You're A Mean One, Mr. Fitz

Hack prosecutor Patrick Fitzgerald goes for broke:

During the CIA-leak probe, Fitzgerald looked into possible violations of the Intelligence Identities Protection Act and the Espionage Act. He did not charge anyone with breaking either law. But in his court filing, Fitzgerald writes that the grand jury “obtained substantial evidence indicating that one or both of the…statutes may have been violated.” Therefore, Fitzgerald is asking Judge Reggie Walton to treat Libby as if it had been proven that such crimes occurred. “Because the investigation defendant was convicted of endeavoring to obstruct focused on violations of the IIPA and the Espionage Act,” Fitzgerald continues, “the court much calculate defendant’s offense level by reference to the guidelines applicable to such violations.”

As a basis for his argument, Fitzgerald is using a common legal distinction: It’s more serious to obstruct a murder investigation than a shoplifting investigation. The problem, for Fitzgerald, is that he never proved that a crime, as defined by either the Intelligence Identities Protection Act or the Espionage Act, actually occurred. Now, he’s arguing not only that he proved a crime occurred but that Libby knowingly took part in it. The formula for calculating the sentence recommendation, Fitzgerald writes, “is designed to match the offense level to the conduct and result intended by the defendant.” [italics in the original]

Fitzgerald’s conclusion differs with the case presentencing report prepared by probation officials. Their report is not public, but Fitzgerald’s brief quotes from it. “The criminal offense would have to be established by a preponderance of the evidence,” the portion of the presentencing report quoted by Fitzgerald says, but “the defendant was neither charged nor convicted of any crime involving the leaking of Ms. Plame’s ‘covert’ status.” Therefore, probation officials argue, the more serious sentencing standards should not be applied.

Fitzgerald disagrees and at times in his argument appears irritated that Libby did not confess to a crime which Libby maintains he did not commit. “The reasons why Mr. Libby was not charged with an offense directly relating to his unauthorized disclosures of classified information regarding Ms. Wilson,” Fitzgerald writes, “included, but were not limited to, the fact that Mr. Libby’s false testimony obscured a confident determination of what in fact occurred, particularly where the accounts of the reporters with whom Mr. Libby spoke (and their notes) did not include any explicit evidence specifically proving that Mr. Libby knew that Ms. Wilson was a covert agent.”

The fact that Valerie Plame is on her third story concerning how her hair-helmeted hubby got sent to Niger is utterly lost on the dogged prosecutor, however. No prosecution appears planned against confessed Plamegate leaker Dastardly Dick Armitage, either. Maybe Fitz has been playing racquetball doubles with Prince Bandar, Armitage, and Colin Powell.