Asymmetrical Information

Jane - Welcome back!

I agree that perjury is a real crime. If Libby deliberately lied, he should be punished.

What interests me more is your thoughts on the propriety of a prosecutor, in effect, threatening a witness with prosecution when the persecutor knows that no crime was committed. The prosecutor might think such threats create an incentive for witnesses to cooperate; they also motivate witnesses to lie.

In this case, the special counsel had to have known early on that Ms. Plame was not covert and that no one would be charged with outing her. However, it appears he kept that conclusion to himself and allowed Libby and others to fear that he might charge them with outing Plame. Even if Libby believed he could easily win at trial, the mere indictment would have been devastating to him and to the Administration. The pressure to avoid such an indictment must have been immense. Such pressure is a known cause of memory problems. (Check just about any text on the subject.) We don't allow government to entice people to commit a crime. (We call it entrapment.) Should we allow prosecutors to pressure people into committing perjury?

Actually, it is in the law. The perjury statute states specifically that the lie must be material to the investigation.

Which is why Bill got off--his lying under oath was deemed not material to the evidence being adduced at trial. My concern about Bill's lying was one that touches on the separation of powers as a check on too much power in any one branch of government. When the head of one branch lies under oath in a proceeding conducted by another branch, that seems to me to go beyond "mere" lying under oath.

I agree that perjury is perjury. However, I keep thinking that Libby would have escaped if he had simply refused to testify in the first place.
In future, look to see administrations refusing to cooperate with such investigations unless each official can have a law staff present at all depositions, paid for BY THE TAXPAYER that will be there to help him ensure that he doesn't contradict himself.

gazzer

Exactly. Lying creates a real problem for investigators; they might not even be able to determine correctly whether or not there was an actual crime besides lying to the investigators. But prosecutions like the Martha Stewart case and (I suspect) this one do not create any incentive to tell the truth to investigators. Instead, they create an incentive to say nothing at all, for fear that either you'll accidentally contradict yourself when being questioned again and again over two or three years, or that there will be some discrepancy between your story and other peoples' and the prosecutor will decide to prosecute you instead of them. Then when no one's talking at all, investigations will not just be impeded, they will be stopped cold - no one will be going to jail for perjury, but those who committed far more serious crimes won't go to jail either.

"If a politician lies in the forest, and nobody hears it, is he still a waste of a good law degree?" That is wrong on so many levels. Is there such a thing as a "good law degree"? Are there any politicians that aren't a waste of, umm..., everything?

So now I don't feel so left out :)

Welcome back! Those cookies sound delicious.

Do you have a good recipe for peanut butter cookies? Just curious.

When the FBI comes knocking, the only sane thing to do is to provide your attorney's name, and inform the agents that all inquiries are to be made through him or her. The only sane thing for your attorney to do is to inform the Bureau that the client will make no statement prior to a subpeona being issued, and then the only statement will be to take the fifth. At that time, if the prosecutor chooses to provide immunity, the client should be coached as to how to couch all answers in such a manner as to avoid accusations of having answered falsely or in a contradictory manner.

That'll really help investigations proceed in a timely manner.

Of course, in Libby's case, he could not refuse to answer the questions -- the President had ordered him to cooperate. If he'd taken the 5th, he would have been fired. If he'd have taken the 5th, the media would have considered that proof the administration had intentionally outed a covert agent to pay back a critic of its policy. Libby may have been willing to be fired, but by all accounts he is a true believer and would not have wanted to damage the administration. None of this justifies lying, but it does put into the question the merits of pursuing an investigation (under penalties of perjury) when the only crime that could be uncovered by the investigation is the crime of lying to the investigator.

On the minor topic of this site and nannyware, I am able to access the site, but not the comments, over my current client's network. The comments come up as Forbidden Subject: Dating and Romance. You may take that as a compliment if you wish.

I made those cookies for years. Lots of variations as well. Add chocolate chips, nuts of various types, yeah buddy. That's the bomb of cookie recipes. Thanks for reminding me of it. Wonder what I have in the larder?

Try them with butterscotch chips if you can find them. My dad's favorite. Like a bowl of buttery, brown-sugary oatmeal, crystallized. Mmmm...

If I recall, many of us Dems were pretty disgusted at Clinton lying, but we understood why. Starr seemed to be witch-hunting Clinton and gee wiz, most of us, if asked about forbidden but consentual sex would lie about it to just about anyone. Not saying the purjury was right, just saying I understood on an emotional level.

In addition, if I recall, the prosecuter who replaced Starr told Clinton exactly what he had to do if he wanted to avoid prosecution after his final day in office and he did exactly what the prosecuter requested, admitted the purjury on his last day in office. He then lost his license to practice law for five years. That's pretty serious. State bar associations usually don't do things like that. The prosecuter felt that, on top of Clinton's impeachment and public humiliation, was enough. I heard this last night when the prosecuter was the guest on The Daily Show so it happens to be fresh in my mind.

Finally, I would like to point out that Libby did not get indicted on blowing a CIA agent's cover NOT BECAUSE HE DID NOT DO THAT, but only because Fitzgerald couldn't prove the Mens Rea element of the crime. Fitzgerald said as much when he laid out what Libby was indicted for. It had nothing to do with whether some people didn't think Plame was an active, covert, agent. She had a cover, and from virtually everything I have read there is evidence to believe that some of her operations may have been jepordized. Even if it is only a possibility (and one which I doubt we will ever know for a fact) it is a serious problem, especially from an administration that was partially re-elected on the basis of security issues.

Finally, I think I need to give you my receipe for Ranger Cookies. They are unbelievably good and they don't have any icky coconut in them. bleck.

Kate - Like you may have done, I listened carefully to Fitzgerald's press conference and read the indictment. While he said she had a cover, he did not say she was covert (for purposes of the law in question) and refused to say she was covert in response to questioning. This, combined with detailed discussions of the law by attorneys who claim to be expert in the area in Thursday's and Friday's WSJ, convince me it was clear from the beginning that Plame was not covert. The CIA clearly was NOT trying to maintain her cover (else the CIA would not have let Wilson go on the Niger trip, would have required an NDA from him if he did go, would have prevented his publishing his editorial in the NYT, and would have tried to prevent Novak from publishing her name). The government must be taking "affirmative measures" to maintain an agent's covert status for the agent's outing to be a violation of the law. Fitzgerald MUST have known that this element was missing and that no crime could have been committed.

Which is why he explained in the press conference his job was not to investigate a statute but to, first gather all the facts, and then to determine if a crime was committed. This was an attempt to forestall complaints that he should have cut short his investigation as soon as it started because it was clear the statute in question could NOT have been violated. Victoria Toensing, who wrote the text of the law in question, makes it clear in Thursday's WSJ that the 1982 Intelligence Identities Protection Act provides the exclusive remedies the government has when an agent is outed. Why? The 1982 law provides a high hurdle before disclosing a covert agent's identity is a crime. Having a far lower hurdle for the criminalization of the outing of a non-covert agent simply makes no sense.

Does any of this mean Fitzgerald should have stopped his investigation? No. There may have been good reasons for looking into the leak -- just as there are for looking into the leaks that were the basis of the Wash. Post's revelation of the CIA's secret prisons for terrorists. I still think it's dirty pool, at best, for Fitzgerald to have maintained that a prosecution for outing Plame was on the line when questioning Libby. By hanging the possibility of an indictment under the Intelligence Identities Protection Act over Libby's head, Fitzgerald created the pressure that led to the alleged perjury. That's not fair.

Hi Jane! Long time no see. I was cruising the net looking for directories of blogs to send readers to (from a newspaper column I write locally) and came across a familiar name! So while I'm here, I'll just clip that cookie recipe, thank you very much. Hope you are well, your site is great. Best...Fred of Fragments

I admit that I'm going to jump the gun somewhat, and assume that Libby will be convicted of lying to either the grand jury or the FBI. If Plame wasn't covert, and it was clear that she wasn't covert, and therefore clear that revealing that she worked for the CIA couldn't possibly be a crime, WHY DID LIBBY LIE ABOUT WHAT HE TOLD REPORTERS? Why not just say "Sure, I 'outed' Valerie. What's the big deal? It's not a crime." I'm still waiting to hear an answer that (a) doesn't make the Administration look quite bad and (b) passes the giggle test.

If they really believed it wasn't a crime, the proper response to "threats" from the prosecutor was dignified outrage and take it to court. I think the Administration knew they'd done something sleazy (whether technically illegal or not), they were afraid that the public would regard it as sleazy, and they were at a point where they really needed to be perceived as straight shooters. So they lied.

Kate,

Bill didn't lie to Starr; he lied under oath to the judge in federal court.

And as for the state bar association, their role is not "punishment", etc., but the decision of whether or not he was capable of maintaining the ethical standards required of a practicing attorney. Stated simply, was he fit to practice law? Their decision had nothing to do with punishment and everything to do with maintaining the high ethical standards of the legal profession.

WHY DID LIBBY LIE ABOUT WHAT HE TOLD REPORTERS?

We don't know that he did, do we? So far as I'm aware it is still his word versus that of the reporters. Neither honest reporters nor honest political hacks are especially common.

But has for why he might have lied -- because the press has already decided (a) that Plame was covert and (b) that outing her was a crime. That's why they are still pushing the "Bush's folks outed her to punish Wilson" story after all this time, even though no evidence of any kind has been found to support it, and even though most of the details of Wilson's original accusation have been revealed as lies (e.g. his claim that his wife had nothing to do with his being sent, and his claim that the VP sent him).

If Libby lied, he probably did so to avoid being crucified in the media.

Bill didn't lie to Starr; he lied under oath to the judge in federal court

He did both. That's why he was impeached separately for lying to Starr and for lying in federal court (as well as for obstruction of justice and abuse of power).

When Starr began investigating Clinton's perjury in the Jones case, Clinton against lied about the nature of his relationship with Lewinsky. That was a the second instance of perjury, and the one that can't be weaselled out of by saying "oh, it wasn't material" -- it was most definitely material to Starr's investigation of possible perjury in the Jones case.

Fitzgerald didn't say she was covert, but he didn't say she wasn't either. He's being coy. It might be that she was covert, but he's not saying because he wants to lull wrongdoers (in his view) into a false sense of security. It might be that she wasn't covert, but that he wants to preserve the threat of prosecution.

Or it might be that to present evidence of her covert status would entail further damage to classified information and field ops, so he is restraining himself as long as possible. We just don't know.

Rex,

I was neither stating my approval or disapproval of Bill's not being prosecuted. I was simply repeating which I heard the prosecuter who took over for Starr tell Jon Stewart on the evening previous to my posting.

In the meantime I would like to note that the Bar Association of a state does, in fact, dole out punishments. They may not be legal punishments, but they are, in fact, punishments for unethical and illegal behavior.

y'all did so think that sexual harassment was a real live crime right up to the minute Bill Clinton was accused of it.

Not so much. While the distinction between a crime and what is effectively a statutory tort (sexual harassment is a violation of civil rights law creating civil, rather than criminal liability) may not mean much to you, it's a pretty hefty distinction in law. Lying to keep personal secrets on a peripheral issue in a case that was later dismissed? Absolutely deplorable. Lying to a prosecutor to obstruct his investigation of a crime? Orders of magnitude more important.

You mean, kind of like committing a crime that may not turn out to have been a crime? It's not like Fitzgerald is saying he doesn't have enough information to know what happened because of Scooter's obstruction; we now know pretty much exactly what happened. What he seems to be saying is that while doing it may not have been illegal, lying about it sure was. Now, where have I heard this argument before?

Dan,

Clinton was impeached for lying to the grand jury but not in the civil suit.He was not impeached for lying to Starr. He was not impeached for abusing power. That article was rejected in a floor vote in the House, as was a separate article for lying in the Jones suit. The two articles that passed were for lying to the Grand Jury and for obstruction of justice.

It's not like Fitzgerald is saying he doesn't have enough information to know what happened because of Scooter's obstruction

That's exactly what Fizgerald said -- didn't you see the whole 'sand in the umpire's eyes' bit of his press conference?

In any case, the difference I'm pointing out is not the difference between perjury where the underlying wrongdoing is or is not eventually proven, but between perjury in a civil and in a criminal case. You brought up Clinton as a comparable case; the fact that you accidentally misidentified sexual harassment as a crime in doing so makes it clear that the comparison isn't terribly close.

"committing a crime that may not turn out to have been a crime?"

And yet, most all ambassador's wives are now in jeopardy.

The only criminals here are the Wilson's. What exactly was an incompetent like Joe Wilson doing in Niger and who recommended that he go there?
Yes indeed Valerie Plame is a real 007. Right.
This prosecuter spent two years and found nothing and invented this garbage not to lose face.
There needs to be a real house cleaning in the CIA as this appears to be an inside the CIA attempt to sandbag the Administration.
Speaking of lies and liars in the Senate, can Harry Reid explain his nepotism? When is John Kerry actually disclose his discharge papers and the true circumstances of his medals? Or Ted Kennedy tell us just how he managed to squash a DUI manslaughter rap.

Cubanbob,
Put down the crackpipe please!

You mean, kind of like committing a crime that may not turn out to have been a crime?

From what I've seen of Fitzgerald's statements and related documents, including the D.C. Circuit opinion in the subpoena case, I think it's more likely that he thinks an underlying crime was committed but isn't convinced he can prove it beyond a reasonable doubt. That's different from the Martha Stewart situation, and if that's what's going on, it's a lot harder to see it as prosecutorial overreach (insert obligatory reference to Al Capone and tax evasion). And with all due respect to David Walser's lawyering, I think it's worth waiting to see what evidence Fitzgerald puts on before concluding that a well-regarded U.S. Attorney has spent the last couple of years just playing games with perjury traps. The Administration spin may turn out to have merit, but at this point it appears that Rove's and Libby's lawyers are spending a lot of time with the press and Fitzgerald is keeping his mouth shut, which just might tend to distort the public's view of the legal situation.

Bert you are Evil and Stupid, in other words a democrat what else can explain your world view?

CubanBob, I see you have not taken my friend advice to stop abusing drugs and wasting your precious little gray matter. Learning how to spell and punctuate properly might not be a bad idea either. This isn't a thread to engage in a juvenile rant about every grievance you have against Democrats. It was about the Plame affair. Exactly where did I explain my world view?

A few years ago, my husband was approached by the CIA as a potential recruit. The recruiter was very specific about who my husband could tell, even about whether he was considering applying: me, his immediate family, my immediate family. That was all. No friends, no business associates, no cousins, aunts, or uncles. The application came in a large envelope from a seemingly bona-fide company that the recruiter told us to look for. My husband called the guy back to talk more about what kind of position he was in the running for; it was an overseas covert one, in which he would have had to have a regular job as his cover, then do his spooking on his off hours. The guy told him (this reminded me of that Brad Pitt movie) that if he got caught, there was to be nothing connecting him to the US government; he'd have to face whatever consequences there were on his own.

Since we have kids and like to talk to people, he decided not to apply. It had me pretty... spooked, I guess. I would have supported him if he would have wanted to go for it out of a patriotic impulse, but if he'd wanted to do it out of a sense of adventure, I would have kicked him to the curb - not with kids, mister.

This is the only time I've mentioned the whole incident outside my family. I don't think I could recollect the name of the cover company even under hypnosis, so it's probably not a big deal, but I still feel better, and more patriotic, not giving my name.

My point is, ISTM Valerie Plame of all people should have known what the rules were. The fact that she definitely used to be covert should have been enough for her to not mention her job at parties, and if ambassadors' wives are in danger now because she's "out," I have a hard time believing the fault doesn't lie first with her. All this is irrelevant to the perjury/obstruction charges, but if there's a discussion of ethics as opposed to legality, I think her name needs to be thrown into the hat.

I suppose it's also true that ambassadors' wives have always been in danger, for at least the similar reason that the *ambassadors* were assumed to be spies. Wasn't that the way it was in Moscow? Every diplomat was just assumed to be a covert agent too?

The fact that she definitely used to be covert should have been enough for her to not mention her job at parties,

What are you talking about? She was outed by Robert Novak in June 2003. There is no indication of any kind that she was talking about her job at parties before that.

C'mon Jane...we all know you were really playing Civ IV for the past 5 days straight like the rest of us...

There is plenty of commentary indicating that indeed her own husband outed her long before Robert Novak did - do some searching on the web. Fascinating stuff.

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