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last column, I tried to deflate expectations a bit about the li kely consequences of the work of Special Counsel Patrick Fitzgerald; to bring them down to the realistic level at which he was likely to proceed . I warned, for instance, that there might not be any indictments, and F itzgerald might close up shop as the last days of the grand jury's term elapsed. And I was certain he would only indict if he had a patently cle ar case. Now, however, one indictment has been issued -- naming Vice President Che ney's Chief of Staff Lewis "Scooter" Libby as the defendant, and chargin g false statements, perjury and obstruction of justice. If the indictmen t is to be believed, the case against Libby is, indeed, a clear one. Having read the indictment against Libby, I am inclined to believe more w ill be issued.
transcript of the press conference, it appears Libby's saga may be only Act Two in a three-act play. And in my view, the person who should be to ssing and turning at night, in anticipation of the last act, is the Vice President of the United States, Richard B Cheney. The Indictment: Invoking the Espionage Act Unnecessarily Typically, federal criminal indictments are absolutely bare bones. Just e nough to inform a defendant of the charges against him.
the Sixth Amendment an accused must "be informed of the nature and cause of the accusation." And Rule 7 of the Federal Rules of Criminal Procedure requires that, "The i ndictment . be a plain, concise and definite written statement of th e essential facts constituting the offense charged." Federal prosecutors excel at these "plain, concise and definite" statemen t indictments - drawing on form books and institutional experience in dr afting them. Thus, the typical federal indictment is the quintessence of pith: as short and to the point as the circumstances will permit. Again, Libby is charged with having perjured himself, made false statemen ts, and obstructed justice by lying to FBI agents and the grand jury. A bare-bones indictment would address only these alleged crimes. But this indictment went much further - delving into a statute under whic h Libby is not charged. Its first sentence e stablishes that Libby had security clearances giving him access to class ified information. Then 1 goes on to state: "As a person with such cl earances, LIBBY was obligated by applicable laws and regulations, includ ing Title 18, United States Code, Section 793, and Executive Order 12958 (as modified by Executive Order13292), not to disclose classified infor mation to persons not authorized to receive such information, and otherw ise to exercise proper care to safeguard classified information against unauthorized disclosure."
It's the Espionage Act -- a broad, longstanding part of the criminal code. The Espionage Act criminalizes, among other things, the willful - or gros sly negligent -- communication of national-defense related information t hat "the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation." It also cr iminalizes conspiring to violate this anti-disclosure provision But Libby isn't charged with espionage. He's charged with lying to our go vernment and thereby obstructing justice. Libby's Obstruction Has Blocked An Espionage Act Charge The Special Counsel was asked, "If Mr Libby had testified truthfully, wo uld he be being charged in this crime today?"
affiliation with the CIA, whether or no t she was covert, was classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espio nage Act."
I don't buy that theory, bu t I do know you should be very careful in applying that law because ther e are a lot of interests that could be implicated in making sure that yo u picked the right case to charge that statute." But let's assume, for the moment, that the allegations in th e indictment are true. If that is true, you cannot figure out the right judgment to make, whether or not you should charge someone with a seriou s national security crime or walk away from it or recommend any other co urse of action, if you don't know the truth....
What I'm simply saying is one of the harms in obstruction is that you don't have a clea r view of what should be done. And that's why people ought to walk in, g o into the grand jury, you're going to take an oath, tell us the who, wh at, when, where and why -- straight."
n or about June 12, 2003 Libby was advised by the Vice President of the United States that Wilson's wife wo rked at the Central Intelligence Agency in the Counterproliferation Divi sion. Libby understood that the Vice President had learned this informat ion from the CIA." In short, Cheney provided the classified information to Libby - who then told the press. Anyone who works in national security matters knows that the Counterproliferation Division is part of the Directorate of Operati ons -- the covert side of the CIA, where most everything and everyone ar e classified. According to Fitzgerald, Libby admits he learned the information from Che ney at the time specified in the indictment. But, according to Fitzgeral d, Libby also maintained - in speaking to both FBI agents and the grand jury - that Cheney's disclosure played no role whatsoever in Libby's dis closure to the media.
Russert during this phone call he learn ed it as if it were new." So, in Fitzgerald's words, Libby's story was that when Libby "passed the information on to reporters Cooper and Miller late in the week, he passe d it on thinking it was just information he received from reporters; tha t he told reporters that, in fact, he didn't even know if it were true. He was just passing gossip from one reporter to another at the long end of a chain of phone calls." This story is, of course, a lie, but it was a clever one on Libby's part. It protects Cheney because it suggests that Cheney's disclosure to Libby was causally separate from Libby's later, potentially Espionage-Act-viol ating disclosure to the press. Thus, it also denies any possible conspir acy between Cheney and Libby. And it protects Libby himself - by suggesting that since he believed he w as getting information from reporters, not indirectly from the CIA, he m ay not have had have the state of mind necessary to violate the Espionag e Act. Thus, from the outset of the investigation, Libby has been Dick Cheney's firewall. And it appears that Fitzgerald is actively trying to penetrate that firewall. It has been reported that Libby's attorney tried to work out a plea deal. But Fitzgerald insisted on jail time, so Libby refused to make a deal. It appears that only Libby, in addition to Cheney, knows what Cheney kne w, and when he knew, and why he knew, and what he did with his knowledge . Fitzgerald has clearly thrown a stacked indictment at Libby, laying it on him as heavy as the law and propriety permits. He has taken one continu ous false statement, out of several hours of interrogation, and made it into a five-count indictment. It appears he is trying to flip Libby - th at is, to get him to testify against Cheney -- and not without good reas on. Neither Cheney nor Libby (I believe) will be s o foolish as to crack a deal. And Libby probably (and no doubt correctly ) assumes that Cheney - a former boss with whom he has a close relations hip -- will (at the right time and place) help Libby out, either with a pardon or financially, if necessary. Libby's goal, meanwhile, will be to stall going to trial as long as possible, so as not to hurt Republicans ' showing in the 2006 elections. So if Libby can take the heat for a time, he and his former boss (and fri end) may get through this. But should Republicans lose control of the Se nate (where they are blocking all oversight of this administration), I p redict Cheney will resign "for health reasons."
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