No Easy Answers

    On February 17, Mark Kleiman composed a post entitled "Was Valerie Plame Wilson's employment classified information? - A challenge to Red Blogistan."

    His post threw down the gauntlet on the subject of the "covert" and/or "classified" status of Wilson's wife, Valerie Plame, and solicited rebuttals from "Glenn Reynolds, Tom Maguire, Victoria Toensing, Clarice Feldman, Byron York, and all their friends." Mr. Kleiman concluding that Mrs. Wilson had classified status, vs. the others claiming an absence of any protected status.

    The question of Mrs. Wilson's "status," and the interplay of "that status" with the ensuing investigation and indictment, is something I pondered a year ago. Given my strongly held belief that Mrs. Wilson had zero, none, nada protected status within the CIA, and that her "outing" was a political event with little or no security ramification, I tried to hypothesize a fact pattern that would account for the public players acting in more or less professional fashion.

    I disagree that the presence of the Libby indictment and prosecution is an unequivocal signal that Plame had some protected status. But I also disagree, rather strongly, with the position of the "Toensing, York, Feldman & Maguire camp" (for want of a better label), that Fitzgerald's conduct is unethical or an abuse of prosecutorial discretion, because Fitzgerald knew that Plame had no protected status. My exchange with Mr. Kleiman is an attempt to explain my rationale for holding what may appear to be conflicting positions.

-- Why not argue 'No leak of classified information' in open court? --

    There is a simple (in some ways) explanation for why Libby didn't use "she's not covert/classified" as a defense. That explanation is that Plame's status isn't relevant to the question of whether or not Libby lied to investigators. Well, not directly relevant -- relevant perhaps to motive to lie - for those who can find motive ONLY if the liar believes there is risk of criminal prosecution for telling the truth.

    The question of her status is often couched in the term "materiality." The logic goes that if there is no underlying crime (breaking an anti-leak statute), then false statements can't "mislead" the investigation. The investigation is forgone to conclude there was no classified leak. Hence a free pass for lying. Fitzgerald and Walton have (correctly) cut off this pseudo-defense. Toensing, Feldman and others persistently (and wrongly) assert it. It would be a wonderful defense if this was a criminal leak trial, but this isn't a criminal leak trial.

    Not that Libby wasn't persistent in trying to raise the defense. But as a matter of legal process, the status of Plame is IRRELEVANT to the question of whether or not Libby made deliberate and material misrepresentations to investigators.

    I doubt Plame had any kind of protected status within the CIA, wherein telling of her employment could possibly result in criminal liability. I think Fitzgerald "took the CIA report on its face" and didn't question the secrecy element - he didn't need to unless he was prosecuting a leak indictment. Look at this question in an "order of the investigation" analysis. Those who defend Libby say that the order of investigation should have been:

1. Confirm with the CIA that Plame's status was such that an IIPA or Espionage Act indictment would not fail
2. Only if a classified leak indictment could be made should the investigator look for the leaker

    Some of those who assert Plame was covert ALSO take the same order of investigation, but jump to the conclusion that the qualification in step "1" was made, simply based on the fact that the investigator looked for a leaker.

    My surmise is that the investigator skipped step "1." It was "assumed" by the investigator, to be visited later IF and ONLY IF leakers could be identified. The CIA kept (and is keeping) the status of Plame as an unknown.

    My surmise is that the FBI jumped right to "who's the leaker?" without challenging the CIA to prove or provide status of Plame - beyond the conclusory "there may have been a leak of classified information" report. Plame may have had some protected status, or maybe not - but that question is not illuminated by the Libby investigation and trial.

    There are many hints in the pleadings and filings that Fitzgerald was focused on false statements from his start, while entertaining the outside possibility that there may have been an IIPA or other classified leak violation.

    Another way to analyze the situation is using simplified "elements of a criminal leak."

1. Was Libby a possible leaker? On this element, the investigator charges that Libby mislead investigators. Libby asserted (and asserts) that he had no recollection of Plame working at the CIA, other than playing in the reporters' rumor mill, until he read the Novak column (as an aside, that too is part of the reporters' rumor mill).
2. Was the leak a criminal violation? On this element, there has been no test.

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From: Mark Kleiman
Date: Mon, 19 Feb 2007
To: cboldt
Subject: Re: Was Valerie Plame Wilson's employment classified information

    I think we're in agreement.

    It now seems uncontroversial that VPW's employment status was classified information. (At least, Tom Maguire concedes it.) That being true, Fitzgerald had a potential crime to investigate under the Espionage Act, whether or not she was "covert" for purposes of IIPA. It was in the course of that investigation that Libby told the fibs he's charged with. Therefore Toensing, York, and Feldman are wrong when they criticize Fitzgerald for running a major investigation where no underlying crime had been committed; even if that were true, or if a crime had been committed but he couldn't prove it, he couldn't make those determinations without investigating. Therefore their sympathy for Libby, caught in a manufactured crime by an overzealous prosecutor, is unjustified.

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From: cboldt
Date: Mon, 19 Feb 2007
To: Mark Kleiman
Subject: Re: Was Valerie Plame Wilson's employment classified information

-- I think we're in agreement. --

    Partially so.

-- It now seems uncontroversial that VPW's employment status was classified information. (At least, Tom Maguire concedes it.) That being true, Fitzgerald had a potential crime to investigate under the Espionage Act --

    Her "employment status was classified," whatever that means. At any rate, Fitzgerald acted as though there was sufficient basis to charge a leaking crime, if a leaker with appropriate mens rea could be identified, etc. My position is that Fitzgerald never TESTED this position (that Plame's position in fact had sufficient basis to charge a leaking crime), he took it as an article of faith, to be tested if and only if he identified a leaker with appropriate mens rea, etc.

-- It was in the course of that investigation that Libby told the fibs he's charged with. --

    Libby started lying to the FBI. By the time Fitz came up to speed (months later), he likely thought Libby had provided false statements. Fitzgerald decided to probe that false statements crime, which simultaneously probes the personal knowledge and mens rea elements necessary to prosecute a leak crime, assuming the secrecy and other elements would be filled in later.

-- Therefore Toensing, York, and Feldman are wrong when they criticize Fitzgerald for running a major investigation where no underlying crime had been committed --

    I disagree with their criticism, but my disagreement is predicated on a foundation that false statements is, on its own right, adequate grounds for the prosecutor to exercise his discretion.

    My support for Fitz's judgment is based on a willingness to prosecute false statements even if some other element of a crime is destined to come up unfounded. There is too much license to lie if the investigatory rule does not punish lying unless an underlying crime can in fact be made out.

    I disagree with your conclusion that Fitz had IN FACT established, to his own satisfaction, adequate "secrecy" grounds to charge a leaking crime.

-- Therefore their sympathy for Libby, caught in a manufactured crime by an overzealous prosecutor, is unjustified. --

    I think their sympathy is unjustified, but I arrive at that opinion via a slightly different route from the one you take.

    The crime of false statements wasn't manufactured by Fitz. The question of whether or not the investigation was warranted was made above his pay grade. An investigation there was (before he got there), and upon review of the witness statements, he saw what he thought were a few egregious liars.

    Feldman and Toensing would overlook false statements in THIS CASE, and their justification is that there was no [criminal] leak.

    Their logic bottoms out at "If there can be no [criminal] leaker, there can be no liar," or in a more nuanced phrasing, it's an abuse of prosecutorial discretion to pursue this liar.

posted by cboldt  # 2/22/2007 01:03:00 PM