Hey Judy: Kiss My Aspens

The WaPo must be so proud of Bob Woodward. Little Mr. Run Amok didn't even have to spend 85 days in jail to get his book deal... but then second children always learn so much from their older siblings' mistakes.

All Washington is abuzz with Bob Woodward's revelation that an as-yet unnamed administration source revealed fave secret squirrel Val Plame's covert identity to him well in advance of Scooter Libby's little err... indiscretion. As we've come to expect with L'Affaire Plame, the latest plot twist has both sides contorting themselves into rhetorical pretzels to justify their respective positions. Liberals now deem their former hero a traitor and a dirty rotten liar, and conservatives all of a sudden find that untrustworthy journalistic scum to be an altogether admirable fellow of unimpeachable integrity.

As usual, the truth is getting lost somewhere in all the hype.

First of all, Bob Woodward's little "revelation" doesn't get Libby off the hook, for the simple reason that Mr. Libby is not being charged with the crime of revealing Val Plame's identity. Some people may naively have thought that was what this whole silly affair was about, but if so they were sadly mistaken.

I. Scooter Libby (why do I think of I, Robot every time I see that?) is being charged with making false statements and obstructing a federal investigation, and on that charge Woodward is relevant, but only tangentally. Kate O'Beirne has some interesting observations:

According to the Washington Post story this morning, Walter Pincus and Bob Woodward have different recollections about a possible conversation about Joe Wilson's wife and Woodward has a faulty memory about whether he might have mentioned Wilson's wife to Scooter Libby, and we know that at the NY Times Judith Miller and her editors have different recollections about her desire to pursue the Wilson/Niger story. Why is Scooter Libby the only one with a different recollection than others to be indicted? And, was the Administration official who recently told prosecutor Fitzgerald about a conversation with Woodward not interviewed previously? Who else with knowledge of Plame's employment before it was publicly disclosed wasn't interviewed during a two year long inquiry? Fitzmas is beginning to look like Fitzmissing.

All very good questions. In addition to those, here are a few other things to think about. Judy Miller also has another source whose identity she still has not disclosed. Judy Miller failed to disclose her earlier conversation with Scooter Libby even though she had a record of it in a notebook. Apparently she, too, either made earlier false statements to the special prosecutor or her memory is faulty as well. No charges. In fact, Fitzgerald made a deal with her that allowed her to escape further prosecution at his hands and to protect her other source. Now why is that, I wonder?

Regarding the charges against Mr. Libby, Jeffrey Rosen at the New Republic finds the Libby indictment indefensible:

Fitzgerald's main justification for bringing the perjury and obstruction charges was that Libby's alleged lies made it harder for the special prosecutor to know whether a crime had been committed. "What we have when someone charges obstruction of justice is the umpire gets sand thrown in his eyes," Fitzgerald said, using a labored baseball metaphor. "He's trying to figure out what happened, and somebody blocked their view."

The metaphor, however, is unconvincing: "It's more like criminalizing someone for arguing with the umpire's ball or strike call," says Harvard Law Professor and tnr contributor William J. Stuntz. Libby's alleged obstruction did not block Fitzgerald's ability to decide whether he violated the Intelligence Identities Protection Act; Fitzgerald could have concluded months ago that there was no violation. To breach the meticulously drafted law, a person with access to classified material who learns the identity of a covert agent has to intentionally disclose information identifying the agent, knowing that this information will blow the agent's cover and that the United States is taking affirmative measures to conceal the agent's identity.

The interesting thing here is that to all appearances, Fitzgerald took almost no measures to determine whether the CIA ever took affirmative measures to conceal Ms. Plame's identity. Given that the burden rests on the prosecution to prove the elements of the crime, this looks a bit suspicious - even the most inept prosecutor should foresee that Libby's attorneys would raise this as a defense and be ready to counter it. And in point of fact, there is copious circumstantial evidence that the CIA was not protecting her identity, as Victoria Toensing, one of the authors of the IIPA Act, notes. Rosen continues:

In their exemplary brief filed in March 2005, a consortium of news organizations argued that there were serious questions about whether Plame qualified as a covert operative under the law. She was working at a desk job in Langley in July 2003, when Robert Novak first revealed her name, and arguably had not been assigned to duty outside the United States in the past five years, as the law requires. Moreover, there was little evidence that the government was taking "affirmative measures" to conceal her identity. Given the continuing uncertainty about Plame's status, it's unlikely that Libby both knew she was a covert agent in 2003 and disclosed her identity intentionally. (As Fitzgerald noted at his press conference, negligent or accidental disclosures are not illegal.) And, even if you assume the worst about Libby, it's hardly obvious that the question of who first told him that Plame worked for the CIA--was it, in other words, his government colleagues or NBC's Tim Russert?--would cast much light on whether he broke national security law.

In his press conference, Fitzgerald abruptly shifted gears when questioned about why he brought perjury and obstruction charges without finding an underlying violation of the law. He suggested that it didn't matter what law Libby violated. "When you do a criminal case, if you find a violation, it doesn't really, in the end, matter what statute you use if you vindicate the interest ... of the public in making sure he's held accountable," he said self-righteously. This is the usual last defense of the special prosecutor, but Fitzgerald suggested that he was doing what ordinary prosecutors do all the time. "When I got to Chicago, I knew the people before me had prosecuted false statements, obstruction, and perjury cases," he said at his press conference.

Contrary to Fitzgerald's claim, charges of perjury, obstruction, and false statements are relatively rare in federal criminal prosecutions. In 2004, federal prosecutors launched 80 perjury cases out of 70,397 criminal cases. "Ordinary prosecutors rarely indict people for perjury and more often indict people for false statements, but almost always as part of a broader indictment including more serious charges," Stuntz says. A review of Fitzgerald's record as an ordinary prosecutor suggests he has presided over more perjury, obstruction, and false statement cases than most. But, when he has issued indictments on those charges alone, it's usually been for bit players covering for people indicted for major crimes. It's special prosecutors who are known for indicting suspects for making false statements alone, without charging anyone with any other indictable offense.

I'm not sure I entirely buy off on Mr. Rosen's analysis. While I couldn't agree more that Mr. Libby is perhaps unfairly being singled out for selective prosecution, his case is akin to the Sunday speeder who "just happens" to get caught. If it can be proved (and this is still in doubt) that he intentionally lied to federal prosecutors and obstructed the investigation then he deserves to be prosecuted. Period.

Yes, it's unfair. Yes, no one else remembers what they did a year, or two years ago. That is very likely why Mr. Libby will not be convicted, and why this particular indictment was unwise. But let Mr. Fitzgerald make his case. He is welcome to try and prove intent to mislead. I suspect he has his work cut out for him. The Washington Times raises an objection along these lines in light of Woodward:

Although Mr. Fitzgerald was exempted from the normal Department of Justice regulations governing the conduct of a special counsel, he should nevertheless follow the requirements of the U.S. Attorneys Manual, which provides that "both as a matter of fundamental fairness and in the interest of the efficient administration of justice, no prosecution should be initiated against any person unless the government believes that the person probably will be found guilty by an unbiased trier of fact." Mr. Fitzgerald may well have believed this standard met when he sought the indictment; he should now reconsider.

The core of this case is the claim that Mr. Libby misled investigators, and the grand jury, about having been told of Mrs. Plame's CIA employment by journalists. In particular, the indictment alleges that Mr. Libby claimed to have been informed of Mr. Plame's status by NBC's Tim Russert in July 2003, and that he later told both Time Magazine's Matthew Cooper and The New York Times' Judith Miller he had heard this fact from other reporters. Evidently, each of these journalists remembers things differently, and that is the foundation of Mr. Fitzgerald's case against Mr. Libby.

Enter Bob Woodward, the Pulitzer Prize-winning (for reporting the Watergate scandal with Carl Bernstein) assistant managing editor of The Washington Post. Mr. Woodward has told prosecutor Fitzgerald that he was informed of Mrs. Plame's CIA connection by another government official in mid-June 2003 ("the reference seemed to me to be casual and offhand, and it did not appear to me to be either classified or sensitive"). Moreover, Mr. Woodward has also stated that he met with Mr. Libby on June 27, taking with him a list of questions which included references to "yellowcake" and to "Joe Wilson's wife." Mr. Wilson, of course, was sent to Niger by the CIA (evidently at his wife's recommendation) to investigate whether Saddam Hussein tried to buy nuclear weapons (yellowcake) material there. Responding to Mr. Fitzgerald's questions, Mr. Woodward also stated that it was possible (although he does not recall) that he discussed Mr. Wilson or Mrs. Plame with Mr. Libby.

The Times goes on to point out that a perjury conviction requires a jury to find, beyond a reasonable doubt, that Libby intentionally lied about a material fact.

This is critical. Proving, in a confusing case where so many of the players seem to have conflicting memories, that Libby lied vs. dis-membered is going to be tough. Convincing a jury that it matters WHICH media source told him (Woodward, Cooper, or someone else?) is another hurdle that will have to be overcome. And the biggest material fact of all is this: if no crime was committed and Mr. Fitzgerald never even attempted to find out whether the CIA took affirmative steps to conceal her identity, what on earth was so material about the disclosure of it, much less the timing thereof?

All questions a jury may well find troubling.