Libby Reax Roundup Redux

J. Peter Mulhern:

Fitzgerald never had any reason to believe that there was a crime to be solved in the "CIA leak case." Nothing in the U.S. code purports to make talking about Valerie Plame a crime. Fitzgerald never had any legitimate grounds for pursuing a criminal investigation because he never had even the theoretical possibility of a crime to investigate.

His own conduct strongly suggests that he knew this from the beginning. If Fitzgerald really believed that there was something criminal about revealing Valerie Plame's identity he would have filed charges against at least two defendants on the day he took over the case. Richard Armitage and Robert Novak were both guilty of discussing Plame and Fitzgerald knew it on day one. But he filed no charges. Why not? Probably because he knew that neither Armitage nor Novak nor anyone else had violated any law by talking about Valerie Plame.

Since Fitzgerald had no crime to investigate, the sole purpose of his investigation, even before it became his, was to keep asking questions until discrepancies in the testimony made it possible to convince a bent jury that somebody important lied under oath. This despicable game is a clear violation of the Fifth Amendment and it cannot result in a lawful conviction for perjury.

Prosecutors can sometimes make out a perjury case even when an investigation, undertaken and pursued in good faith, fails to produce enough evidence to charge anyone with any other crime. But they cannot legally pursue an investigation solely as a means to manufacture evidence of a process crime such as perjury. That is a form of entrapment known in the trade as a perjury trap. A prosecutor who sets such a trap is lower than catfish and twice as repulsive.

The President is responsible when his employees sink so low. When a federal prosecutor abuses power it is the President's power he is abusing. There is no indication that President Bush understands this.

More than half way through his second term the President still hasn't been able to take control of his own government. The Libby case reached its sad conclusion because the elements within both the CIA and the DOJ used some of the President's own powers to attack him. Still he does nothing.

Firing Fitzgerald would be an excellent place to start.

You think Dubya has that kind of courage? No way---might mess up his illegal alien amnesty plan.

Sweetness & Light:

Whatever else that can be said about Mr. Patrick Fitzgerald, he sure is a slippery customer. He certainly is not above making highly misleading statements at his press conferences.

As you may recall, at his last press conference announcing the indictment of Mr. Libby, Mr. Fitzgerald made a number of highly misleading statements about his case. Including the implication that he could have prosecuted Mr. Libby and possibly others because Ms. Plame’s employment at the CIA was "classified."

In fact, that is not quite true. Yes, everyone’s employment at the CIA is classified, including the cafeteria workers and janitors. There are many levels of classification.

But there are no laws against leaking classified information such as employment status. The US does not have an Official Secrets Act, as the United Kingdom does. Or a number of people from the New York Times would still be sitting in prison after their publication of the highly classified "Pentagon Papers."

Moreover, Mr. Fitzgerald hoped he would confuse enough of the viewers into thinking that "classified" means "covert." Which would mean that exposing Valerie Plame’s status was a real physical threat to her.

But that is simply not true. Still, Fitzgerald clearly wanted to perpetuate that untrue impression.

Vigilis would point out that willful misrepresentation is a core competency of the legal profession.

Tom Maguire:

My guess - Judge Walton was speaking God's truth when he said that "I to this day don't know what her actual status was" under the relevant statute. I'll bet the CIA lawyers who prepared the referral recited the Intelligence Identities Protection Act, noted a few reasons that maybe she did qualify as covert, noted a few reasons that maybe she did not, noted that the issue has never been litigated, and moved on.

Judge Walton has never requested briefs from the prosecution or defense on the question of her covert status, has not researched the law, and has no basis for a ruling.

So he does not know. But we would all like to find out. And since the investigation is over, this won't interfere with anything, and it might pre-empt a Congressional investigation (I mention that as a WH strategy point - I welcome a Congressional look at this).

Is there any spine at all in the White House?

Nope. Bush surrendered to George Tenet and Colin Powell a long time ago. Don't expect him to stand up for those who serve him and our nation.