|
Paraphrasing: “If Rove catches
cold, Cheney gets pneumonia”. Karl Rove, “Official A” – a phrase reserved for use to avoid naming
someone still under investigation – may have his security clearance revoked,
and leaks to the press indicate White House insiders are discussing whether he
should resign to protect the 2nd term agenda. Libby pleads ‘not
guilty’, intends to clear his good name: trial not
expected to begin until late 2006 http://www.washingtonpost.com/wp-dyn/content/article/2005/11/03/AR2005110300234.html Note: Remember that ‘Scooter’ Libby was a well-known Washington DC attorney,
as well as a founding member of PNAC, Project for the New American Century,
which wrote a draft paper urging regime change in Iraq in the 90s, before he
returned to gov’t work with VP Cheney.
He was the attorney for Marc Rich, the man whose last minute pardon
created such a furor for Pres. Clinton.
So Libby is well-aware of presidential pardons and legal maneuvers. KwC Blue color highlights mine, underlines are the author’s. Links are
live. A Cheney-Libby Conspiracy, Or
Worse? Reading Between the Lines of
the Libby Indictment By John Dean. Findlaw, Friday, Nov. 04, 2005 In my last column, I tried to deflate expectations a bit about the
likely consequences of the work of Special Counsel Patrick Fitzgerald; to bring
them down to the realistic level at which he was likely to proceed. I warned,
for instance, that there might not be any indictments, and Fitzgerald might
close up shop as the last days of the grand jury's term elapsed. And I was
certain he would only indict if he had a patently clear case. Now, however, one
indictment has been issued -- naming Vice President Cheney's Chief of Staff
Lewis "Scooter" Libby as the defendant, and charging false
statements, perjury and obstruction of justice. If the indictment is to be
believed, the case against Libby is, indeed, a clear one. Having read the
indictment against Libby, I am inclined to believe more will be issued. In
fact, I will be stunned if no one else is indicted. Indeed, when one
studies the indictment, and carefully reads the transcript of
the press conference, it appears Libby's saga may be only Act Two in a three-act
play. And in my view, the person who should be tossing and turning at night, in
anticipation of the last act, is the Vice President of the United States,
Richard B. Cheney. The
Indictment: Invoking the Espionage Act Unnecessarily Typically, federal
criminal indictments are absolutely bare bones. Just enough to inform a
defendant of the charges against him. For example, the United States Attorney's Manual, which Fitzgerald said he was following,
notes that under the Sixth Amendment an accused must "be informed of the
nature and cause of the accusation." And Rule 7(c)(1) of the Federal Rules
of Criminal Procedure requires that, "The indictment . . . be a plain,
concise and definite written statement of the essential facts constituting the
offense charged." That is all. Federal prosecutors
excel at these "plain, concise and definite" statement indictments -
drawing on form books and institutional experience in drafting them. Thus, the
typical federal indictment is the quintessence of pith: as short and to the
point as the circumstances will permit. Again, Libby is
charged with having perjured himself, made false statements, and obstructed
justice by lying to FBI agents and the grand jury. A bare-bones indictment
would address only these alleged crimes. But this indictment went much further - delving into
a statute under which Libby is not charged. Count One, paragraph
1(b) is particularly revealing. Its first sentence establishes that Libby had
security clearances giving him access to classified information. Then 1(b) goes
on to state: "As
a person with such clearances, LIBBY was
obligated by applicable laws and regulations, including Title 18, United States
Code, Section 793, and Executive Order 12958 (as modified by Executive
Order13292), not to disclose classified information to persons not authorized
to receive such information, and otherwise to exercise proper care to safeguard
classified information against unauthorized disclosure." (The section also goes on to
stress that Libby executed, on January 23, 2001, an agreement indicating understanding
that he was receiving classified information, the disclosure of which could
bring penalties.) What is Title 18, United States Code,
Section 793
It's the Espionage Act -- a broad, longstanding part of the criminal code. The Espionage Act
criminalizes, among other things, the willful - or grossly negligent -- communication of national-defense related
information that "the possessor has reason to believe could be used to the
injury of the United States or to the advantage of any foreign nation." It
also criminalizes conspiring to violate this anti-disclosure provision But Libby isn't
charged with espionage. He's charged with lying to our government and thereby
obstructing justice. So what's going on? Why is Fitzgerald referencing the Espionage Act?
The press conference added some clarity on this point. Libby's
Obstruction Has Blocked An Espionage Act Charge The Special Counsel
was asked, "If Mr. Libby had testified truthfully, would he be being
charged in this crime today?" His response was more oblique than most. In answering, he
pointed out that "if national defense information which is involved
because [of Plame's] affiliation with the CIA, whether or not she was covert,
was classified, if that was intentionally transmitted, that would violate
the statute known as Section 793, which is the Espionage Act."
(Emphasis added). (As noted above, gross negligence would also suffice.) But, as Fitzgerald also
noted at his press conference, great care needs to be taken in applying the
Espionage Act: "So there are people," he said, "who argue that
you should never use that statute because it would become like the [British]
Official Secrets Act. I don't buy that theory, but I do know you should be very
careful in applying that law because there are a lot of interests that could be
implicated in making sure that you picked the right case to charge that
statute." His further example
was also revealing. "Let's not presume that Mr. Libby is guilty. But let's
assume, for the moment, that the allegations in the indictment are true. If
that is true, you cannot figure out the right judgment to make, whether or not
you should charge someone with a serious national security crime or walk
away from it or recommend any other course of action, if you don't know the
truth.... If he had told the truth, we would have made the judgment based
upon those facts...." (Emphases added.) Finally, he added.
"We have not charged him with [that] crime. I'm not making an allegation
that he violated [the Espionage Act]. What I'm simply saying is one of the
harms in obstruction is that you don't have a clear view of what should be done.
And that's why people ought to walk in, go into the grand jury, you're going to
take an oath, tell us the who, what, when, where and why -- straight."
(Emphasis added) In short, because
Libby has lied, and apparently stuck to his lie, Fitzgerald is unable to build a case against him or anyone
else under Section 793, a provision which he is willing to invoke, albeit with
care. And who
is most vulnerable under the Espionage Act? Dick Cheney - as I will explain. Libby
Is The Firewall Protecting Vice President Cheney The Libby indictment
asserts that "[o]n or about June 12, 2003 Libby was advised by the Vice
President of the United States that Wilson's wife worked at the Central
Intelligence Agency in the Counterproliferation Division. Libby understood that
the Vice President had learned this information from the CIA." In short, Cheney
provided the classified information to Libby - who then told the press. Anyone who works in national security matters knows
that the Counterproliferation Division is part of the Directorate of Operations
-- the covert side of the CIA, where most everything and everyone are
classified. According to
Fitzgerald, Libby admits he learned the information from Cheney at the time
specified in the indictment. But, according to Fitzgerald, Libby also
maintained - in speaking to both FBI agents and the grand jury - that Cheney's
disclosure played no role whatsoever in Libby's disclosure to the media. Or as Fitzgerald noted
at his press conference, Libby said, "he had learned from the vice
president earlier in June 2003 information about Wilson's wife, but he had
forgotten it, and that when he learned the information from [the reporter] Mr.
[Tim] Russert during this phone call he learned it as if it were new." So, in Fitzgerald's
words, Libby's story was that when Libby "passed the information on to
reporters Cooper and Miller late in the week, he passed it on thinking it was
just information he received from reporters; that he told reporters that, in
fact, he didn't even know if it were true. He was just passing gossip from one
reporter to another at the long end of a chain of phone calls." This story is, of
course, a lie, but it was a clever one on Libby's part. It protects Cheney
because it suggests that Cheney's disclosure to Libby was causally separate
from Libby's later, potentially Espionage-Act-violating disclosure to the
press. Thus, it also denies any possible conspiracy between Cheney and Libby. And it protects Libby
himself - by suggesting that since he believed he was getting information from
reporters, not indirectly from the CIA, he may not have had have the state of
mind necessary to violate the Espionage Act. Thus, from the outset of the investigation, Libby
has been Dick Cheney's firewall. And it appears that Fitzgerald is actively
trying to penetrate that firewall. What
Is Likely To Occur Next? It has been reported that Libby's attorney
tried to work out a plea deal.
But Fitzgerald insisted on jail time, so Libby refused to make a deal. It
appears that only Libby, in addition to Cheney, knows what Cheney knew, and when
he knew, and why he knew, and what he did with his knowledge. Fitzgerald has clearly
thrown a stacked
indictment
at Libby, laying it on him as heavy as the law and propriety permits. He has
taken one continuous false statement, out of several hours of interrogation,
and made it into a five-count indictment. It appears he is trying to flip Libby
- that is, to get him to testify against Cheney -- and not without good reason.
Cheney is the big fish in this case. Will Libby flip?
Unlikely. Neither Cheney nor Libby (I believe) will be so foolish as to crack a
deal. And Libby probably (and no doubt correctly) assumes that Cheney - a
former boss with whom he has a close relationship -- will (at the right time
and place) help Libby out, either with a pardon or financially, if necessary. Libby's goal, meanwhile, will be to stall
going to trial as long as possible, so as not to hurt Republicans' showing in
the 2006 elections. So if Libby can take
the heat for a time, he and his former boss (and friend) may get through this.
But should
Republicans lose control of the Senate (where they are blocking all oversight
of this administration), I predict Cheney will resign "for health
reasons." http://writ.news.findlaw.com/dean/20051104.html |
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