Clarifying the Plame Game

I̢۪m going to once again try to clarify what I believe actually happened in the course of Patrick Fitzgerald̢۪s investigation into the outing of Valerie Plame, which ultimately led to the indictment of Lewis Libby. If you̢۪re uninterested in this topic, simply move along.

Please, if you decide to comment on this post, I only ask that you actually address what it is I’m asserting here. If you cannot refute it, don’t bother with ad hominem, straw man, or other fallacious argumentation — they’re getting old already. Feel free to agree with me all you want.

Valerie Plame was a “CIA officer” whose employment status was “classified” and this status “was not widely known outside the intelligence community.” On July 14, 2003, Robert Novak disclosed her identity in an op-ed column he wrote examining why Joe Wilson (Plame’s husband) was sent to Africa to investigate the now-proven assertion that Saddam Hussein attempted to buy yellow-cake uranium from Niger.

Because Plame was outed, the CIA asked the Justice Department to investigate the leak, and the DoJ appointed Patrick Fitzgerald as special prosecutor to investigate whether in fact a crime had been committed.

My contention is that Fitzgerald took the fact of the leak as prima facie evidence that a crime had been committed, and went out on a fishing expedition. Most of the comments on my previous posts indicate that many of you make this same assumption.

But I ask you, what specific crime was committed in the outing of Valerie Plame?

Outing a member of the intelligence community is a serious matter. So serious, in fact, that in 1982 Congress passed the Intelligence Identities Protection Act — which sought to make it a serious federal crime to disclose the identity of a “covert agent.” As I’ve said before, all indications are that Valerie Plame was in fact not a “covert agent” under the definition given in section 4 of the IIPA. Joe Wilson’s lies aside, there is no one — including Patrick Fitzgerald — who has asserts that Plame falls into this specific legal category. The best explanation of this can be found in this article, written by the authors of the IIPA.

Yes, the legal threshold here is rather high. But this was seemingly irrelevant to Fitzgerald, who admitted to not being able to prove the original crime — not because of Libby’s alleged obstruction, but because he founded his investigation on the false assumption that the leak itself was enough evidence for him to proceed. He has yet to make a definitive statement as to whether the crime he was charged with investigating even occurred. And as I said in a previous post, the first step in his investigation should have been to clearly define Plame’s status before deciding to proceed. Again, had he done so he would have known enough to end his investigation immediately after it began. Yes, her status was classified; yes, her named was leaked. But a violation of the IIPA simply did not happen, and Libby’s indictment remains a product of the process.

The outing of Plame is not laudable. But from what we have to go on in terms of Fitzgerald̢۪s words, nor was it felonious. It was simply using the truth as political hardball to combat the serial lies of Plame̢۪s husband, who drastically overplayed his hand.

FILED UNDER: General, , ,
Leopold Stotch
About Leopold Stotch
“Dr. Leopold Stotch” was the pseudonym of political science professor then at a major research university inside the beltway. He has a PhD in International Relations. He contributed 165 pieces to OTB between November 2004 and February 2006.

Comments

  1. Jim Rhoads (vnjagvet) says:

    In a nutshell, I think you pretty much nailed it. What is your analysis of the indictment.

    Fwiw, I think it is mighty weak.

  2. ultraw says:

    That was much better stated than your prior post, Leopold, and though I don’t agree with your conclusion I wanted to express appreciation for the effort thoughtfully raising a serious question.

    We’re both at a serious disadvantage in answering the question conclusively because Fitzgerald is revealing very little about the information he has beyond what directly applies to the indictment. So I’m afraid that this discussion has to be hypothetical to some extent.

    However, I believe Fitzgerald did provide a few clues and common sense can fill in much of the rest.

    To begin with, Fitzgerald spoke during his press conference of two statutes that might have been used for the underlying crime – if it existed. Not just the IIPA. In discussing both, he acknowledged the difficulties in prosecuting both (each for their own reasons), but did not concede either as inapplicable. Instead he chose the obstruction of justice approach as the more appropriate approach under the circumstances of this case. During the press conference he rather pointedly noted that if Libby were guilty of one of those crimes tht a perjury and obstruction of justice conviction would serve as a substantial penalty for it.

    Whether Fitzgerald has other information that validates the applicability of the IIPA (maybe Valerie made an undercover visit to Europe in 2000 that we don’t know about) I have no way of knowing.

    But the larger point of there being two possible statutes in play today is that the investigation was never limited to whether the IIPA was violated. It was an investigation of the leak of classified information. Any number of laws may have been violated in the process. You can’t know if *or* what until the facts of the case have been determined.

    For example, you appear to assume that the outing of Valerie Plame is in itself the only possible violation of the law. That’s not necessarily true. A much more serious violation could underly that visible act – such as the inappropriate copying and distribution of classified documents that mention Plame – as well as other classified information.

    As it happens, that does not appear to be the case, but that could not possibly be known until investigated. And Fitzgerald would be remiss in his job if he assumed that. He *had* to determine the facts to find that out.

    (You probably remember all the press coverage about the document being passed around Air Force One. The press was trying to figure out whether Rove saw it. But I bet Fitzgerald was out to track it’s handling from beginning to end.)

    With that fact finding mission in mind, please remember that Libby was interviewed very early on and, according to Fitzgerald, lied about his involvement right out of the gate, sending the investigation down a false path.

    Aside from annoying the hell out of Fitzgerald, that had to make Libby look guilty as sin. And whether or not Libby really is guilty of an underlying crime, he appears to have deliberately misdirected the investigation, which sounds to me like the definition of obstruction of justice.

    I’m not terribly keen on obstruction of justice charges absent an underlying crime either, but this seems awfully extreme. A national security investigation. Lies right from the start – that actually did impede the ivestigation. And underlying actions that at least skirted the illegal awfully close.

  3. ken says:

    But I ask you, what specific crime was committed in the outing of Valerie Plame?

    You are pretty much one dumb fuck. Didn’t you say that her job was classified information?

    Since when is giving national security classified information to our enemies through the press not a criminal act?

  4. MOG says:

    Ken, there’s a significant difference between “classified” and classified with respect to “national security.” Omadon!

    I see this indictment as simply chickenshit (an internationally understood legal term-of-art used by prosecutors everywhere.) There was no way Fitzgerald was going to come out of this one with nothing to show for it. Sure, lying to any Grand Jury is a felony. And it shouldn’t matter that the underlying “charges” may not turn out to be proven or even valid. But for the dems to jump all over this one is laughable — they quickly forget about an impeachment for the same thing.

  5. Jack Ehrlich says:

    Hey Ken, it seems you are the dumb fuck. Just because something sounds like it should be illegal does not mean it is. The law in question says something to the effect that she (Plame) had to have been stationed overseas within 5 years of the incident, which she was not, and that Libby, or whoever, had to know she was covert, which for the purpose of this statute she was not, and they had to be outing her on purpose, which they were not. Truth is, if the liar (this was established) Joe Wilson had not done his own analysis work, deciding what the information he brought back meant, and which parts of it needed to be revealed to the press, had been truthful about who sent him to Niger and why, none of this would have happened. So, Ken, internal memos from Plame, and the liar Wilson own statements are what outed Valerie Plame, the agent, who’s cover was that she worked every working day at Langley.

  6. ken says:

    Ken, there’s a significant difference between “classified” and classified with respect to “national security.”

    If there is you are certainly not the one who gets to determine the difference.

    Anyone working undercover for a CIA created front company like Brewster and Jennings, as Valerie Plame was, falls into the category of a national security issue as far as the American people understand that term.

  7. ken says:

    Just because something sounds like it should be illegal does not mean it is.

    I guess classified information means nothing more to you than the classified ads in the newspaper?

    If only the nation were aware of this we could have saved ourselves the trouble of prosecuting all those people who willingly give classified information to those who would use it against us. Why didn’t you say something sooner?

    Either that or we are learning just how much we cannot trust conservatives with classified information.

  8. ATM says:

    Since Plame is believed to have been already exposed twice, one through Ames, and the other CIA/State foul up regrading the US Interests section in Cuba, one would hope that nothing of any national security value would be connected any longer with the cover company. If that is not case, then that would represent a serious CIA foul up, as the cover company’s contacts would already be compromised by its association with the previously exposed Plame.

  9. Alan says:

    Hello Leopold,

    Investigating the disclosure of classified information is a very reasonable thing to do. That is what Fitzgerald was tasked to do and that is what he did. Lying to the FBI and falsely testifying under oath are not reasonable things to do. Not only are those crimes in and of themselves, its reasonable to assume there are one or more underlying crimes that have been covered up by the lying and obstruction of justice. That is precisely why perjury and obstruction of justice are illegal and why they are prosecuted.

    Not to worry though, by falsely blaming journalists for the leak, Libby succeeded in delaying the investigation until after the 2004 elections. For this, he will receive a presidential pardon, and the corruption in government will go on.

  10. Steve Verdon says:

    Since when is giving national security classified information to our enemies through the press not a criminal act?

    Maybe we should ask that guy who got a slap on the wrist for using his pants as a filing cabinet for classified information.

  11. odograph says:

    You ask us to constrain our discussion, and focus inward, ever inward, until there is a universe containing a “Libby” and a “Plame.” How can there be a crime, when they are the only two people in the world?

    My universe is bigger than that. It contains a war, with more killed today.

    Don’t Think of an Elephant

  12. spencer says:

    You have still completely failed to show any evidence that she was not a covert officer as defined by the legislation.

    All you have done is repeat the assertion.

    Provide some reason to believe your assertion.

    Such “UNBIASED” observers as Attorney General Ashcroft accepted the charge. What evidence do you have that he was incorrect?

  13. spencer says:

    Your reference to the Washington Post article is no evidence.

    Victoria Toensing and Bruce W. Sanford obviously do not understand what they are writing about. They say someone working under cover at Langley is a no, no. Nothing could be further from the truth. A very large share of the people working at Langley are under cover as they rotate back and forth between the US and foreign posting.

  14. McGehee says:

    You have still completely failed to show any evidence that she was not a covert officer as defined by the legislation.

    And apparently no one has shown any evidence to the contrary. When this goes to a court of law, Libby will not be called upon to prove Ms. Plame was covert; rather, it will be the responsibility of the prosecution to present evidence that she was.

    What Leopold is doing is predicting that this will not happen, because in his opinion (also mine, but he didn’t ask me) there is no such evidence because in his opinion (also mine, but he didn’t ask me) she was not covert.

    And since neither Leopold nor I are going to be in court arguing either side, your asking here for evidence that Ms. Plame was not covert, is simply moronic.

  15. McGehee says:

    Libby will not be called upon to prove Ms. Plame was covert;

    Typo. The above should read:

    Libby will not be called upon to prove Ms. Plame was not covert;

  16. MOG says:

    Covert or not — what violation of law was being investigated? If there was ultimately no violation of law for that which was being investigated, the obstruction/perjury charges — while serious in their own right in the abstract — are significantly compromised.

    This is similar to the claim that another’s lie “was only about sex.”

    A violation is a violation. But some are stronger than others. The real issue here is the background story that the left want’s to get to, and this indictment is the only morsel to hang their collective hats on. A very tiny morsel at that.

  17. Barry says:

    James Joyner: “My contention is that Fitzgerald took the fact of the leak as prima facie evidence that a crime had been committed, and went out on a fishing expedition. Most of the comments on my previous posts indicate that many of you make this same assumption.”

    James, what evidence do you have of a ‘fishing expedition’? The charges brought against Libby are those directly relevant to the obstruction of this investigation. I’ve already compared and contrasted with Starr’s actual fishing expedition.

  18. fred says:

    perhaps we can refer to novak’s own words re: how the name appeared:

    “They [CIA] asked me not to use her name, but never indicated it would endanger her or anybody else. According to a confidential source at the CIA, Mrs. Wilson was an analyst, not a spy, not a covert operative and not in charge of undercover operators,” Novak said.

    IF she were a NOC, wouldnt the CIA itself have stopped novak? who actually leaked the name publically. until then, it had not been discussed in the public correct? and the CIA itself did not stop him. i think this closes the case. or am i a dumb f*ck?

    additonally, just for fun to add some depth here, novak dicusses the admin “officials” and what they told him:

    “Novak said Monday that he was working on the column when a senior administration official told him the CIA asked Wilson to go to Niger in early 2002 at the suggestion of his wife, whom the source described as “a CIA employee working on weapons of mass destruction.”

    Another senior administration official gave him the same information, Novak said, and the CIA confirmed her involvement in her husband’s mission”

    no mention by the admin “officals” of her status.

    the dems are just silly. funny for sure. kind of sad. but “silly” is the only word i can come up with. they just aren’t to be taken seriously anymore. bafoonish. clown-like. foppish. those come to mind too. an amazement to watch though. in a sad kind of way.

    hey, here is a future trivia question, see if you know the answer: what do the whigs, the know-nothings, the free soilers and the democrats have in common?

  19. Anderson says:

    Barry, don’t blame Stotch’s nonsense on JJ.

    Stotch has been told a dozen times now that the IIPA is not the only relevant statute. His indifference to really learning anything is staggering and disappointing.

    For that matter, is there no statute governing the unauthorized release of classified info by someone who’s been issued a security clearance?

    If not, what the hell does “classified” mean? Pretty please don’t share this with anyone?

  20. Chloe Allred says:

    You made a very well thought-out, and fact, not opinion, based point on the legal bases of this investigation. However, beyond this indictment, was the leaking of this agent’s name “morally justifiable”. For such an administration that prides itself on high morals, was this “right”? I do not believe so, and this leak seems to be a government trying to stifle the retaliation of the press.

  21. S says:

    You and other Bush apologists keep going back to the ploy that she wasn’t covert–as if the CIA wouldn’t know this after the concluded their investigition and determined that the IIPA had been violated and refered it to DOJ. Now they aren’t commenting on her status because they aren’t supposed to. But they did comment on it before. The spokesman for the CIA was contacted by Novak before he printed his article:

    Harlow, the former CIA spokesman, said in an interview yesterday that he testified last year before a grand jury about conversations he had with Novak at least three days before the column was published. He said he warned Novak, in the strongest terms he was permitted to use without revealing classified information, that Wilson’s wife had not authorized the mission and that if he did write about it, her name should not be revealed.

    Harlow said that after Novak’s call, he checked Plame’s status and confirmed that she was an undercover operative. He said he called Novak back to repeat that the story Novak had related to him was wrong and that Plame’s name should not be used. But he did not tell Novak directly that she was undercover because that was classified.

    (emphasis mine) How can you say there is no evidence that she was undercover when you have the Spokesman for the CIA testifying under oath that she was? That is evidence. The eight pages of classified court documents that convinced three judges of disparate political stripes that this was a case of national security is pretty suggestive that a crime was committed. I am certain that Libby and the judges have a great deal of evidence and know exactly her status and importance but they are not allowed to say anything because of A) the rules of the grand jury and B) the rules of the CIA.

    Fitzgerald is indicting Libby on perjury and obstruction because they are easier to prove than the “intent” part of the IIPA law. He can’t get Libby’s intent because Libby lied to him. Plus those other crimes have a longer sentence. That is what prosecutors do–go for the gravest crime committed that is easiest to prove.

    The argument that Plame wasn’t covert is a “talking point” that is just gibberish–you think if you keep repeating it it will drown out all the known facts, and you (all) are doing a pretty good job of it, but only because you are all such good dittoheads.

    Don’t worry, there are more indictments to come. Fitzgerald indicted 65 defendents before he worked his way up the food chain to Governor Ryan–who he referred to in those previous indictments as “State Official A.” (Source)

  22. Chloe Allred says:

    Since I can find no reference of yours to my previous comments, I have come to the conclusion that you agree.

  23. Chloe Allred says:

    Here is a site where the polarization of American peoples is clearly visible. I, personally do not agree with you on your political views, however, I do not find it neccesary to insult you because of it. Countless others, obviously did, which is a very sad thing for America. Freedom of speech simply seems to be permitted. You can say what you will, I can argue, but to be insulting to someone who simply does not see eye to eye is complete garbage.Americans need to learn to live with other Americans. The UNITED States was not spawned to tear itself apart. Thank you for being polite.