312 when he told Cathie Martin about Plame?  

    The jury was selected ... (none / 0) (#19)
    by Sailor on Fri Jan 26, 2007 at 05:52:28 PM EST
    ... for folks who believe the admin's lies.

    If they thought bush lied, cheney lied, rumsfeld lied they were struck.

    How can this jury ever find anyone guilty when they were chosen on the grounds that they are believers in bushco!?

    Hmnmm (none / 0) (#20)
    by squeaky on Fri Jan 26, 2007 at 05:59:23 PM EST
    That was not my take. I thought that they seemed open minded. Why do you think that they will give Libby a pass?

    the gorilla (none / 0) (#21)
    by diogenes on Fri Jan 26, 2007 at 08:59:41 PM EST
    If Libby was guilty of leaking covert info then the indictment should be that.  If not, then this is just another case with no more or less merit (actually less, since his perjury is largely undisputed) than the perjury charge against Bill Clinton, and he was never charged in a criminal case or jailed.

    Actually perjury by President Clinton was and is (5.00 / 2) (#22)
    by Molly Bloom on Fri Jan 26, 2007 at 09:34:07 PM EST
    disputed. In brief (and I expect JM can give you a better explanation):

    Perjury is a false statement under oath about a material matter.

    The key word here is material. Paula Jones accused President Clinton (in a civil suit) of sexually harassing her- i.e. making unwanted advances.  An affair by consenting adults- and Lewinsky by her own admission was the agressor in this affair- is not material to an accusation of harrasment.  It does not tend to prove or disprove the allegation of harrassment.

    Furthermore, in the trial (by the Senate) President Clinton was found not guilty of perjury. Minor detail that.

    Conversely Libby is accused of lying about leaking Valerie Plame's identity after being asked directly whether or not he had- see paragraphs 26-28 of the indictment. In an investigation about who leaked the name of a classified CIA agent, that is MATERIAL.

    Before you go and say "oh yeah, President Clinton was disbarred for perjury" - no he was not disbarred for perjury (making a false statment under oath regarding a material fact). Go look it up.

    Finally as an aside, which is worse: lying about an affair or lying about WMD, and retaliation against a whistle blower who helped expose the WMD lies?  Which has greater national security consequences?


    Capone (none / 0) (#23)
    by squeaky on Fri Jan 26, 2007 at 10:24:42 PM EST
    First of all, just to be clear, the gorilla in my mind is not whether Plame was covert, that is
    known to all except for the most assidous bushlickers.

    The gorilla I see is how not to predujice the case by telling the jurors that Libby is a traitor as well. It is all about attaining justice.

    Would you have also argued that with Capone for tax evasion?


    squeaky (none / 0) (#26)
    by jimakaPPJ on Sat Jan 27, 2007 at 11:46:58 AM EST
    Since Fitzgerald knows, and has known tha Armitage was the leaker, and since he has not charged him with the crime of outing a covert agent, then I must assume that you consider him an:

    assidous bushlickers.

    No ppj (none / 0) (#27)
    by squeaky on Sat Jan 27, 2007 at 12:28:17 PM EST
    I do not have enough information as to why Fitzgerald has not charged anyone with leaking the name of a covert cia agent. While I believe that Fitzgerald is apolitical and respectful of the President on down the line, I would never call him an assiduous bushlicker.

    Perhaps Judge Walton's (a GWB appointee) characterization of Fitzgerald should be considered. Most likely Walton knows about the arrangement with Armitage which may include immunity.

    Here is what Judge Walton said:

    And the entire episode led to Judge Walton saying this on the record in open court about Patrick Fitzgerald:  you are "one of the most scrupulous prosecutors I have ever had appear before me,"

    The rats are jumping ship as I type but you and jarober are hanging on by your fingernails regurgitating empty WH talking points over and over again. That sort of blind partisan loyalty is what I would call assiduous bushlicking.


    Neither of you get it (none / 0) (#28)
    by Deconstructionist on Sat Jan 27, 2007 at 12:47:33 PM EST
      Obviously, Fitzgerald knew shortly after assuming duties that Armitage had admitted disclosing Plame's position.

       Likely , he believed and still believes that Armitage's disclosure was not made with the requisite intent to be a violation of the statute. Likely, slso, he, unlike almost everyone here understood that Plame's status goes directly to TWO essential elements under that statute:

     (1) Whether she was "covert" within meaning of the statute; AND

      (2) Whether there was sufficient evidence that Armitage, Libby. Cheney, Rove or anyone else who may have disclosed her position knew that at the time their disclosure and intentionally disclosed her identity with an appreciation of what they were doing.

       This all means Fitzgerald had to be both convinced that the statute was violated and that he could construct a case centered on the dsclosure that would be appealing to a jury before he would decide to seek an indictment.

      Squeaky is wrong that it has been established to any reasonable person's satisfaction that Plame was "covert" under the statute and jimaka is wrong to assert that the fact that has not been publicly established means he was wrong to continue the investigation during which it is alleged Libby lied.



    Plame was covert (5.00 / 1) (#34)
    by Sailor on Sat Jan 27, 2007 at 03:17:48 PM EST
    According to current and former intelligence officials, Plame Wilson, who worked on the clandestine side of the CIA in the Directorate of Operations as a non-official cover (NOC) officer, was part of an operation tracking distribution and acquisition of weapons of mass destruction technology to and from Iran.

    special prosecutor Patrick Fitzgerald found that Plame had indeed done "covert work overseas" on counterproliferation matters in the past five years, and the CIA "was making specific efforts to conceal" her identity, according to newly released portions of a judge's opinion.

    links (none / 0) (#36)
    by Deconstructionist on Sat Jan 27, 2007 at 03:35:29 PM EST
     to media stories should not be taken at face value. It's amazing how some people scream that when it's a story they don't like but then turn around and cite to such sources when it suits their purpose.

       As I said, I don't know and neither do you. I'm no more enlightened by reading a story.


    the ability of folks ... (5.00 / 1) (#39)
    by Sailor on Sat Jan 27, 2007 at 04:00:34 PM EST
    ... to deny obvious truths is absolutely amazing.
    As to the leaks' harmfulness, although the record omits
    specifics about Plame's work, it appears to confirm, as alleged
    in the public record and reported in the press, that she worked
    for the CIA in some unusual capacity relating to

    Addressing deficiencies of proof
    regarding the Intelligence Identities Protection Act, the special
    counsel refers to Plame as "a person whose identity the CIA was
    making specific efforts to conceal and who had carried out
    covert work overseas within the last 5 years"--representations
    I trust the special counsel would not make without support.
    (8/27/04 Aff. at 28 n.15.) In addition, Libby said that Plame
    worked in the CIA's counterproliferation division (I-53-55, 245-
    46), * * * * * [REDACTED]
    * * * *

    Sailor (none / 0) (#42)
    by jimakaPPJ on Sat Jan 27, 2007 at 05:44:46 PM EST
    The problem with this story is that, when you read it, the word "claims" is used.

    Someone could claim that I am rich, but after being investigatedd by my bank I would not be so.


    Funny (none / 0) (#29)
    by squeaky on Sat Jan 27, 2007 at 01:04:47 PM EST
    You must be a lawyer or a law student. Normal thinking people know by now that Plame was covert.  

    forget normal thinking people... (none / 0) (#30)
    by Deconstructionist on Sat Jan 27, 2007 at 01:10:04 PM EST
     ...tell us how YOU know it.

    Nice (none / 0) (#31)
    by squeaky on Sat Jan 27, 2007 at 01:38:45 PM EST
    Thanks for the compliment.

    explain how you know ** (none / 0) (#32)
    by Deconstructionist on Sat Jan 27, 2007 at 01:48:55 PM EST
     50 U.S.C. § 426.

          For the purposes of this subchapter:

            (1) The term "classified information" means information or material designated and clearly marked or clearly represented,     pursuant to the provisions of a statute or Executive order (or a regulation or order issued pursuant to a statute or Executive order), as requiring a specific degree of protection against unauthorized disclosure for reasons of national security.....

            (4) The term "covert agent" means -
              (A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency -

                (i) whose identity as such an officer, employee, or member is classified information, and

                (ii) who is serving outside the United States or has within the last five years served outside the United States; or....

      With regard to Plame that essentially means: an employee of an intelligence agency whose identity as an employee is classified information who has within the last five years served outside the US."

       I've never seen any official verification she meets that definition. (Granted that is perhaps BECAUSE it is classified but that doesn't mean it has been established.)

       I include subsection to remind you an others that the disclosure has to be of information the person knew was classified.


    thanks for the info (none / 0) (#33)
    by squeaky on Sat Jan 27, 2007 at 02:56:03 PM EST
    But have you been following the case?

    Do you think that this case would have ever come to fruition if Plame were not covert?

    If you do you must also believe that there is a secret left wing cabal in the government that is acting for purely political reasons, much like the nonsense rained on Clinton.


    yes, i have (5.00 / 1) (#35)
    by Deconstructionist on Sat Jan 27, 2007 at 03:29:47 PM EST
      The case against Libby has come to fruition (trial) becuae Fitzgerald believed Libby lied about a material matter under oath and persuaded a grand jury to agree. Nothing else is necessary

      That MOST CERTAINLY does not require concluding Plame was covert within meaning of the statute. All it requires concluding is that during  an investigation initiated to explore all aspects of the case, including but not limited to whether Plame was covert, Libby made statements that are alleged to have related to a material matter and beuntrue and that he did so knowingly and intentionally.

      For the life of me, how you can still not get it is amazing. It is entirely possible (and thus no defense for Libby) that he lied during an investigation into conduct that was ultimately concluded  not to be a crime under the IIPA.

      Once Fitzgerald suspected Libby and/or others were lying or doing other things to obstruct justice he had authority to investigate THAT. Even if Libby and/or others were lying for purely personal or political reasons and not because they were worried about criminal liability, it is still a crime.

       I would think you would get that if for no other reason than fitzgerald has been openly making that point throughout. He doesn't have to prove Plame was covertunder the statute  and even proof that she wasn't is no defense for Libby.

       I have no clue whatsoever what you mean by I must believe in a secret Left wing cabal in order for me to understand something so simple.

      I DON'T KNOW whether she was "covert" under the statute and neither do you. We heaven't been told and may not be told because that information is IRRELEVANT to the case currently being tried.



    My mistake (none / 0) (#37)
    by squeaky on Sat Jan 27, 2007 at 03:45:10 PM EST
    Sorry I was unclear. Instead of this:

    But have you been following the case?
    I meant to ask you this:

    Have you been following the Plame leak investigation that has, so far, resulted in indictments against Libby?

    Hope that helps to clarify my comment above.


    guess who said this? (none / 0) (#38)
    by Deconstructionist on Sat Jan 27, 2007 at 03:49:53 PM EST
    "Let me say two things. Number one, I am not speaking to whether or not Valerie Wilson was covert. And anything I say is not intended to say anything beyond this: that she was a CIA officer from January 1st, 2002, forward. I will confirm that her association with the CIA was classified at that time through July 2003. And all I'll say is that, look, we have not made any allegation that Mr. Libby knowingly, intentionally outed a covert agent. We have not charged that. And so I'm not making that assertion. "

    Yes I know the quote, but (none / 0) (#40)
    by squeaky on Sat Jan 27, 2007 at 04:08:27 PM EST
    Have you been following the Plame affair before Fitz indicted Libby?

    If you have, and still belive that Plame was not covert, you must think that there is a secrect left wing cabal in our government that had the power to appoint Ashcroft and then Fitzgerald to investigate the outing of a covert cia agent, so that they could.... embarass the president; waste taxpayers money; get even for the waste and disingenuous Ken Starr BS..... or.....fill in the blank.

    Have you forgotten the ruthlessness of the lockstep situation when the Republicans has control of all three branches of out government.

    Do you really think that they would allow an investigation to proceed based on a fact that was easily knowable to anyone with top security clearance, if that fact was even slightly untrue?


    squeaky (none / 0) (#41)
    by jimakaPPJ on Sat Jan 27, 2007 at 05:42:20 PM EST
    Fitzgerald was appointed to do two things.

    To determine who leaked her name.

    To determine if she was covert as claimed by the CIA.

    Note the word "claimed."


    Silly ppj (none / 0) (#44)
    by squeaky on Sat Jan 27, 2007 at 05:59:29 PM EST
    ... if she was covert as claimed by the CIA

    Let's see:

    The fire department "claimed" that Joe showed up to work every day as a fireman.

    The police department "claimed" that Jane had reached the rank of Seargent.

    The President "claimed" that Mary was part of his cabinet.


    So in your mind the fact that the CIA claimed that Plame was covert, and Ashcroft and all the Republicans that had super duper security clearance, like Bolton, Fleitz, Feith, Wurmser, Cheney, Bush, went ahead with an investigation when they knew that Plame was not covert, but just a low level desk clerk, is patently absurd.


    Deconstructionist (none / 0) (#43)
    by jimakaPPJ on Sat Jan 27, 2007 at 05:54:43 PM EST
    I'd be as disadvantaged arguing law as an alligator trying to pick cotton, but...

    It still seems to me that he was appointed to determine who did the leaking.

    As soon as he knew that, I would think he would determine if the leaker had violated the law/if she was covert et al and etc.... ;-)

    So why all the other investigations??

    If Libby had not been questioned, no crime could have been committed. Why did he question Libby, or anyone else, after he knew Armitage was "the man?"


    Go figure (none / 0) (#45)
    by Repack Rider on Sat Jan 27, 2007 at 06:29:25 PM EST
    It still seems to me that he was appointed to determine who did the leaking.

    Ken Starr was appointed to look into a land deal even though no crime had been identified in connection with it, and somehow decided to investigate a blow job that was not of any importance to the republic.

    How do you suppose that was allowed to happen?

    If a supremely unimportant blow job is worthy of a lengthy and expensive investigation, shouldn't obstruction of justice during the investigation of a national security breach be worthy of investigation also, regardless of who did the leaking?

    Really?  Why not?


    RePack (none / 0) (#46)
    by jimakaPPJ on Sat Jan 27, 2007 at 09:05:36 PM EST
    For one thing he went back to congress and got authorization.

    BTW - Be a snark if you want, but I have never defended the BS that Clinton's BJ genterated.


    Fitz got authorization to investigate perjury (none / 0) (#49)
    by Molly Bloom on Sat Jan 27, 2007 at 09:41:29 PM EST
    and obstruction of justice see February 6, 2004 letter clarifying that point:

    Dear Patrick:

    At your request, I am writing to clarify that my December 30, 2003, delegation to you of "all the authority of the Attorney General with respect to the Department's investigation into the
    alleged unauthorized disclosure of a CIA employee's identity" is plenary and includes the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; to conduct appeals arising out of the matter being investigated and/or prosecuted; and to pursue administrative remedies and civil sanctions (such as civil contempt) that are within the Attorney General's authority to impose or pursue. Further, my conferral on you of the title of "Special Counsel" in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 CFR Part 600.

    s James B. Comey
    James B. Comey
    Acting Attorney General


    jimaka (none / 0) (#51)
    by Deconstructionist on Mon Jan 29, 2007 at 07:17:22 AM EST
     Molly beat me to the delegation letter outlining the scope of Fitzgerald's authority. at the time he asked for and received , what I will term "clarification" of his authority, I think it is almost certain two conditions existed.

    1. Fitzgerald suspected crimes relating to disclosure of Plame may have been committed.

    2. Fitzgerald suspected  some people were not being entirely truthful and forthright in their interactions with the investigation.

       As I've said before, the Armitage admission did not foreclose the possibility that other people were also involved and possibly culpable in disclosing Plame and it also  did NOT excuse lying or obstructing the investigation even if the reason for lying or obstructing was smomething other than concealing conduct that was criminal.



    cheney jon stewaert video (none / 0) (#24)
    by MinorRipper on Sat Jan 27, 2007 at 09:03:48 AM EST
    Ahhh...Our VP Mr. Cheney, he's one in a million, isn't he??  What a genuinely nice guy.  Not sure if you've seen seen this Daily Show 'interview' or not, but it's pretty hilarious stuff:

    clinton (none / 0) (#47)
    by diogenes on Sat Jan 27, 2007 at 09:22:42 PM EST
    If Fitz knew who the leaker was and went fishing anyway then he it wasn't in the interests of justice (i.e. preventing leaks) but of politics, as Repack Rider says that Ken Starr went fishing from a land deal to allged perjury about a blowjob (which was never tried in a criminal court).
    What national security interest was served by continuing the investigation if the leaker was already known (and never indicted!)

    Tell that one to the DOJ (none / 0) (#50)
    by Molly Bloom on Sat Jan 27, 2007 at 09:45:36 PM EST
    See the February 6, 2004 letter to Fitz. Specifically this passage:

    ...delegation to you of "all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity" is plenary and includes the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence...

    Just politics?