Libby Indictment A Political Dud

October 31, 2005

The grand jury indictment against Scooter Libby puts Mr. Libby in serious legal jeopardy, but does little to put the Bush administration or the GOP in political jeopardy.

I’ve read the indictment, the relevant federal statutes and certain cases construing various elements of those statutes. Here’s my nutshell report.

The indictment alleges that Valerie Plame was a CIA agent whose very affiliation with the CIA was classified information. Mr. Libby, as an aide to Vice President Dick Cheney, has clearance for classified information.

In such capacity, Libby allegedly learned of Plame’s affiliation with the CIA and passed that information on to reporters who have no security clearance and thus are not entitled to receive it.

Libby allegedly lied to FBI investigators and the grand jury about the unauthorized disclosure, saying he’d first learned of the information from the reporters, instead of the other way around.

Based on these allegations, the grand jury indicted Libby for obstructing justice, perjury and false statements. It did not indict him for the “underlying crime” of leaking the classified information, under either the Identities Protection Act of 1982 or the Espionage Act of 1917.

Throughout, almost all legal commentators have agreed that the Identities Protection Act would be very difficult to prove. But they would have been more accurate had they said, “It is very difficult to violate.”

To have violated that law, Libby must have known that Plame was a covert agent and intentionally disclosed that information (SET ITAL) and (END ITAL), Plame must have served abroad within five years of the disclosure. Whether or not Plame was actually covert, which is very doubtful, it’s highly unlikely that Libby knew she was. Even if Mr. Fitzgerald could have overcome that enormous hurdle, it’s inconceivable that he could have demonstrated she served abroad within five years, since she has reportedly been stateside since 1997.

But what about the 1917 Espionage Act? The statute would require Fitzgerald to prove that Libby 1) acquired classified information in his official capacity, 2) willfully communicated that information to a person not entitled to receive it and 3) had reason to believe it could be used to the injury of the United States or the advantage of any foreign nation.

Based on his press conference, Fitzgerald seems convinced that Libby willfully leaked “classified” information (Plame’s affiliation with the CIA) to reporters not entitled to receive it. But he couldn’t be sure whether Libby had the criminal intent the statute requires.

Notice Fitzgerald didn’t say he would have difficulty proving Libby’s criminal intent but that he didn’t (SET ITAL) know (END ITAL) what Libby’s intent was. That’s a significant distinction because it’s the difference between Libby having committed a crime that is difficult to prove, and not having committed it at all.

Also note that the United States Supreme Court held that in order to be guilty of violating the Espionage Act, the accused must not only have intent or reason to believe the leaked information could be used to injure the United States or benefit a foreign country. He must also have acted in “bad faith.”

So, popular legal opinion aside, it seems it would have been quite difficult for Fitzgerald to make a case against Libby under the Espionage Act as well. And this is where the legal becomes relevant to the political.

Democrats have been saying from the outset that Bush evildoers conspired to disclose Plame’s “covert” identity to exact revenge on her husband Joe Wilson for undermining their claim that Saddam Hussein had tried to acquire uranium “yellowcake” from Niger.

But no amount of posturing and yelling will make true their false charge that the Bush administration “outed” Valerie Plame to hurt its political enemies, to the detriment of national security. It’s not just unprovable; it’s false. Democrats are going to have come to come up with a better plan to criminalize the war.

Nevertheless, under no circumstances will I minimize the alleged crimes of obstruction of justice, perjury and false statements, even if the “underlying crimes” were not committed. But I have difficulty understanding what motive Mr. Libby, reputed to be of stellar character, would have had to commit those crimes.

At the end of the day, Democrats are left with the Pyrrhic victory of a Libby indictment on the legal front, but absolutely nothing on the political front. Just a short week ago, they thought they had stumbled into a twofold political bonanza with the Miers withdrawal and the Plame indictment about to drop.

But the indictment — politically speaking — has fizzled, and President Bush has just belted a grand slam with his nomination of Judge Samuel Alito. Things are looking up again.