Today at Tigerhawk, National Review's Andrew McCarthy offers an explanation for Armitage's behavior:
First, while it now seems abundantly clear that the leak of Plame's identity did not violate the covert agent identity protection act (50 U.S.C. 421 et seq.), this was a subject of considerable debate for the first several months after the story broke. It was not obvious back then.
Second, it is still not crystal clear to this day that the leak could not have been charged under the espionage act (18 U.S.C. 793(d)). This statute has been used in the past to prosecute leaks of government records (as you can see, there's no requirement under the statute that the record even be classified). Again, I think it was absolutely the right call not to test the parameters of this statute in connection with a leak that really did not harm national security, but it is anything but obvious to me that its employment by a prosecutor would be wrong as a matter of law. Here, again, Fitzgerald made a policy judgment not to enforce this statute as if it were a state—secrets law ... even though, literally, it may well apply. (Embezzlement, by the way, is a felony punishable by up to ten years in prison.) [snip]
Third, although there has likewise been very little discussion of this (it is mentioned in Gabe Schoenfeld's Commentary piece which analyzes whether the New York Times should be prosecuted), there is another theory of guilt here. The federal embezzlement of public property statute (18 U.S.C. 641) targets, among others, "Whoever embezzles ... or knowingly converts to his use or the use of another, or without authority ... conveys or disposes of any record ... or thing of value of the United States or of any department or agency thereof[.]" [snip]
Fourth, any competent criminal defense lawyer advising Armitage and others at the time these events occurred would have had to take note of the political climate (Democrats and the media calling for a prosecution) as well as a rule—of—thumb which is followed by many, but happily not all, prosecutors: namely, when all the acts necessary for the commission of a crime have occurred, and guilt turns on state—of—mind (i.e., did the defendant act with criminal purpose?), the safest thing for a prosecutor to do is indict and let the jury do the mind—reading part....
McCarthy has always been a staunch defender of Fitzgerald, and while this was written ostensibly to indicate Armitage's dilemna, he certainly tries to make the decision by Fitzgerald to proceed further more measured than it was. Victoria Toensing had been screaming from the outset the continued investigation was idiotic and Fitzgerald was just trying to find a "creative" way around the clear language and precedent. Indeed, the Department of Justice had twice refused to proceed.
As to the defense of counsel suggestion, up until very recently Armitage had publicly stated that he was so unafraid of being prosecuted he'd not engaged counsel.
In any event, the "defense" of Armitage is more base if we consider it in the context of another crime.
Let's assume that in the evening on a dark street you were driving, heard a thump, imagined it was a tree branch and continued, and then sat on your hands while the newspapers indicated someone else was being prosecuted for a hit and run which occurred at that very spot at that very time on that very night.
I take it that I need not detail the history of hit and run legislation to persuade you that not coming forward with what you knew was not a moral course of action.And if you had gone in late to confess to the prosecutor and he told you not to tell that it was you as he proceeded with the criminal prosecution against another, it would not be a bit more moral to keep quiet about your role.
Elsewhere, John Burtis, an ex—cop, offers another view of loyalty——one I do agree with:
The idea that a Secretary of State, fourth in line to assume the office of the Presidency in case of a national emergency, should choose to openly allow an unprecedented three year attack on the Presidency, utterly diminishes Colin Powell in stature, character, and in the professed love of his country, to say nothing of totally abrogating his oath of office.
As far as I can see it, with as forgiving a soul in the White House as George Bush — who seems to have put so many obvious prosecutions on the back burner, including the likes of a Mary McCarthy or a dastardly Sandy Berger, out of a form of compassionate conservatism — it seems that Colin Powell simply stabbed the President of the United States in the back because he could, because he would get away with it, because he would not be held to task for his grave misdeeds by a man known to turn the other cheek, and because an acceptable form of loyalty in American government to the United States of America, above all else, simply no longer exists.
With Colin Powell, as with Mr. Armitage, loyalty has finally gone the way of the Model—T.
Clarice Feldman is an attorney in Washington, DC, who has covered the Plame/Wilson scandal extensively for The American Thinker.