The Kafkaesque Libby Prosecution Continues

Lewis 'Scooter' Libby is defending himself against a flawed indictment that never should have been brought by Special Counsel Patrick Fitzgerald. A former public official of impeccable integrity and brilliance is being pilloried on absurd charges. The need to defend his freedom from this unjustified legal jeopardy exacts a huge toll on his time, energy, finances, and every other aspect of the life of a man in his prime.

Fitzgerald's case is very likely to be thrown out of court at some point or other. It is far from clear that the Prosecution could ever establish beyond a reasonable doubt that Libby's testimony was untrue or anything but an innocent misstatement, the product of confusion, a mistake or faulty memory. But beyond that, the case must fail because the prosecution has omitted the key step of establishing that an underlying crime warranting the investigation ever existed. In court filings, Fitzgerald admits he didn't even try to establish this necessary legal predicate, and disingenuously dismisses the question as immaterial.

The indictment of Scooter Libby raises the question whether you can indict someone for purportedly giving false information to a grand jury about a matter which never met the statutory prerequisites for proceeding to an investigation in the first place. 

A comparison illustrates the fatal flaw. Fitzgerald could not convict Scooter Libby for lying about what he had for lunch a year ago, if the investigation in which he made that statement had no relationship to his lunch that day. For exactly the same reason, he cannot win a conviction of Libby for lying to prosecutors while they are in effect on a fishing expedition, rather than pursuing evidence of an actual crime.

Fitzgerald charged Libby with making false statements to federal investigators, perjury before a grand jury and obstruction of justice. Absent an underlying applicable criminal law, there is no justification for bringing charges about lying to investigators or under oath before a grand jury. Without a legitimate investigation to be impeded, no charges of obstruction of justice can be brought, either.

Discovery is a process in which the parties get to see and test the evidence of their opponents. As discovery proceeds, we are finding more and more about how flimsy is the case against Libby. And Fitzgerald's responses in discovery, that the factual support for the predicates of his investigation are not material, are beyond disingenuous. 

The details are a bit complex, so the antique media have not lavished much attention on the flawed nature of the prosecution. For most of them, Dick Cheney's former chief of staff is far from a sympathetic figure, and they relish his indictment as symbolic of The Larger Truth — the imagined corruption of the Bush administration.

It is worthwhile to take a closer look at the flaws in the case.

The Missing Predicates

Predicate in legal terminology means the essential facts and circumstances which must be met under a statute to make out a violation of it. For false information given to investigators or affirmed under oath to be criminal, it must be material to a crime. If it isn't material to a crime, untruths are no more criminal than would be lying about how many helpings of dessert one had at lunch or whether a particular dress made a female friend look fat.

In the indictment,  Fitzgerald indicated his office was investigating whether several statutes relating to classified information had been violated. But only one law, the Intelligence Identities Protection Act [IIPA] (50 U.S.C. Sec. 1421) is relevant. As for the other possibilities, Fitzgerald might as well have suggested he was considering whether Libby had flown a commercial airline without a license to do so—so clearly inapplicable are the other Statutes he mentions.

Only the IIPA could possibly have any bearing, and that law is so narrow in its application it had to be evident within weeks of his receipt of his charge that the law's predicates could not have been met. Indeed, the carefully worded language of the law reflects a clear congressional purpose to make this law the exclusive venue for punishing the disclosures of intelligence agents' identities — removing this offense from the Espionage Act's purview altogether.

This point has been demonstrated conclusively by David Rivkin Jr. and Lee Casey, in an op—ed which appeared in the Wall Street Journal.

Congress did not...forbid the identification of anyone serving in a 'classified' status. Genuinely covert agents alone were to be protected — 'only those identities which it has determined to be absolutely necessary to protect for reasons of imminent danger to life or significant interference with vital intelligence activities.'

Under the act, criminal sanctions can be imposed only if the identity revealed is (1) of someone whose status is classified and who is serving, or has served within five years, outside the U.S.; and (2) where the alleged leaker knows that the U.S. is "taking affirmative measures to conceal such covert agent's intelligence relationship to the United States."  The statute itself appears in footnote [1] at the end of this article

To establish a violation of IIPA, Fitzgerald had to prove at a minimum three things:

(1) That Plame was a covert agent serving abroad within the prior 5 years.

There is no probative evidence Libby could provide in his testimony to this point. All evidence on this point is in the hands of Fitzgerald's client in this matter, the CIA. In response to discovery motions by Libby's defense, Fitzgerald says he never sought all the evidence of that because it is not material.

In his press conference announcing the indictment, Patrick Fitzgerald performed quite a tap dance around this issue:

'QUESTION: Can you say whether or not you know whether Mr. Libby knew that Valerie Wilson's identity was covert and whether or not that was pivotal at all in your inability or your decision not to charge under the Intelligence Identity Protection Act?

FITZGERALD: Let me say two things. Number one, I am not speaking to whether or not Valerie Wilson was covert. And anything I say is not intended to say anything beyond this: that she was a CIA officer from January 1st, 2002, forward.

I will confirm that her association with the CIA was classified at that time through July 2003. And all I'll say is that, look, we have not made any allegation that Mr. Libby knowingly, intentionally outed a covert agent.

Rivkin and Casey comment:

In any event, she wasn't a covert agent, and the IIPA never applied. Ms. Plame simply did not meet the IIPA's demanding test. She was not undercover overseas, and had not evidently been posted abroad since at least 1997. She was living under her own name and working a desk job at headquarters. To the extent that her job status was "not common knowledge outside the intelligence community" as asserted by Mr. Fitzgerald, this is irrelevant. Leaving aside the coy nature of this claim, which begs the question whether her affiliation was known only in the U.S. intelligence community, or the global intelligence community (including both friendly and hostile foreign intelligence services), IIPA's legislative history makes clear that this is insufficient to merit protected status. Merely because the U.S. has not publicly acknowledged or revealed the relationship does not by itself satisfy the "affirmative measures" required for liability under the IIPA. ...'

Mark Memmott in USA Today noted

In The Politics of Truth, former ambassador Joseph Wilson writes that he and his future wife both returned from overseas assignments in June 1997. Neither spouse, a reading of the book indicates, was again stationed overseas. They appear to have remained in Washington, D.C., where they married and became parents of twins.

Six years later, in July 2003, the name of the CIA officer — Valerie Plame — was revealed by columnist Robert Novak.

The column's date is important because the law against unmasking the identities of U.S. spies says a 'covert agent' must have been on an overseas assignment 'within the last five years.' The assignment also must be long—term, not a short trip or temporary post, two experts on the law say. Wilson's book makes numerous references to the couple's life in Washington over the six years up to July 2003. 

The failure to meet this predicate should have ended the investigation quickly, as it was readily apparent that Plame was not covered under terms of the only applicable statute. But there are yet other predicates Fitzgerald must establish:

(2) That the agency took adequate steps to protect the secrecy of her classification.

Can Libby provide probative evidence on this? No. The public record suggests to most of us that the steps taken by the CIA were inadequate. But the most detailed evidence has to be in the hands of Fitzgerald's client, the CIA. Fitzgerald argues he never sought that because it is not material.

Rivkin and Casey write:

...whatever value Ms. Plame may have had as a viable covert agent was surely eliminated years before the alleged "leak," when she married a U.S. diplomat who himself published her name in his biographical materials. The fact that her husband chose to become a public figure in a debate about the very discipline she pursued at the CIA —— WMDs —— eliminated whatever shreds of anonymity that remained.

When the CIA allowed this information to appear, and allowed Valerie Plame to continue her work, it did the precise opposite of protecting the secrecy of her classification. Once again, this should have been obvious to the Prosecution very early in its investigation.

Former Prosecutor and criminal defense counsel Joseph DiGenova thinks  if there was any misleading done in this matter it was by the CIA, who misled the Prosecutor on this issue. But that is a problem between the Prosecutor and his client (the CIA), and certainly not attributable to Libby.

DiGenova says 

"The only way an investigation can begin is if the agency swears — swears — that it took every conceivable step to protect this person's identity." 

For example, the CIA had to answer 11 specific questions about what steps it took to protect the identity of a covert agent. But DiGenova questions whether some of the information the CIA provided the Justice Department on those 11 questions "was materially false." 

We don't know whether Fitzgerald never received answers from the CIA to those questions or found out the answers he had received were false. But neither scaenario provides a legal excuse for proceeding with the case.

A third predicate must also be met for there to be a violation of the IIPA:

(3) That Libby deliberately outed Plame to cause injury to our national security and, in fact did so.

Libby can offer some evidence as to whether he disclosed her name and his motivation to do so. But, again, the critical evidence — whether there was any harm to national security by disclosure of her identity — is in the hands of Fitzgerald's' client, the CIA. And the Special Prosecutor has said he never sought that evidence since it was not material. Robert Woodward has publicly stated that an informal assessment by the agency showed there was no harm. Given the fact that she had twice before been outed—once by Ames and a second time by the agency itself—it would, in any event, be hard to persuade anyone there had been harm by a third outing.

In contrast to his present claim that evidence of harm to national security is not material to the case, this is what the Prosecutor said in October at the press conference announcing the indictment: 

'This is a very serious matter and compromising national security information is a very serious matter. But the need to get to the bottom of what happened and whether national security was compromised by inadvertence, by recklessness, by maliciousness is extremely important. We need to know the truth. And anyone who would go into a grand jury and lie, obstruct and impede the investigation has committed a serious crime.
 
QUESTION: Mr. Fitzgerald, you've said that there was damage done to all of us, damage to the entire nation. Can you be any more specific about what kind of damage you're talking about?

FITZGERALD: The short answer is no. But I can just say this: I'm not going to comment on things beyond what's said in the indictment.

But after declining to state more, he launches into a manipulative use of CIA agents as objects of threats — implying but not stating that national security was at risk.

FITZGERALD: I can say that for the people who work at the CIA and work at other places, they have to expect that when they do their jobs that classified information will be protected. And they have to expect that when they do their jobs, that information about whether or not they are affiliated with the CIA will be protected.

And they run a risk when they work for the CIA that something bad could happen to them, but they have to make sure that they don't run the risk that something bad is going to happen to them from something done by their own fellow government employees.

But getting to the specifics of the damage, I won't.

The alleged harm to national security and our brave covert operatives has vanished as a consideration. Like a stage magician's act, "now you see it; now you don't."

Obstruction of Justice

The obstruction statute, unlike the false statement and perjury charges, does not on its face require a predicate of materiality, and therefore might seem to pose a greater hurdle for the defense. Nevertheless, I think that, too, must fall, because:

(a) the Prosecutor never did establish that the requisite predicates for proceeding with the IIPA investigation were met, and therefore the investigation should never have proceeded;

(b) on the facts those predicates could never be met;

(c) since there was no other applicable statute, there could not be a violation of law and;

(d) in that case, there was nothing Libby could have obstructed. Thus, the obstruction count, like the false statement and perjury counts should be dismissed.

Logically one cannot obstruct an investigation as to whether the law has been violated when almost all that evidence is uniquely in the hands of the moving party and that party's counsel cannot establish those predicates, indeed, admits he has failed to even seek the predicate evidence of a violation.

The obstruction Statute largely deals with overt acts — bribing witnesses, intimidating witnesses or jurors — not testimony .But surely you cannot prosecute someone for obstructing an investigation which never had a legal basis for proceeding in the first place.

The there is the small matter of motive. If no underlying crime is alleged, there cannot logically be a motive to obstruct justice.

We simply do not—and should not — give prosecutors an open hand to inquire where they will without a rational basis for believing there was an underlying crime. To do otherwise exposes every one of us to the potential nightmare of a prosecutor grilling us on the minute details of our daily life in years past, and indicting us for any failure of our memory to agree with the memories of others or documentary records. All with no reasonable suspicion that we have violated any law.

The most recent Supreme Court case on a similar charge of obstruction (18 U.S.C. Sec. 1512(b)(2)(A)and (B)), supports my assertion that in the absence of an underlying recognizable offense, the obstruction charge can simply not be used to troll for a means to punish someone who clearly never committed a crime.

The case in question involved a major accounting firm, Arthur Andersen, which had done work for Enron. In the media swirl surrounding Enron's collapse, a prosecutor initiated a criminal charge against the company because it had destroyed records which may have been relevant. The destruction had been part of its normal document retention policy. The Prosecutor secured a conviction against the company. The Fifth Circuit Court of Appeals affirmed it. The U.S. Supreme Court reversed and remanded the case (unfortunately too late to save the company or the jobs of its 39,000 employees).

A longer excerpt from Justice Rehnquist's opinion appears in footnote [2] but note here that he wrote, with regard to document destruction as obstruction of justice, that

A 'knowingly ... corrup[t] persuade  [r]' cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material.

By analogy to the case of Libby, if there is no official proceeding applying the IIPA to be obstructed, there should be no obstruction of justice charges possible. If we do not read the requirement of materiality into the obstruction statute we encourage prosecutorial overreach and make otherwise innocent conduct criminal. Nor can one use it, as the Prosecutor attempts to do here, to punish by an obstruction count testimony he cannot successfully prosecute for lack of materiality under the false statement and perjury counts.

Who's Throwing Sand in the Eyes?

In his press conference, which was a masterful demonstration of misdirection, Patrick Fitzgerald, the Special Prosecutor, indicated among other things that he charged Scooter Libby because he'd thrown 'sand' in the prosecution's face and prevented it from investigating the Plame matter.

And what we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He's trying to figure what happened and somebody blocked their view.

In fact, I think it apparent that it is Fitzgerald who tried to throw sand in our eyes.

I doubt that he will be able to pull off this trick a second time in Court. Simply, Fitzgerald could not find a violation of the only relevant law because the necessary predicates for its application did not exist. And, even assuming for the sake of argument that the factual assertions he made in the indictment of Libby are true, they could not have impeded his inquiry, for it was always about conduct manifestly not covered by any federal criminal statute.

How can someone impede the due process of justice when the inquiry itself is a make—believe one? That is the key question in the Libby case. For it is clear that there was only one statute available to deal with the Plame situation; the facts of the case never fit it; and it was an error to proceed with a full bore investigation and grand jury when the prosecution knew or—with prudent inquiry— should have known that.

Near the end of his press conference, Fitzgerald said:

But I think what we see here today, when a vice president's chief of staff is charged with perjury and obstruction of justice, it does show the world that this is a country that takes its law seriously; that all citizens are bound by the law.

But what we need to also show the world is that we can also apply the same safeguards to all our citizens, including high officials. Much as they must be bound by the law, they must follow the same rules.

I contend the Prosecutor himself did not take the law seriously and did not apply the same safeguards to high officials that we apply to everyone else. He too, should be bound by the law and the case dismissed because he manifestly exceeded those bounds and then threw sand in our eyes to hide what he had done.

But in the meantime legal expenses consume millions and a man's energies have been diverted away from productive activities. Justice requires that the case be dropped.  In the end, my guess is that the CIA will decline to release data required by discovery, and the prosecution will be dropped. [3] I say this because I believe the Wilson Gambit was part of the CIA war on Bush; the referral of Plame's outing was a phony one; the Agency either never answered the 11 questions DiGenova says the law requires or lied when it did so; and the Agency is too fragile at this point to open itself up for an honest inquiry into this operation.

Clarice Feldman is a lawyer in Washington, DC and a frequent contributor to The American Thinker

Footnotes:

[1] The language of the IIPA:

§ 421. Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources.

(a) Disclosure of information by persons having or having had access to classified information that identifies covert agent

Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than ten years, or both.

(b) Disclosure of information by persons who learn identity of covert agents as result of having access to classified information

Whoever, as a result of having authorized access to classified information, learns the identify of a covert agent and intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than five years, or both.

(c) Disclosure of information by persons in course of pattern of activities intended to identify and expose covert agents

Whoever, in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States, discloses any information that identifies an individual as a covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such individual and that the United States is taking affirmative measures to conceal such individual's classified intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than three years, or both

[2] Excerpt from the Rehnquist Opinion:

The outer limits of this element need not be explored here because the jury instructions at issue simply failed to convey the requisite consciousness of wrongdoing. Indeed, it is striking how little culpability the instructions required. For example, the jury was told that, 'even if [petitioner] honestly and sincerely believed that its conduct was lawful, you may find [petitioner] guilty.' App. JA—213. The instructions also diluted the meaning of 'corruptly' so that it covered innocent conduct. Id., at JA—212.

The parties vigorously disputed how the jury would be instructed on 'corruptly.' The District Court based its instruction on the definition of that term found in the Fifth Circuit Pattern Jury Instruction for §1503. This pattern instruction defined 'corruptly' as ''knowingly and dishonestly, with the specific intent to subvert or undermine the integrity' ' of a proceeding. Brief for Petitioner 3, n. 3 (emphasis deleted). The Government, however, insisted on excluding 'dishonestly' and adding the term 'impede' to the phrase 'subvert or undermine.' Ibid. (internal quotation marks omitted). The District Court agreed over petitioner's objections, and the jury was told to convict if it found petitioner intended to 'subvert, undermine, or impede' governmental factfinding by suggesting to its employees that they enforce the document retention policy. App. JA—212.

These changes were significant. No longer was any type of 'dishonest[y]' necessary to a finding of guilt, and it was enough for petitioner to have simply 'impede[d]' the Government's fact—finding ability. As the Government conceded at oral argument, ' 'impede' ' has broader connotations than ' 'subvert' ' or even ' 'undermine,' ' see Tr. of Oral Arg. 38, and many of these connotations do not incorporate any 'corrupt[ness]' at all. The dictionary defines 'impede' as 'to interfere with or get in the way of the progress of' or 'hold up' or 'detract from.' Webster's 3d 1132. By definition, anyone who innocently persuades another to withhold information from the Government 'get[s] in the way of the progress of' the Government. With regard to such innocent conduct, the 'corruptly' instructions did no limiting work whatsoever.

The instructions also were infirm for another reason. They led the jury to believe that it did not have to find any nexus between the 'persuasion]' to destroy documents and any particular proceeding.10 In resisting any type of nexus element, the Government relies heavily on §1512(e)(1), which states that an official proceeding 'need not be pending or about to be instituted at the time of the offense.' It is, however, one thing to say that a proceeding 'need not be pending or about to be instituted at the time of the offense,' and quite another to say a proceeding need not even be foreseen. A 'knowingly ... corrup[t] persuade[r]' cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material.

We faced a similar situation in Aguilar, supra. Respondent Aguilar lied to a Federal Bureau of Investigation agent in the course of an investigation and was convicted of ' 'corruptly endeavor[ing] to influence, obstruct, and impede [a] ... grand jury investigation' ' under §1503. 515 U.S., at 599. All the Government had shown was that Aguilar had uttered false statements to an investigating agent 'who might or might not testify before a grand jury.' Id., at 600. We held that §1503 required something more—specifically, a 'nexus' between the obstructive act and the proceeding. Id., at 599—600. '[I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding,' we explained, 'he lacks the requisite intent to obstruct.' Id., at 599.

For these reasons, the jury instructions here were flawed in important respects. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

[3] One item, however, does not relate to this argument particularly but rather to the demonizing of the defendant which has been apparent since the press conference announcing the indictment. Libby's counsel points out the absurdity of the charge, clearly floated by the special prosecutor, that in seeking information relevant to his defense Libby was trying to 'greymail' the government into choosing between  revealing sensitive classified material or dropping the prosecution:

As the defense observes in its latest brief (page 5)

First, the government's 'greymail' accusation is not only false, but insulting. Greymail is not possible under CIPA. The government itself acknowledges that 'Congress passed the Classified Information Procedures Act statute ('CIPA') to deal with [greymail].'(Gov't Br. at 15.) The prosecution is well aware that the use, relevance and admissibility of any classified materials at trial will be addressed at CIPA hearings in this case. In addition, as the government knows, just like the other highly sensitive documents that have already been provided to Mr. Libby, any additional classified document productions would be filed in the defense SCIF pursuant to the CIPA protective order in this case. Accordingly, there is absolutely no foundation for the government's claim that the discovery Mr. Libby seeks 'collide[s] directly with the need to protect sensitive national security information.'

(Id.) Denying Mr. Libby's requests because they pertain to 'extraordinarily' sensitive' documents would have the effect of penalizing Mr. Libby for serving in a position that required him to address urgent national security matters every day.