by hilzoy
From the AP:
“Former White House aide I. Lewis “Scooter” Libby was convicted Tuesday of obstruction, perjury and lying to the FBI in an investigation into the leak of a CIA operative’s identity.
Libby, the former chief of staff to Vice President Dick Cheney, was accused of lying and obstructing the investigation into the 2003 leak of CIA operative Valerie Plame’s identity to reporters.
He was acquitted of one count of lying to the FBI.”
I am still too busy to actually write anything. In the meantime, FDL is having problems, but emptywheel is writing at dKos, and Jeralyn Merritt is commenting at TalkLeft. Not much at either site yet, but that will surely change.
Good. People in the White House are not above the law. (For the record: I thought that Bill Clinton should have been prosecuted for perjury after he left the White House, precisely to make this point, but also to clarify that prosecution, not impeachment, is the penalty for perjury.)
It’s worth bearing in mind the larger issues as well: the Vice President’s office was prepared to go after Joseph Wilson with everything they had, including declassifying sensitive documents and exposing his wife.
And thanks to Patrick Fitzgerald for showing us how it’s done: you follow the law, you don’t grandstand, you don’t leak, you don’t worry about political points, you just do your job extremely well. Bravo.
hilzoy,
I felt the exact same way as you about the Clinton perjury. The punishment should have fit the crime. Even though I thought he was led into a perjury trap, the law was clear and *some* penalty needed to be paid, and should have been paid under state law, not federal — in the jurisdiction where the perjury was committed, under the guidance of the judge in the case.
But isn’t that what happened? I know there was no persecution, but I thought after the impeachment was over the judge in the case assessed a penalty — a fine of some sort, and a suspension of his law license in Arkansas for five years. Which implies that Clinton stipulated to the offense (negating the need for prosecution)?
(And I thought a fine and temporary — not permanent — suspension was just right. Firm enough to warrant the seriousness of perjury, lenient enough to recognize the circumstances surrounding).
Heh-heh. I said “persecution” instead of “prosecution”
Talk about a Freudian slip……
I don’t think a President can be tried for any crimes until after he is impeached. If you thought it was worthy of trial, it required impeachment (or wait until he is no longer president). Clinton lost his law license from a civil bar action, not a criminal case, if I recall correctly.
The Paula Jones case raised the question of whether a President can be sued while still in office. The Supreme Court said “Sure he can, it won’t distract him too much from his job.”
I think it’s still an open question whether a President can be tried for criminal matters before or after impeachment — they’re two different things. You don’t have to commit a specific crime to be impeached, for instance.
Clinton’s loss of a law license was directly a result of the Paula Jones case. Clinton made a false statement in a civil case. Even though the statement was deemed to be not germane, and even though the case was dismissed, the false statement was made. My recollection is the judge in that case recommended the penalty?
But without an admission of the false statement, I don’t know that they’d be able to assess a penalty without a trial or some sort of hearing…..
I found this on Answers.com:
On April 12, 1999, Wright found Clinton in contempt of court for “intentionally false” testimony in Jones v. Clinton, fined him $90,000, and referred the case to the Arkansas Supreme Court’s Committee on Professional Conduct, as Clinton still possessed a law license in Arkansas.[1]
The Arkansas Supreme Court suspended Clinton’s Arkansas law license in April 2000. On January 19, 2001, Clinton agreed to a five-year suspension and a $25,000 fine in order to avoid disbarment and to end the investigation of Independent Counsel Robert Ray (Starr’s successor). On October 1, 2001, Clinton’s U.S. Supreme Court law license was suspended, with 40 days to contest his disbarment. On November 9, 2001, the last day for Clinton to contest the disbarment, he opted to resign from the Supreme Court Bar, surrendering his license, rather than facing penalties related to disbarment.
I was musing about Clinton and Libby over at OTB.
Clinton arguably didn’t commit perjury, b/c his lies weren’t material.
Libby’s lies arguably weren’t material, b/c Armitage was Novak’s source.
However, were the feds obliged to close up shop once they’d fingered Armitage, or were they allowed to investigate whether there were separate leaks?
While it has not been tried, the consensus of opinion appears to be the President cannot be tried for criminal acts without impeachment, as it would prevent him from being able to execute his duty. There is a long discussion of it here:
http://www.usdoj.gov/olc/sitting_president.htm
the consensus of opinion appears to be the President cannot be tried for criminal acts without impeachment
That was Tocqueville’s understanding, IIRC — he used the example of the President’s being accused of high treason. Once removed from office, then he can be prosecuted.
I was just watching a bit of this on CNN. The jury member who was speaking said the jury thought that Libby, though guilty, really was the fall guy for higher-ups. This is hardly a surprising conclusion, but I think the explicit statement is significant.
I’m mostly OK on the false statements/perjury counts (mostly only because a lot of it seemed like he said she said). But can one of you legal types explain the obstruction count?
That is, what are you obstructing when there is no underlying crime (or at least none has been proven, no one has been charged or indicted, etc) and no ongoing investigation into an underlying crime?
It was successful obstruction.
Libby Verdict: Guilty on Four of Five Counts
[New items on top] Underlying case was a non-issue: “This case leaves much to be desired considering that the key detail that got the ball rolling – the supposed revelation about Valerie Plame’s CIA status, was a nonissue. No…
“what are you obstructing when there is no underlying crime (or at least none has been proven, no one has been charged or indicted, etc)”
The very fact that no underlying crime has been charged or proved shows that justice was successfully obstructed.
jrudkis and rea – I would hope that the legal standard is a little higher than that. The fact that a crime couldn’t be proven proves it was obstructed?
Not really. But justice works both ways, and his perjury could obstruct the finding that no crime was committed. It is the prevention of the justice system from working.
They were investigating a crime and he obstructed the investigation. The charge of obstruction could hardly be premised on what the investigation would have found if it hadn’t been obstructed, could it?
I have to admit to being of that Quixotic school of thought that says, absent some clear statutory or constitutional grant of immunity, the President is as subject to being sued or prosecuted, promptly, as Joe Sixpack. Equality under the law, and all that… The Constitution seems able to speak clearly on the subject of the (Remarkably limited…) immunity of elected officials in the case of Congress, and I take it’s silence in the case of the Executive as meaning there isn’t any.
OCSteve: The fact that a crime couldn’t be proven proves it was obstructed?
Not a lawyer. But we know a crime was committed: it’s a crime* to betray the covert identity of a CIA agent, and we know that senior members of the Bush administration discussed doing so and that – whatever Armitage did – at least one of them then did call the media in order to out Plame’s identity.
*I have seen many right-wingers argue the point that it doesn’t matter because you can’t be prosecuted for outing a covert agent if her overseas work was more that five years ago.
I have to say that this strikes me as being the worst kind of lawyerese. If you are a senior administration official, entrusted with information like the covert identity of CIA agents, it may or may not be a prosecutable offense for you to call half a dozen reporters and tell them “That woman Wilson’s married to? She works for the CIA” but it absolutely is a bloody crime.
About Clinton: that’s why I thought he should have been tried after he left the White House — so as not to impede the performance of his duties. I also think that in a sane world, he and the prosecutor would have done whatever had to be done to assure that this could happen — e.g., if the statute of limitations had to be waived, waive it.
About Libby: I don’t think obstruction depends on some other crime being successfully prosecuted, or even charged. If I lie to the FBI, or conceal evidence from them, or try to intimidate other witnesses, I am obstructing justice in the sense of impeding investigations into crimes, whether or not any are subsequently tried. Not to say this would be like saying: really, all you have to do is succeed in obstructing justice, and then even the obstruction charges will go away.
Also: no crimes were charged does not equal no crimes were committed, or no crimes were worth investigating, or even the prosecutor is not convinced that crimes occurred. It just means: the prosecutor does not believe that crimes can be proven in a court of law, given the available evidence. (E.g., if the police obtained evidence illegally, you couldn’t introduce it into court, and thus couldn’t use it to get a conviction. You might well believe that it’s really good evidence of a crime, and thus be convinced that a crime occurred, but know that w/o being able to introduce that evidence, you couldn’t prove it.)
Prosecutors: Give us that document
Me (flustered): Um..what document?
Prosecutors: That one. The one you’re holding.
Me (putting paper under chair): I don’t see any document.
Prosecutors (patiently pointing: That one. The one you’re sitting on.
Me (putting document through shredder): Gosh I don’t know what you’re talking about. I don’t have a document.
Prosecutors: Damn. Now we can’t prove whether or not a crime has been committed. But we’re charging you with obstruction of justice.
Me: Obstruction? But…but there’s no crime!!! That you can *prove*, anyway…..how can you charge me with obstruction when there’s no underlying crime?
“I also think that in a sane world, he and the prosecutor would have done whatever had to be done to assure that this could happen — e.g., if the statute of limitations had to be waived, waive it.”
In a sane world, guilty people don’t cooperate with prosecutors in that way. 😉
But we know a crime was committed: it’s a crime* to betray the covert identity of a CIA agent
Jes: That’s the piece that I am missing. I don’t recall that the covert status was ever proven. Covert has a specific meaning including that the CIA is taking active measures to protect the identity. I think Fitz stayed away from that altogether during the trial, and the defense argued that they (CIA) made no such efforts.
I don’t want to rehash the entire thing – I just think that you have to have a crime as a starting point in an investigation before someone can obstruct the investigation into who may have committed said crime.
Can anyone point me to where it was conclusively determined that a crime was committed?
The penultimate crime was the perjury. Committing perjury obstructed the investigation. If they had not convicted on the perjury count, they could not have convicted on the obstruction count.
just think that you have to have a crime as a starting point in an investigation before someone can obstruct the investigation into who may have committed said crime.
no. you need to have reasonable suspicion of the commission of a crime.
OCSteve: That’s the piece that I am missing. I don’t recall that the covert status was ever proven.
I don’t recall that non-covert status was ever proven, either. All we have to prove that Plame was covert is a statement from someone who trained with her in the CIA who said that she had to all appearances left it and was therefore covert, the knowledge that none of her neighbors knew she worked for the CIA, the fact that her employer of record was a company that on close examination turned out to look like (indeed, was admitted by the CIA to be, I think) a front company put up to shelter cover CIA agents, and the fact that the CIA and the Department of Justice both evidently took the crime of outing Plame’s identity extremely seriously. Which total of circumstancial evidence may not be enough to prove Plame was covert according to whatever strict definition exists in law. But, it certainly strongly suggests to me that indeed she was, especially as all we have to show she wasn’t is a bunch of journalists who claim – without evidence – that “everybody knew” she was a CIA employee.
Also, I gather that under US law, to find the person who outed Plame guilty, she not only had to have been overseas within the past five years, the person who outed her had to know she was covert. Which would likely be a hard thing to prove, especially if all the senior Bush administration figures who are implicated are all covering for each other.
OCSteve: I think you can also have investigations into whether a crime was committed. Suppose I was found dead tomorrow, in suspicious circumstances. No one would know whether I had been murdered — I might have been holding the knife in a peculiar way and then fainted on top of it, or have been cleaning my machine gun while staring into the barrel, or gotten Ambien confused with M&Ms, or something — but until you have an investigation, you can’t say for sure.
Suppose you (who in this imaginary world are a real, not virtual, friend of mine) take it upon yourself to conceal evidence, intimidate witnesses, lie to the investigators. At that point, you are obstructing justice, as I understand it.
OCSteve: The recommendation by the CIA to the Justice department for a criminal investigation should be proof enough that Plame’s status was undercover.
There is absolutely NO REASON the CIA would request a Justice Department investigation otherwise.
In any case, it really doesn’t matter. If you obstruct an investigation, you obstruct an investigation regardless of whether a crime happened.
Let me give you an example: My brother has a fight with a guy he knows. He hits the guy with a baseball bat. The guy dies that night at the hospital. I burn the baseball bat, because I don’t want my brother to go to jail.
In the course of the investigation, the police learn that I had the baseball bat and destroyed it — I have obstructed justice. Even if an autopsy determines that the man died of unrelated heart failure and not blunt force trauma, I still interfered in their investigation, even if no charges are ever brought to bear against my brother.
The reason obstruction is a crime is to deter people from interfering with an investigation — any part of an investigation, even the preliminary “Was a crime actually committed” part.
It doesn’t take a genius to understand why.
Patrick Fitzgerald said at the press conference today that he was 100% certain that Plame was covert. That’s all the verification I need.
Fitz didn’t deal with proving the ‘covert’ issue during trial because it wasn’t germane to whether Libby lied or obstructed. He was investigating whether or not a covert agent had been exposed deliberately, and during that investigation Libby misled. Clearly, even if Fitz thought they had outed a covert agent, he didn’t think he met the burden of proof (and like a good prosecutor, didn’t bring charges).
FWIW, I have never thought the *intent* was to expose Plame and ruin her career. I don’t think Cheney, et. al., cared one way or another about that. I think the intent was to say “Joe Wilson is a girlyman whose wife outranks him and gets him jobs to do” — to embarass him, and imply that he’s not a “real man.” I think they were criminally negligent, or just reckless, in what information they used.
I understand that if you have a dead body that is reason enough to launch an investigation. But if my neighbor accuses me of stealing his new chainsaw, before launching an investigation involving me I would expect investigators to at a minimum conclusively prove: a) he in fact had a new chainsaw and b) it is now missing.
As I said, I haven’t followed every detail of this whole thing. At least in terms of the five year criteria and the government taking action to conceal her identity it would seem that she would not qualify as covert. If Fitz was 100% sure she was then why not introduce that at trial to bolster his case?
The kicker for me though is that we now know that the day Fitzgerald took over the investigation he was aware that Novak got her name from Armitage. What exactly was left to investigate at that point?
OCSteve. Taking your case, the authorities would need to investigate about the chain saw. If someone who possibly had the appropriate answers refused to cooperate or lied to the investigators, that is obstruction of justice and perjury. Even if the chainsaw had never existed.
I understand that if you have a dead body that is reason enough to launch an investigation. But if my neighbor accuses me of stealing his new chainsaw, before launching an investigation involving me I would expect investigators to at a minimum conclusively prove: a) he in fact had a new chainsaw and b) it is now missing.
A CIA referral surely suffices to satisfy this point.
As for Armitage, that was my question above. But there was nothing impossible or illogical about parallel, unrelated leaks. We can suppose that the feds had some reason to think Armitage wasn’t the end of the story, and once Libby started lying & contradicting other witnesses, of course their interest was piqued.
“If Fitz was 100% sure she was then why not introduce that at trial to bolster his case?”
This isn’t my area, but I think a defense attorney might argue that, if it wasn’t part of what Fitz had to prove, it was irrelevant and might prejudice the jury against Lubby.
OT, you want to see a really bogus criminal investigation?
by Lubby I mean Libby, obviously.
There’s a whole forest here and we keep getting pointed to one tree (she wasn’t covert, she wasn’t covert).
Even without clearly provable criminal conduct, the office of the Vice President conspired to savage a critic of the war who was trying to tell the truth about something. It involved the identity of a CIA agent. The CIA asked for an investigation. At the very least, Fitz had to investigate what was done, and whether laws were broken. In the process, Libby — to cover up something which was Wrong, if not Criminal — lied and obstructed justice.
The fact that Novak heard from Armitage does not mean that Cheyney, Rove, Libby and Fleischer didn’t conspire to work the phones and get some stories about Wilson and Plame out there. Fitz had to investigate that.
Libby did something which was arguably criminal but certainly wrong, and lied about it because he didn’t want anyone to know about it. That’s a crime.
And as far as the covert/not covert discussion, I think enough people, close to the actual work, have said she was covert, and was working on WMD of all things.
Katherine, no need to correct yourself, Scooter Lubby has a nice ring to it.
And here’s the recent Firedoglake post dealing with this exact topic:
http://www.firedoglake.com/2007/02/21/wilsons-wife-wasnt-a-person-but-an-argument/
This isn’t my area, but I think a defense attorney might argue that, if it wasn’t part of what Fitz had to prove, it was irrelevant and might prejudice the jury against Lubby
Interesting. Any opinion on the success of an appeal?
Hilzoy:
President Clinton agreed with you, about the need for him to face the charge of perjury, like any other citizen. I don’t know why so few people seem aware that Clinton also tried to work out a way in which he could answer at the bar of justice, after his presidency.
In the last days of the House Committee’s hearings on impeachment, Charles Ruff, the President’s counsel, appeared, representing Clinton, and in addition to a Ruff’s detailed critique of the need for impeachment, he offered a letter from the President signing on to the suggested alternative of Mr. Starr filing an indictment on the specific charges related to Clinton’s testimony under oath in the Paula Jones case; along with that suggestion, the letter offered Clinton’s willingness to pledge, under oath, that he would neither pardon himself in reference to that indictment or any aspect of the case, nor would he accept a pardon from any subsequent President.
You’ll remember that by this time we all knew “sex” was all Starr had, because all the other so-called scandals he’d been investigating and reinvestigating for years, at that point, in order to find something, anything on the Clintons, had come to precisely nothing.
The Republican response on the committee was immediate; not merely disinterest, but a pointed refusal to even consider the possibility of Clinton actually facing a jury, because…wait for it…justice delayed is justice denied. Paula Jones having waited three years to make her charges against Clinton, couldn’t be expected to wait another two years to get her day in court, even though it was clear that the perjury trap into which Clinton had stepped was going to get her a handsome settlement after all, even though the Judge had found that Lewinsky’s relationship with Clinton was not germane to Ms. Jones’ accusations.
That fact would have mitigated against a jury finding the ex-President guilty of the crime of perjury, which is not, after all, the same thing as lying under oath. But both he and the country deserved an actual trial to determine if he had broken the law.
So Clinton did try and work it out; I have no doubts that the Republicans who were so contemptuous of Clinton’s offer, which, as you point out, would have vindicated the rule of law more than the phony impeachment Starr’s office had cooked up, accurately represented the sentiments Starr’s entire staff of young Turk lawyers. The last thing they wanted to do was have to prove a case of actual perjury in a court of law.
Zmulls, your link is broken, here’s the correct one: wilsons-wife-wasnt-a-person-but-an-argument.
OC Steve:
A short list of points re Plame.
Was Plame covert? Obviously yes, or there could never be an investigation in the first instance. Even though her cover is blown, the CIA refuses to confirm the details of her status — that is hardly proof that she was therefore not covert. The right wing talking point that she was not covert is the rankest form of dishonest discourse — a knowing lie.
Was Plame’s covert status proven in the Libby trial? No, and the trial judge specifically ruled that it was a non-issue for the Libby trial. This was largely due to what is known as CIPA — the procedure for allowing a fair trial of a defendant without also requiring needlessly divulging classified information. Libby’s pre-trial strategy was to try to force as many issues into the case that would compel disclosure of classified info which would imperil the willingness of the government to go to trial and have that info exposed.
It was weird in the Libby trial to not address the issue of covert status, and the trial court’s ruling obviously helped Libby at trial (it hurt his blackmail effort to thwart the trial) since the jury was never exposed to the full awfulness of the Plame exposure. And technically, whether Libby lied or not has nothing to do with Plame’s status (though his motive for lying would clearly be tied to his awareness of her status). The exclusion of the issue from trial was by the trial judge under CIPA.
Was there an underlying crime? Hard to know exactly since the crime of deliberately exposing a CIA agent requires very specific proof of the intent to do exactly that, as opposed to being sloppy and letting the info out. Stupid and careless exposure can still be a crime, but not on the same level. I think zmulls’ “girlyman” analysis explains best what probably happened. Maybe there is a violation of the lesser crime in being careless with classified info — many of the players could be liable for that crime. Fitz does not have to explain his reason for opting not to pursue this.
One of my hunches is that the persons who did the disclosing may not have been aware of the covert status — only that she was CIA. I think Cheney and maybe Libby knew of her covert status, but it may have been impossible to prove beyond a reasonable doubt that the others did.
Didn’t Armitage commit the “crime”? This is one of the most misleading of the wingnut talking points. Yes, Armitage was one of the leakers, but there were many, many leakers. Libby, Rove, Fleisher and others were also leakers. And who in the White House gave Armitage the talking points on Plame? Some of these details are still unknown since a lot of the grand jury testimony is still secret.
What seems clear is that someone, most probably Cheney, found out about the Plame-Wilson connection and orchestrated a smear campaign against Wilson based on what zmulls has humorously (but accurately, I think) called the “girlyman” smear. Cheney’s handwritten notes on the Wilson July 6 op-ed are particularly damning. The talking points went out via Libby to other White House personnel and thence outward to numerous reporters. Eventually, Novak bit (many reporters did not see much to the use of Plame to smear Wilson). Armitage was only one of the many flapping jaws. And I bet that most of the flapping jaws (including Armitage) did not know that Plame was both CIA and covert — or at least it could not be proven in a criminal case.
Of course, a short time later, the White house sanctimoniously announced that it did not know who leaked, and that person would be fired if discovered. And McClellan repeated the lie that Rove (and later he included Libby) had no involvement in the leaks. Not crimes but deeply dishonest behavior by the Bush administration, and the right wing sympathizers continue to repeat these lies about the Plame episode.
How can there be an obstruction without an underlying crime proved? Very well explained above by others. What is being obstructed is not proof of the underlying crime, but the investigation into a possible underlying crime. Obstruction is an independent crime based on improper conduct in response to the investigation — it is not a “no harm, no foul” situation. Fitz had a great metaphor for it — you throw sand into the eyes of the umpire trying to make the call and thereby prevent a proper call from being made. Everyone agrees that is wrong, even if it did not in fact prevent the umpire from making a correct call.
To add another thought about Libby — it must be stressed that it deeply angers federal prosecutors to be blatantly lied to. It is what got Martha Stewart in so much trouble, as opposed to the actual insider trading. And Stewart also trotted out the “no underlying crime” nonsense to excuse her misconduct.
OCSteve: But if my neighbor accuses me of stealing his new chainsaw, before launching an investigation involving me I would expect investigators to at a minimum conclusively prove: a) he in fact had a new chainsaw and b) it is now missing.
And wouldn’t you expect the investigators to find it intrinsically suspicious if they found that you were actively blocking their efforts to conclusively prove that your neighbor had a new chainsaw and that it was now missing? If the neighbor intended to provide the receipt and allow the investigators to look at his toolshed, and a close friend of yours was shown to have shredded your neighbor’s papers – including the receipt – and cleared out your neighbor’s toolshed, claiming your neighbor had asked him to “get rid of all that old junk”? which your neighbor denies?
So your neighbor now has no receipt to show, and your best friend just happened to have shredded a boxful of them, and your neighbor cannot show a neatly ordered toolshed with space for a chainsaw that isn’t there, because the toolshed is empty and a whole lot of stuff has gone to landfill.
You say this just shows there never was a new chainsaw – but I think you can see why investigators might fairly want to know why your best friend picked just that box of receipts to shred and why that shed to clear out.
Dmbeaster said it better.
Dmbeaster said it better.
Yup.
Not that it’ll make a dent in the adamantium skulls of many reflexive supporters of this administration….
gwangung, FWIW, OCSteve is not a reflexive supporter of this administration.
FWIW, OCSteve is not a reflexive supporter of this administration.
Sorry…I probably wasn’t clear (’cause I certainly realize that). He’s a person who has a fighting chance of persuading me because he isn’t reflexive.
It’s just that I know far too many people on the internet and in real life who are reflexive…
I wandered over to Just One Minute and the thread there is unbelievable.
Admittedly, Just One Minute was of the “The Defense will put Mitchell on the stand and blow apart Fitzgerald” mindset right up until the defense rested, but I’m pretty sure they never went so nuts as to play the “Fitzgerald will indict Wilson” card.
Still, it’s like bizarro land. Confused (and supposedly lawyers too boot) posters wondering how people can be convicted of perjury and obstruction on an investigation in which no charges were brought, for one.
I don’t get that. Say I’m pulled over by a cop because my car is weaving and the cop thinks it’s because I’md runk. The cop asks for my license and I shoot him. Should I not be charged for assault (or murder, depending) because I wasn’t actually drunk?
The FBI was investigating a crime — Scooter lied to them. A Grand Jury was empaneled to investigate the crime — Scooter lied to them. His lies amounted to obstruction of justice because the prosecuter was unable to properly investigate the crime.
He was charged with making false statements to the FBI, with perjury (lying to the Grand Jury), and with obstruction — all crimes he committed. There is no “Perjury and obstruction are OK if you’re certain no crime happened” exemption.
If you’re certain no crime happened, you cooperate with the police and tell the truth. There’s no reason to lie.
So I don’t get OCSteve’s objections — it’s a felony to lie to the FBI during an investigation. It’s a felony (perjury) to lie to a Grand Jury — regardless of whether they return any charges. It’s a felony to obstruct an investigation, even if no crime was committed.
The reasons for this are simple — I’m sure an occasional person might not get it, but Just One Minute’s comment section is ludicrous.
“Let me give you an example: My brother has a fight with a guy he knows. He hits the guy with a baseball bat. The guy dies that night at the hospital. I burn the baseball bat, because I don’t want my brother to go to jail.
In the course of the investigation, the police learn that I had the baseball bat and destroyed it — I have obstructed justice. Even if an autopsy determines that the man died of unrelated heart failure and not blunt force trauma, I still interfered in their investigation, even if no charges are ever brought to bear against my brother.”
I actually don’t believe this is true, though I’m using random crap I have rattling around from law school rather than any particular law. If he died of an unrelated heart failure it isn’t obstruction of justice. There was no justice interfered with in that case and burning baseball bats isn’t illegal (unless it was already under subpoena, in which case you are guilty of contempt of court).
But that said, I think the perjury can support the obstruction charge–maybe. I have to think about it more.
“He was charged with making false statements to the FBI, with perjury (lying to the Grand Jury), and with obstruction — all crimes he committed. There is no “Perjury and obstruction are OK if you’re certain no crime happened” exemption.”
That isn’t what OCSteve is saying. The Perjury and making false statements part is fine and so far as I can tell makes for a proper conviction of those charges–which already leaves him with plenty of prison time. I’m less excited about obstruction charges without an underlying crime. The nation’s experience with drug crimes investigation makes that a very problematic area in my view.
Seb: I am not a lawyer, but: wouldn’t it make a rather large difference whether you burned the baseball bat before or after you knew that the authorities were looking for it? And doesn’t it make a further large difference, as regards this case, that while burning a baseball bat is not illegal, lying to a grand jury plainly is?
I actually don’t believe this is true, though I’m using random crap I have rattling around from law school rather than any particular law. If he died of an unrelated heart failure it isn’t obstruction of justice. There was no justice interfered with in that case and burning baseball bats isn’t illegal (unless it was already under subpoena, in which case you are guilty of contempt of court).
But that said, I think the perjury can support the obstruction charge–maybe. I have to think about it more.
That’s the problem with analogies. For a perfect one, we’d have to construct a crime in which the lying made it impossible for the investigators to accurately determine whether a crime took place.
You’ld have to prove they were lying, or hiding evidence, or something that obscured the truth — but that’s the essence of obstruction.
In Libby’s case, he lied a lot and that made it impossible for the prosecutors to do their job — which was to determine if a crime took place, and if so, who was guilty.
Obstruction has to be a crime in all cases, otherwise you’d be incentives to do lie and perjur yourself.
Fitzgerald had the best analogy — it’s like throwing sand into the umpire’s eyes when he’s trying to call an out. You make it impossible for him to make the call properly.
And part of the reason it’s a felony is really simple: People will lie, perjur themselves, and otherwise obstruct justice in order to avoid justice. You obstruct justice enough, you might get away with metaphorical murder.
“I actually don’t believe this is true, though I’m using random crap I have rattling around from law school rather than any particular law. If he died of an unrelated heart failure it isn’t obstruction of justice.”
The hypo was that the conclusive determination of “what really happened” (in this case, the autopsy) was subsequent to the investigation. So if the police were investigating and you destroyed evidence, you could be liable for Ob of J, even if the evidence didn’t turn out to be dispositive — the fact that it was thought probative at the time (by you and the police, although I don’t know what the mens rea requirement is in that regard) is enough.
And the answer to Morat20’s point is that finding perjury was necessary but not sufficient to the ob of J charge, I believe — the jury still have to find that Scooter lied w/r/t a fact materially related to the investigation. It’s not as as simple as perjury = ob of J
I tried cutting and pasting from the jury instructions proposed by Libby, but couldn’t get it to work. As proposed, the obstruction count has 4 elements: (a) a pending investigation/proceeding; (b) which is known to the defendant; (c) in which defendant intentionally made materially misleading statements to the grand jury; and (d) in order to obstruct, influence or impede the due administration of justice.
Underlying content of the investigation is simply not relevant, as a legal matter.
I’m not sure what instructions were given, but you can assume that Libby was proposing the best interpretation available. The statute at issue is the one quoted by publius below.
Success in impeding the investigation is also not an element. To go to the other analogy, you can get ejected from the game for throwing sand in the umpire’s eyes, even if he’s still able to call you out.
“The hypo was that the conclusive determination of “what really happened” (in this case, the autopsy) was subsequent to the investigation.”
Yes, but not that the determination was based on the baseball bat. If there is no underlying crime, there is no obstruction of justice.
Just think of the applications in the drug war (because that is where precedents that look nice at first often get abused and multiply out of control). I’m not at all comfortable with obstruction having no underlying crime. Perjury is a separate offense. Lying to the FBI is a separate offense. People fail to cooperate with the police for all sorts of reasons, being unable to prove that there was a good case should not therefore be “obstruction of justice” unless you can prove the underlying issue was illegal (in a criminal case) or pertains to the issue at hand such as to prejudice the other side (in a civil case).
By the way, Clinton was guilty of provable perjury, but the obstruction of justice was not conclusively shown (the Willey shennanigans suggested it, but didn’t really prove it).
FWIW, OCSteve is not a reflexive supporter of this administration.
I did have to look up “adamantium” though. Used in a sentence: I used an adamantium saw blade to dispose of a chainsaw.
So I don’t get OCSteve’s objections — it’s a felony to lie to the FBI during an investigation. It’s a felony (perjury) to lie to a Grand Jury — regardless of whether they return any charges.
In my very first comment I said I was (mostly) OK with the false statements/perjury charges. I just didn’t understand the concept of obstruction when no crime has been established and asked for clarification from the crack ObWi legal staff. The concept has been thoroughly explained to me at this point. I’m still not sure I’m happy with how it applied here though.
Didn’t the prosecution make references to her being covert/clandestine throughout the trial? Doesn’t that plant the thought in the jury’s mind, but then due to the judges ruling (CIPA – thanks dmbeaster) he doesn’t have to present evidence to prove it?
And I know most here take it for granted that there is no doubt about her status. But all I’m still hearing are anecdotes like ‘of course she was otherwise the CIA would never have referred it’ or ‘people close said she was’, or ‘there would not have been an investigation in the first place’. I just understand there to be a legal standard for covert and no one has pointed me to where that standard was met. The CIA requested a leak investigation and did not specify that she was covert or blown. The prosecution did not attempt to prove it, and beyond the judge’s trial ruling, it is not mentioned in the original indictment. I think this is more than a wingnut talking point but I’ll concede it if someone can show me where it was conclusively established.
“Underlying content of the investigation is simply not relevant, as a legal matter.”
I actually think it is relevant under (d). For example if the FBI tried to frame someone, and in the course of doing so conducted a facially ok ‘investigation’ in which someone lied to them, I don’t think (d) could be shown once the FBI frame-up came to light.
To take devil’s advocate for a minute, since I for one can certainly not be described as a “reflexive support of the Bush administration”:
moe99: Patrick Fitzgerald said at the press conference today that he was 100% certain that Plame was covert. That’s all the verification I need.
Morat20: The recommendation by the CIA to the Justice department for a criminal investigation should be proof enough that Plame’s status was undercover.
Anderson: A CIA referral surely suffices to satisfy this point.
I am fairly dubious about this argument, and indeed can see that the circumstancial evidence that seems to show that Plame pretty definitely was covert, could equally be interpreted to mean that the CIA wanted to make it look as if she were covert.
Wait, I have a conspiracy theory! Maybe Plame wasn’t covert, or maybe she was, but maybe the CIA intended for Cheney and Libby et al on that famous conversation on Air Force One to believe she wasn’t covert: maybe they knew Cheney and his crew would be reckless. Maybe they set them up hoping to take down Cheney, given that they knew that blame was going to fly for the invasion of Iraq and the claimed WMD, and they intended for Cheney to be too busy figuring out how to escape indictment over outing Plame, to have any time to throw stones at the CIA and claim “they gave me the wrong information!”
I don’t actually think this is what happened. I don’t think Cheney needed to be set up. But if the only evidence we had was of the order of the CIA referring the crime to the DoJ, or Fitzgerald saying he was 100% sure Plame was covert, then I’d be – reluctantly – standing dubiously with OCSteve.
But we do have more evidence than that. Plame really was a CIA employee, and unless the CIA had been setting her up for years for this, it does look like – until she was outed – she really was covert.
And, whatever hairsplitting goes on, and how ever likely it is that I might out a covert CIA agent if such information came my way, Cheney and Libby and the rest of the White House crew were supposed to be part of the US government, which I am not: they were supposed to feel loyalty to the people who work for the US government, which I have no reason to. If I outed the identity of a CIA covert agent, it might or might not be a criminal offense, and we could disagree over whether it had been a politically effective thing to do – but it wouldn’t be a betrayal, because I have no obligations or responsibilities towards US national security.
Cheney does. So does Libby. Criminal offense or not, what they did to Plame stinks.
I haven’t followed this closely enough to be able to pull up the proof that Plame was covert. I will note that Fitzgerald said he was 100% sure that her status was classified, that the CIA referred it, and also that a bunch of people (e.g., Larry Johnson) have said that she was a NOC; and I have never seen this convincingly denied. On the other hand, I am not expecting the CIA to come forward with full documentation of someone’s undercover status — that’s the sort of thing about which I don’t expect to find something like a smoking gun. I am convinced that she was a NOC, myself.
However: one thing that puzzles me about some of the reaction on the right (not referring to anyone here) is the way they alternate between caring only about the legal details and then somehow not caring about the legal details, as it suits their purpose. I mean:
If you look at the big picture — the big moral picture, in which the main point doesn’t have much to do with the specifics of the law governing outing agents, etc. — the fact is that the administration outed a CIA agent for political purposes. The legal questions revolve (iirc) around such questions as: had she worked overseas within the last 5 years). The moral question does not. Outing an undercover agent puts her previous contacts in jeopardy, undercuts the confidence of other agents that their government will protect their identities, and does all sorts of other Very Bad Things. Regardless of whether it’s a crime, this is just an appalling way to act — sort of like the Walter Reed thing in its absolute disregard of the claims of people who have put themselves at risk in the nation’s service.
One could, I suppose, decide to disregard all of this and focus on the narrower legal question of whether crimes were committed, and if so whether they can be proven in a court of law. In that case, you get to disregard the above. But it’s pretty odd to disregard all of that on the grounds that it’s not a crime, and then decide to disregard actual crimes on the grounds that suddenly, what’s relevant is not whether actual crimes were committed, but the big picture, from which the utterly reprehensible nature of what Cheney and his underlings did has mysteriously been excised.
“Cheney does. So does Libby. Criminal offense or not, what they did to Plame stinks.”
That is a fair assesment, and we really don’t have to be overly legalistic.
If you look at the big picture — the big moral picture, in which the main point doesn’t have much to do with the specifics of the law governing outing agents, etc. — the fact is that the administration outed a CIA agent for political purposes. The legal questions revolve (iirc) around such questions as: had she worked overseas within the last 5 years). The moral question does not. Outing an undercover agent puts her previous contacts in jeopardy, undercuts the confidence of other agents that their government will protect their identities, and does all sorts of other Very Bad Things. Regardless of whether it’s a crime, this is just an appalling way to act — sort of like the Walter Reed thing in its absolute disregard of the claims of people who have put themselves at risk in the nation’s service.
One could, I suppose, decide to disregard all of this and focus on the narrower legal question of whether crimes were committed, and if so whether they can be proven in a court of law. In that case, you get to disregard the above. But it’s pretty odd to disregard all of that on the grounds that it’s not a crime, and then decide to disregard actual crimes on the grounds that suddenly, what’s relevant is not whether actual crimes were committed, but the big picture, from which the utterly reprehensible nature of what Cheney and his underlings did has mysteriously been excised.
Yes.
“Cheney does. So does Libby. Criminal offense or not, what they did to Plame stinks.”
That is a fair assesment, and we really don’t have to be overly legalistic.
Double yes.
covert status is so important, that even, as happened here, where a covert agent is outed, the CIA generally doesn’t verify covert status. This keeps the question open which is a godsend for those who need a reason to keep questioning.
Plame is being interviewed later this month by Keith Olbermann. It would be nice if she could verify her covert status but I am assuming she cannot for the same reasons that the CIA still does not publicly verify it.
And the jury instructions summarized above make it clear that only if the perjury charge stands can the obstruction of justice charge also stand. The obstruction took place at the time the perjured testimony was offered by Libby to government investigators. As a former SEC enforcement attorney, I am well aware of both perjury and obstruction of justice, although my enforcement cases w/ one exception were exclusively civil rather than criminal, and though I researched perjury extensively we never used it in any of my cases, particularly given the difficulty with proving it in a court of law. So my admiration for Fitzgerald is based in part upon my own limited experiences.
The nuance I think people are missing here is that there are two different definitions of “covert.”
There’s the “covert” we’re all familiar with from the dictionary, and I’m fairly certain this is the sense in which Fitzgerald uses the word when he says he’s 100% certain Plame was covert. Her job as a CIA employee was classified; ergo she was covert.
But then there’s the legal definition of “covert” for purposes of the IIPA, which includes all sorts of technical requirements, like the person having served outside the U.S. in the last five years and so forth.
If you can’t satisfy the requirements of the IIPA definition, then there’s no violation of that particular statute. But it doesn’t mean you’re not “covert,” it doesn’t mean your relationship with the CIA wasn’t classified, it doesn’t mean a leak of your identity couldn’t be a violation of an entirely different statute.
The IIPA doesn’t rewrite the dictionary. Valerie Plame was clearly covert in the sense that virtually no one knew she worked for the CIA. People who say she wasn’t “covert,” when what they really mean is that she didn’t meet the IIPA’s definition of covert, are generally trying to obfuscate the issues.
covert status is so important, that even, as happened here, where a covert agent is outed, the CIA generally doesn’t verify covert status.
“If we told you about it, we’d have to kill you.”
It also occurs to me that this is a case where Bush apologists are attacking the use of classified information in a case where the the consqueences are very real and very damaging to national security.
Also, you have to bear in mind one other tidbit: Plame’s status could be declassified at the whim of the President.
He could, in fact, go on TV and read aloud the list of CIA NOC agents and not do anything illegal.
Now, Cheney (IIRC) at one point claimed he had the same power — part of the incredible muddle of this case (and the probable reason Fitzgerald won’t pursue it further) is it’ll quickly get to Dick, and whether or not the executive has the authority to start burning agents for political purposes.
That is a question for Congress, not the courts. Fitzgerald has struck me as a very solid and reliable prosecutor. He was tenacious, but stayed within his original mandate and didn’t overreach. A more zealous prosecutor might have charged Rove and Armitage or even Cheney, and had none of them stick. Fitzgerald seems to be very professional about the whole thing.
My intent is not to split legal hairs – I’m not qualified.
I expected the perjury charges to fly. To the extent that I was even aware of an obstruction charge, that was a surprise to me today. I now have a better understanding of how that works. Thanks all for the explanations (I still find it just a little scary though.)
I do hope that her status is resolved beyond doubt at some point – it does feel (to me) like a question mark hanging over this whole thing.
Legal vs. Moral – of course what they did was wrong. Not just from the perspective of allegedly blowing a NOC – simply from the perspective that if you have a problem with a man you take it up with the man – you don’t drag his wife into it.
‘But then there’s the legal definition of “covert” for purposes of the IIPA, which includes all sorts of technical requirements, like the person having served outside the U.S. in the last five years and so forth.’
My understanding is that more than one of her former colleagues have publicly said she was a NOC, within five years etc.
Fitzgerald seems to be very professional about the whole thing.
I mostly agree with that, with one exception. At his indictment presser he stated that Libby was the first official known to have told a reporter. At the time he said that he knew it was in fact Armitage. What’s up with that?
Jes: Wait, I have a conspiracy theory
Not even close. The actual conspiracy theory goes like this: CIA and State have been undermining the administration since day one. Mostly it is an entrenched cabal of Democrats. The steady stream of leaks and the slant of those leaks are proof. The CIA sent Wilson knowing what he would report on his return. The key is that he was not required to sign a secrecy agreement of any kind, not even a NDA. That left him free to pen his op-ed. Furthermore, he did not submit a written report, so there is no real paper trail to contradict whatever he decided to say.
There doesn’t have to have been an IIPA crime for the investigation to have been validly undertaken. Suppose VP’s status was learned by ILL, or KR, or such, as classified information. And suppose one or more of them revealed it, without proper authorization,* to someone who didn’t have a security clearance.
Even if this is not a crime, it’s a violation of the regulations/agreement that are part of the security clearances that ILL, KR, etc have. And thus worthy of exploration.
For this reason, the whole 5 years thing has always been misdirection.
* If the President did authorize the disclosure, of course, he could have said so at the outset of the thing, instead of saying that leaks are bad and that the evildoers would be brought to justice.
I mostly agree with that, with one exception. At his indictment presser he stated that Libby was the first official known to have told a reporter. At the time he said that he knew it was in fact Armitage. What’s up with that?
Misspoke? Wasn’t sure about the timeline at the time? (This all did happen in a matter of days) Was still hoping to push Libby into coming in and talking? Was nitpicking — Libby alluded to it first, but Armitage spoke the name first?
Judging by the way he handled Rove, Libby could still have cut a deal anytime up until the actual trial started. (Rove certainly cut a last minute deal).
Yes, let’s not be overly legalistic. Let’s assume Plame was covert. As a covert agent, she recommends her husband for a CIA assignment. Joe Wilson, the husband, is hired by the CIA, travels to Africa, performs his assignment and upon his return gives a verbal report to the CIA.
Nobody finds it odd that Wilson, who worked for the CIA, is later allowed to write a New York Times editorial describing his secret mission to Africa? Since when does the CIA permit “My Mission for the CIA” articles? Not only does he describe his mission, but he also claims special knowledge; he believes the President of the United States lied the country into war.
Are we to believe there was no concern by the CIA that if one works for the CIA and one’s wife is a “covert” agent that making outrageous claims in a New York Times editorial might be attracting undue attention towards the “covert” agent wife? Wasn’t it the publicity seeking, by Wilson, which placed his “covert” wife at risk?
Was it Armitage or Wilson who outted a “covert” agent.
purely academic question: is it legal to tell Libby: “don’t say anything about Cheney to reduce your sentence–President Bush will pardon you when the time comes”?
I know the pardon power is pretty unreviewable and hard to limit; but I’m wondering if the quid pro quo is allowed (of course, it would presumably have to be an explicit quid pro quo and that wouldn’t really be necessary, in practice. I’m just curious.)
Well it’s legal for the prosecutor to say: “Spill your guts on Cheney and I’ll give you immunity.”
Hey – wait a minute, you’re the lawyer here 🙂
One thing that should be interesting if the pardon question heats up: Where will HRC stand? I would think that pardons would be the last thing she would want to discuss, or especially condemn.
M. Stone:L Wilson was not hired by the CIA. He was asked to go, but he did not work for them. Thus I would assume he did not sign nondisclosure agreements.
His wife, by contrast, did work for them, and presumably did sign those agreements.
OCSteve: I know you were channelling, not speaking for yourself, and I’m just talking about the people you were channelling, not you. But: you probably realize how incredibly funny it sounds to those of us on the left to be told that the CIA is a bunch of liberals. Next we’ll be hearing that the US Marine Corps is just a bunch of Democrats and socialists. Maybe after that the John Birch Society. Who knows?
Hilzoy: But: you probably realize how incredibly funny it sounds to those of us on the left to be told that the CIA is a bunch of liberals.
I assumed you would get a kick out of that.
You would be surprised though (or not) how many people take that as gospel.
OCSteve: to me, it’s not as funny as when those of us who opposed the Iraq war used to get lectured on how we had no concern whatsoever for suffering people in distant countries, after having spent most of the last two decades having people think of us as wandering around saying: ooooh, the poor Guatemalans! the indigenous peoples of Australasia! And who can forget the tiny furry baby seals!!!!! To suddenly switch from being thought of as someone who took an overdose of an empathy drug to a callous and indifferent person, too caught up in my own liberal whatever to give even a thought to the millions crushed under Saddam Hussein’s fist — it gave me whiplash.
OC Steve:
Didn’t the prosecution make references to her being covert/clandestine throughout the trial? Doesn’t that plant the thought in the jury’s mind, but then due to the judges ruling (CIPA – thanks dmbeaster) he doesn’t have to present evidence to prove it?
As a trial lawyer, I was addicted to reading the Firedoglake coverage every day. There are many weird wrinkles to this question.
There was no way to prevent the jury from wondering about Plame’s actual status — but they were repeatedly admonished by the judge that her status was not an issue. The prosecution was also careful throughout to make that point.
But the facts on the point came out in many other ways for legally valid reasons. The most common was proof of Libby’s state of mind to prove intent to lie. Thus proof that Libby was aware of the potential severe consequences of outing a potentially covert agent was admissible for purposes of his state of mind. This legal fiction — that finders of fact can make use of a fact for one limited purpose and not use it for others — is a bizarre one but entirely legal.
For example, newspaper stories found in Libby’s files that talked about the issue were admissible as to his state of mind that would induce him to lie. Crazy, even though the jury was specifically told to use the stories strictly for this purpose, and not take as true whatever was written in the story.
I actually think this particular jury, which from signs so far seemed above average in careful deliberation according to the instructions, probably was not tainted by the potential prejudice of this. These kind of judgment calls on evidence get made all the time in criminal cases.
I am sure that the prosecution would have liked to have gone into the details of Plame’s actual status and the impact of the outing — like in a child abuse case, it lowers the burden for conviction since the jury wants to find someone guilty for such evil. But I suspect that the CIA made it clear that they did not want to divulge the details in the case, and under CIPA the judge found that her status was taken out of the case without violating Libby’s rights.
______________
I just understand there to be a legal standard for covert and no one has pointed me to where that standard was met.
I think you are right that there has never been any public proceeding confirming this fact as true. But think about the strength of the circumstancial evidence on this.
My understanding of this is that after the CIA referred it, the Department of Justice makes its own independent determination as to whether an investigation was warranted. I am not aware that there is any public disclosure of exactly what happened, but think of the context. Ashcroft had to decide what to do with this extremely sensitive case. If Plame did not meet the criteria under IIPA as covert, would Ashcroft still recuse himself and have the matter continue with a special prosecutor?
The Bush administration could have safely buried this thing by public disclosure that her status was non-covert under IIPA, and terminated any investigation. End of problem. But they were forced to play this one by the book — the inference that she was therefore a NOC protected by IIPA is extremely strong.
I would also point out that as often as the right wing makes this claim, it is never backed up with any evidence. It would seem to be easy to establish that she was not covert, and perfectly legal to do so with publicly available evidence. It is simply mindlessly repeated so that its own echo is alleged proof, just as Andrea Mitchell did in that famous episode with Imus (she later jokingly described herself as “drunk” when she made the remark).
Hilzoy: Yeah well… Consistency has never been our strong suite.
In my favor – I don’t give a damn about baby seals now any more than I did then. I say let the Eskimos club ‘em before they drown in the global warming.
But: you probably realize how incredibly funny it sounds to those of us on the left to be told that the CIA is a bunch of liberals.
Not only is the CIA a bunch of liberals, it’s a bunch of liberals with an astonishing ability to predict the future.
They somehow knew George W Bush would be President and that he would go to war with Iraq.
They somehow knew he would accuse Saddam Hussein of trying to acquire yellowcake from Niger – and planned to have Valerie Plame find out that Bush would say so just in time to have her husband, Joe Wilson, sent to Niger… all for the purpose of crying foul when Bush said those “16 words” (which the CIA also accurately predicted) so Joe could write an Op-Ed for the NY TImes.
The only thing more miraculous than those liberals in the CIA accurately predicting the future is their patience. Valerie Plame spent 25 sitting at a desk just waiting for her chance to sabotage George W Bush. Joe Wilson spent all those years in the diplomatic corps, and even working for the senior President Bush, just so he could position himself to be the guy they sent to Niger as part of the dastardly plot to Make Bush Look Bad.
It’s amazing, really.
OC Steve:
I mostly agree with that, with one exception. At his indictment presser he stated that Libby was the first official known to have told a reporter. At the time he said that he knew it was in fact Armitage. What’s up with that?
No — Libby was the first in discussions with Judy Miller on June 23. Armitage first spoke to Novak on July 8.
This is yet another example of deliberately false right wing talking points (which I understand you are just repeating here rhetorically, OC Steve). It is worth noting just how much disinformation has been spewed by the right wing on this. Anyone with an open mind would take note of the fact that Libby’s defenders seemed wedded to deliberate falsehood (which includes the nonsense about Wilson lying, etc.).
dmbeaster: This legal fiction — that finders of fact can make use of a fact for one limited purpose and not use it for others — is a bizarre one but entirely legal.
Now that just makes my brain hurt.
Thanks for the follow up. You make a strong case regarding the circumstantial evidence.
Any opinion on the new trial or appeal strength? I’m seeing a lot tonight in the rightosphere on a few points:
-Jury confusion as evidenced by the questions so late in their deliberations, confusion about reasonable doubt, etc.
-Fitz’s closing argument was politically charged, referencing Cheney repeatedly, making his closing arguments less about Libby and more about Cheney.
-The garrulous juror, that he seemed to have influence on the rest of the jury, the fact that he is an ex-reporter and may have lent weight to Russert’s testimony (and thus Fleischer’s because it meshed with Russert’s)…
Bringing you tomorrow’s talking points tonight…
For my mind, one very sure and strong indication that Wilson broke no law and violated no agreement when writing his editorial is that the administraiton has never once (to the best of my knowledge) directly accused him of either. If they had grounds for action, they’d have taken it.
Yes, but not that the determination was based on the baseball bat. If there is no underlying crime, there is no obstruction of justice.
…Perjury is a separate offense. Lying to the FBI is a separate offense. People fail to cooperate with the police for all sorts of reasons, being unable to prove that there was a good case should not therefore be “obstruction of justice” unless you can prove the underlying issue was illegal (in a criminal case) or pertains to the issue at hand such as to prejudice the other side (in a civil case).
Sebastian, think of perjury as being the mental/verbal equivalent of destroying a potential murder weapon (just harder to prove since it’s nonphysical) — that intentional action, combined with knowledge of the ongoing investigation creates the separate obstruction of justice charge. It’s just a straight-up specific-intent crime.
Perjury is merely the prerequisite in this case because the prosecution has the burden of showing intent and knowledge (as opposed to say, destroying the murder weapons negligently or recklessly in the hypo).
Or, put yet another way, the charge is not for actually interfering with the investigation, but rather an intent to interfere. I’m sure we’re all aware that if you shoot at someone with intent to kill and happen to miss, you don’t just get to walk away.
I’m not sure how this could be any clearer.
I just heard this report on NPR on the way home. It totally made my day to hear: “NPR reporter Libby Lewis is covering the Lewis Libby trial today”
Depends on what sort of NDA you’re talking about. If it’s a NDA for clearance, he cannot (take “cannot” loosely; things tend to work differently at those levels, perhaps) have accessed any cleared information without signing one. If it’s some sort of blanket, corporatese NDA, possibly you’re right.
OCSteve: it may make your brain hurt, but I think there’s a good reason for it. Namely: sometimes it’s necessary to prove some fact in order to make a charge stick, and it’s impossible to prove it without information that a jury might find prejudicial.
For instance: I was once an alternate on a jury in a case that involved a gynecologist who was accused of sexual molestation during an exam. (Ugh!) Obviously, no one was contesting the fact that the gynecologist had touched the woman’s vagina — he had given her a gynecological exam, after all. So there was no forensic evidence; it all came down to state of mind.
Now: what made this more than ‘he said she said’ was the fact that other women had alleged that he had done this to them, and had done things at the time like: write letters to the American College of Obstetrics and Gynecology (or whatever it’s called) saying so; and these women did not know the plaintiff. That’s relevant insofar as it establishes a pattern; it’s also relevant insofar as it makes it much, much less likely that the guy just happened to do something that felt an awful lot like sexual molestation by accident. He had been warned by the Am. Coll. ObGyn that he would lose his certification as a gynecologist if there were any more complaints, so you’d think he’d be extra specially careful.
However, the other women were not bringing charges — the statute of limitations had expired. So we on the jury were explicity instructed only to use the evidence of previous acts IF we thought he had committed this one, to establish state of mind; NOT to ask ourselves: is he guilty of anything?
I don’t see how that case could have been tried without bringing in the other evidence. We were, though, told over and over and over how to use it, and while (as I understand it) the jury decided on stupid grounds, the stupidity wasn’t: making that mistake. (It was: thinking a doctor would never do such a thing.)
I was even more complicated: I would have voted to acquit on the grounds that while I thought he did molest the plaintiff, I didn’t think so beyond a reasonable doubt, since while I found the other women extremely credible, the woman actually bringing the complaint was not, and so, limiting myself to the question ‘did he do THIS act?’, I had to say: ‘I’m not sure beyond a reasonable doubt’, since I knew that the other women’s testimony couldn’t be used to establish that fact.
Me on juries: always a delight. (I have never been kicked off. Not once. Everyone says academics are always kicked off, and I, an academic whose specialties include guilt and responsibility, would seem like an especially good candidate for dismissal. But noooooo…)
OCS, none of those things sound like reversible errors. Did Libby object during closing? I don’t recall hearing that he did. Obviously there’s nothing wrong with an influential juror — what do you think Hil would be like on a jury? And the confusion point is just silly.
If there are errors, it seems to me that they’d have to do with the memory expert, and maybe Mitchell. Judge Walton seems to have run a pretty thoughtful proceeding. (I’ve usually liked him, but can’t be too effusive, since I have an appeal pending from a case I have with him).
Libby doesn’t have to get a new trial to stretch this out. He can move for a new trial, then file (I think) a post-sentencing motion, and then an appeal. With some luck (on his part), it’ll take a year at least to get from noting an appeal to reading a decision. If you assume he can get well into the summer before he has an appealable order, that means it’s well into 2008 before his conviction is affirmed. Cert denied in late fall 2008. Pardon just as he has to start his sentence.
I would expect that Judge Walton is going to take his time with the post-trial motions: he’s undoubtedly pretty tired from the trial, motions in his other cases have stacked up and now require attention, and he knows that this will be a well-funded and well examnined appeal.
OCS, the objection point is the biggest deal. You don’t get to complain on appeal, or in a post-trial motion, about anything you didn’t preserve at trial. It does no good at all to sit around and think about all the things you wish had been different: you have to show that Judge Walton was given a chance to rule on something, and ruled the wrong way.
jesurgislac writes “as all we have to show she wasn’t is a bunch of journalists who claim – without evidence – that “everybody knew” she was a CIA employee.”
And the assertion from Ms. Toensing “who wrote the law” that the agent must have been assigned long-term outside the US – when the law itself says no such thing.
Which is to say, she’s lying now because her buddy is being foist by her petard.
You cannot impeach the jury’s verdict, period, absent evidence of bribery or improper influence. It’s an ironclad rule of law that you cannot ask the jurors what they talked about and then appeal on the grounds that they discussed the case in the wrong way; among other things, jurors would find themselves endlessly harassed by the losing party. Speculating about whether the jury was “confused” falls squarely into this category; the only issues are whether the judge instructed them properly and whether the verdict is consistent (which it obviously is).
That’s not to say that there aren’t reasonable grounds to raise on appeal, but all this business about the jury is just total nonsense. Libby’s supporters disagree with the jury, therefore the jury was a bunch of idiots. That’s all the substance there is to it.
OCSteve writes: “Jury confusion as evidenced by the questions so late in their deliberations, confusion about reasonable doubt, etc.”
The lawyers covering the trial for Firedoglake noted that this is common at trials, and often comes toward the end of deliberations – ie, when the jury is thinking they might be sending someone to prison and wants to make *sure* they understand the concept of reasonable doubt.
Also, given the elaboarate process they apparently took, where they used a zillion 24″x24″ post-it pad sheets and diagrammed the whole trial and all the evidence, it would make sense that they would be asking questions towards the end – the initial phase of deliberations would be taken up by getting the facts together and written down.
“I just understand there to be a legal standard for covert and no one has pointed me to where that standard was met.”
Well, technically, Libby’s trial was about an entirely orthogonal issue, so whether Plame was covert really didn’t enter into it.
That would only have mattered had Libby been charged with violating the IIPA, which he wasn’t.
If I recall correctly, Fitzgerald wouldn’t give a definitive answer on it, implicitly because he considered it to still be sensitive information.
That, of course, could have been tactical on his part, as a way to point out the significance of the perjury. Similarly, in a slide during final arguments, he had the faces of the witnesses, except two CIA witnesses who were represented by the CIA seal or logo or something – even though they had appeared in court and been seen by the jury – presumably to underline to the jury the importance of preserving the secrecy of CIA employee identities.
Also, the ‘confusion’ argument really fails when you consider who the jurors were. At least one PhD, a web guy who works for the Feds, an MIT-trained economist, etc.
I can imagine some right-wingers assume a DC jury was made up of poorly educated welfare queens and drug dealers, but that definitely was not the case.
M. Stone writes: “Are we to believe there was no concern by the CIA that if one works for the CIA and one’s wife is a “covert” agent that making outrageous claims in a New York Times editorial might be attracting undue attention towards the “covert” agent wife? Wasn’t it the publicity seeking, by Wilson, which placed his “covert” wife at risk?”
Well, given that the CIA often works out of embassies, and that Wilson was the attache (or whatever) in Baghdad at the time of the first Gulf War, and that Wilson had spent quite a bit of time in Africa, and that Wilson worked in defense-oriented work in the Clinton administration, and that ex-CIA head Bush 41 thought the world of him and gave him a medal, it would not be the least bit unusual for Wilson to have plenty of connections with the CIA in his own right.
Given all that, I’d think the odds of his *wife* being a CIA NOC are really quite tiny. The odds favor there being only one CIA-connected person in a family, I should think.
Porter Goss used to be CIA. So was congressman Rob Simmons. Do you automatically assume their spouses are probably CIA? I doubt it.
hilzoy: Even if Wilson did not technically work as a CIA agent and did not sign a non-disclosure, writing the editorial still seemed too close to home. But, I stand corrected, Thanks.
Jon H: Really? If my CIA NOC wife recommends me for a CIA job am I really going to write a highly inflammatory editorial about it in the NYT? That doesn’t seem a little risky to you?
The question is not would anyone automatically assume the wife of Wilson was CIA, but was it smart to advertise so close to home? If the NOC wives of Portor Goss or Rob Simmons sent them on a CIA job do you think they would write about it? I doubt it.
“Perjury is merely the prerequisite in this case because the prosecution has the burden of showing intent and knowledge (as opposed to say, destroying the murder weapons negligently or recklessly in the hypo).”
It seems to me that all this is covered in the perjury charge, and so a separate perjury-based obstruction charge is wholly redundant. (And please realize that I’m not offering an excuse at all. I tend to think that perjury is a WAY MORE SERIOUS crime than most people seem to treat it as).
M. Stone: The question is not would anyone automatically assume the wife of Wilson was CIA, but was it smart to advertise so close to home?
If you read Wilson’s op-ed, you will find that the third paragraph briefly outlines Wilson’s direct experience in Iraq and in several African countries. The fourth paragraph opens “It was my experience in Africa that led me to play a small role in the effort to verify information about Africa’s suspected link to Iraq’s nonconventional weapons programs.”
The CIA is not mentioned until the 5th paragraph, and then anonymously and plurally “agency officials”, “officials at the Central Intelligence Agency”. Given no one knew that “Mrs Wilson” worked for the CIA – ostensibly, Valerie Plame’s employer was Brewster-Jennings – I think that given Wilson felt obliged to write the op-ed, he structured it well so that no one would have any reason to suppose any personal connection between himself and the CIA.
I hadn’t thought of it before, though textual analysis of how people say things is part of my job, but in fact, yes, the way in which Wilson wrote the article is extremely smart.
Sebastian: It seems to me that all this is covered in the perjury charge, and so a separate perjury-based obstruction charge is wholly redundant.
Not really. Bill Clinton perjured himself when he said that he hadn’t had sex with Monica Lewinsky. (Or didn’t, if you accept the standard het male’s defintion of “having sex”.) Either way, the perjury charge was that having been asked if he’d had sex with Lewinsky, he lied.
Since whether Clinton had had sex with Lewinsky or not was entirely irrelevant to the case – such as it was – he couldn’t be charged with obstructing justice, and wasn’t.
Whereas the information that Libby lied about was vital to the investigation of whether a prosecutable offense had been committed when Cheney, Libby, et al, decided to leak the identity of Joseph Wilson’s wife to the media.
May I ask a probabely stupid question? Why is there a pardon option in the US? For me it is extremely weird to see that people can get a pardon if they know the right people. Especially if they can later on get governmental power again.
Why was it institutioned? And what limits are there (I assume there are limits. Or could he pardon murderers if he liked them? Seems unlikely, but so does the whole pardon thing for me)?
I did a quick google and found this on USgovinfo.about.com, which doesn’t say why the Presidential power of pardon was put into the US Constitution, but does make it clear that, Constitutionally, it is limitless.
Bill Clinton perjured himself when he said that he hadn’t had sex with Monica Lewinsky. (Or didn’t, if you accept the standard het male’s defintion of “having sex”.)
My recollection of the time was that (unusually in the US) the District of Columbia actually has a law that defines what sex is, and it does not include oral sex. My conclusion from this (not seen published anywhere, but my own opinion) was and is that Clinton, as a smart lawyer, knew this and therefore (a) kept the relationship from going beyond oral sex, and (b) felt confident about denying sex because of this quirk in the law.
I think he lied (because most people don’t go by technical legal definitions) but didn’t commit perjury (because the courts do).
Why is there a pardon option in the US?
apparently, it’s to make sure that everybody has a reason to hate the outgoing president a little bit more than they did before.
It’s my recollection that “sex” was defined for purposes of the Jones case by a ruling from the judge. And that the President’s testimony was not perjury because he didn’t lie about any material fact.
Amos: I think he lied (because most people don’t go by technical legal definitions) but didn’t commit perjury (because the courts do).
That’s interesting, thanks (about the DC definition of sex).
But, it’s actually been my impression (based on some rude questions I’ve been asked about how, as a lesbian, I can “have sex”) and on the fact that many teens in the Silver Ring Thing and other “abstinence” programs apparently believe that when they agree not to “have sex”, oral sex doesn’t count, that, to many heterosexuals, especially men, oral sex isn’t “having sex”. Not a technical legal definition, but an emotional certainty.
I’m sure you’re right that Clinton knew the DC definition of sex, though.
Why is there a pardon option in the US?
Federalist #74 gves us this:
Other Federalist papers talk about the pardoning power of other executives, including (in #20) the executive magistrate of the States-General of the United Netherlands. (At the time, of course. Dutchmarbel, is there no pardon power there now?)
I’ve always taken it for granted that there should be some way for miscarriages of justice to be overturned by the judgement of an individual, and the President is the natural individual to have that power. Because the power has been (and might be) abused is not by itself a reason to remove it.
Federalist available from Project Gutenberg.
Jes: especially when they’re married to someone else. The power of rationalization is awesome. That was probably in Clinton’s mind too. I’m not really trying to defend him.
Oh, nor am I. I don’t think lying about a blow job ought to have been made into a criminal offense, but I do think Bill Clinton’s behavior towards Lewinsky and towards his wife was extremely shoddy.
It is international standard that the head of state has the right to pardon. In states with a presidial system it is therefore the head of the executive, while in parliamentary systems (e.g. Britain, Germany) the head of the executive doesn’t possess this right. In Britain it would be the Queen, in Germany it is the Bundespräsident (both essentially without formal power otherwise).
What seems peculiar for the US is the possibility of a “preemptive pardon”, i.e. a pardon issued before there is actually a verdict of guilt.
It would be interesting to know, whether a sitting president could issue a pardon for a crime not yet committed but probable to happen before he leaves office.
A point we already discussed in the past (without a conclusion iirc) was, whether from a strictly legalistic POV a president could pardon himself (instead of pardoning the vice, “abdicating” in the vice’s favor and then getting pardoned by him)
OC Steve:
Any opinion on the new trial or appeal strength?
I would be amazed if a new trial motion got anywhere, but they can sometimes be useful (or necessary) to set up issues for appeal.
There seem to me to be a lot of potential issues for appeal because there were so many novel legal issues in the trial. I do not have any opinion on how they will fare on appeal. Also, we do not yet know who will hear the appeal; there are definite political types on the DC Circuit who would be happy to find a technicality to reverse for Libby. There is definite conservative judicial activism on the DC appellate bench (Silberberg and the Oliver North conviction being a famous example).
The actual examples you reference circulating in right wing discussions seem unlikely to amount to anything.
Jury confusion? — they seemed particularly clear headed, and the notes were normal. The responses to the notes were largely agreed upon by prosecution and defense.
Fitz remark about a cloud over VP office? — a response in rebuttal to a remark by Wells and no objection made to it. Have you seen Cheney’s hand-written remarks on the Wilson July 6 op-ed? That seems to be the source of the cloud — not Fitz’s remarks about it. It is a remarkable document — Cheney wrote “or did his wife send him on a junket”? It is the initial formulation of the smear by the man who clearly knew she was a NOC.
The garrulous juror? — he seemed pretty level-headed and actually sympathetic to Libby. His remarks got a lot of play because he was the only juror to say much of anything, and even then his remarks were brief. His status as a reporter does nothing to undercut his ability to be a fair juror — I am sure this was covered in voire dire, and Libby did not strike him nor to my knowledge have a request to strike him for cause denied by the trial judge.
I thought it was clear that Wilson wrote his op-ed because he believed the administration was building a dishonest case for war and he wanted to expose that fact. It’s rather remarkable that anyone could suggest he was merely seeking “publicity,” as if writing an op-ed in the NYT generally leads to a spot on American Idol.
It’s remarkable that after all that’s happened in Iraq, some people still want to cast aspersions on those who accurately cautioned that this might not be such a good idea. It’s also remarkable how many people in the old-school Washington establishment (Wilson was originally appointed as an ambassador by Bush 41) became so stridenly opposed to the Iraq adventure at such an early stage; Brent Scowcroft is another obvious example. It kind of makes me wish that a guy like me, who wasn’t quite sure what to make of this war at the outset, had paid a little more attention. Clearly these guys were onto something.
The pardon is a very nettlesome thing because it allows a President to cover his behind on his way out the door (any President), or give a pass to a favored contributor at the last minute.
I agree the head of state should be allowed to “right past wrongs” — a miscarriage of justice fifty years ago should be able to be redressed by a current head of state.
(As a for instance, didn’t the Governor of Georgia pardon Leo Frank for the murder of Mary Phagan, which he clearly didn’t commit — even though at the time he received mob justice?)
My “fix” for the pardon power (which, I know, would require a Constitutional Amendment) would be that a President cannot pardon anyone for crimes committed during his/her term in office as President, or as Vice President if holding that office prior to the Presidency (since often, a Vice President succeeds to the Presidency).
This way, Ford could not have pardoned Nixon (but Reagan could have). Bush could not have pardoned the Iran/Contra folks (since as VP he was involved). And perhaps Clinton would not have been able to pardon Mark Rich (when were Rich’s alleged crimes — during the Clinton presidency?)
Just a thought. It’ll never happen.
As for the whole issue of Wilson being sent to investigate the Niger claim, and writing the op ed, clearly he had the credentials to go. I doubt his wife would have recommended him if he didn’t. They probably watch out for nepotism at the CIA a little closely. But her saying “Hey, Joe has been there, knows the politics, knows the people, has contacts — he’ll be able to find out about the yellowcake stuff if anyone can. Let’s send him, we’ll get the best answer” is perfectly legitimate.
And the fact he was qualified in several ways gave him “standing” to write the op-ed, with no mention of his wife’s CIA connection, which wasn’t actually germane to the mission.
The whole “his wife got him a boondoggle” is a smear that doesn’t hold water.
Steve: thought it was clear that Wilson wrote his op-ed because he believed the administration was building a dishonest case for war and he wanted to expose that fact.
Had built a dishonest case for war. Wilson’s op-ed was published in the New York Times, Sunday, July 6, 2003.
His status as a reporter does nothing to undercut his ability to be a fair juror — I am sure this was covered in voire dire, and Libby did not strike him nor to my knowledge have a request to strike him for cause denied by the trial judge.
When I heard this yesterday I could not believe it. Why would team Libby allow an ex-reporter on a jury for a trial that was, surprise, going to mostly involve reporters?
I understand what you are saying, but I don’t think anyone can be that objective. I can’t. If I was involved in a trial that involved a peer from my current or former profession they would inherently have more credibility in my eyes. Likewise, a manager/executive from that same profession would inherently have less credibility. I might tell the judge I could be objective, and I might believe it myself, but it would undoubtedly affect my objectivity. That’s just human nature and I honestly don’t believe most people can rise above it.
Why would team Libby allow an ex-reporter on a jury for a trial that was, surprise, going to mostly involve reporters?
Maybe they thought a reporter would be anti-Fitzgerald, because of the way those reporters were jailed/pressured: there was certainly plenty of sympathy for, outrage on behalf of, Cooper and Miller in the press. Maybe they were even less enamored of whoever was next on the list of potential jurors.
DMB is right about the DC Circuit. The funny thing, though, is that like the SC, they’ll have a sense about writing for the future. That is, the politics of Libby/Cheney may turn out to be less important than separation of powers questions. Suppose, for instance, Judge Kavanaugh is assigned to the panel. It’d be a test for him, to be sure.
Said reporter has a multi-page “behind the scenes” exclusive jury report on The Huffington Post. Some fascinating reading.
I have to admit that I have seriously mixed feelings about him doing so, though. I’m interested in hearing what went on, but it’s unseemly, to say the least, to have such a detailed report up on line scant hours after the verdict.
I don’t know if he was paid for it — I imagine he was. Though I can say to myself that at least he didn’t try to score a book deal out of it.
I don’t think it affects the validity of the verdict (though I’m sure this will be come a new attack point) or the impartiality of the jury. And while I’m interested to read it, the largest part of me wishes he’d just STFU.
Hmmm…what crimes did Nixon commit after December 6, 1973?
Sorry if this has already been covered, but how exactly do we know that Valerie Plame was NOC?
Ah, Article 3. Nevermind.
OCSteve: the strangest things happen with juries. In the one I mentioned, about the gynecologist who, well, whatever during his gynecological exams, one of the obvious questions asked was: has anyone here been the victim of a sexual assault? I, and only I, raised my hand. Did this keep me off the jury? No. (In fact, both sides wanted me on, but were scared that if they dismissed someone to get me on, the other side would knock me off.) (I asked them this afterwards.)
Why not? The prosecution wanted me on because I had been the victim of a sexual assault. (Luckily, just attempted rape.) The defense wanted me on because they thought I would be able to be objective, and moreover their defense was complicated and they thought I’d be able to follow it and explain it.
It was their call, one way or the other.
Sorry, Slart — you’re right. There would have been some offences that Ford could have pardoned Nixon for, as he wasn’t VP at the time.
No remedy is foolproof, but I still think that the pardon power should not be available for crimes committed during your tenure as Pres (and VP, if applicable). That would eliminate *most* quid pro quo and CYA pardons.
“Since whether Clinton had had sex with Lewinsky or not was entirely irrelevant to the case – such as it was – he couldn’t be charged with obstructing justice, and wasn’t.”
It was in fact entirely relevant because the plaintiff was attempting to show a “habit or pattern” of sexual harassment of employees. This purpose was strongly resisted by the Clinton defense before his deposition, and the judge ruled that such evidence was permissible. (That is why he got the contempt of court citation–he not only committed perjury, he did so after explictly asking the court to rule such testimony out of bounds and then attempted to subvert the court’s ruling on the issue).
“My recollection of the time was that (unusually in the US) the District of Columbia actually has a law that defines what sex is, and it does not include oral sex.”
I’ve heard this numerous times, but so far as I can tell it is an urban legend. Furthermore, I’m not sure if it would even be relevant in the face of the various court rulings.
it’s not so much any D.C. law that seems relevant; but the definition that the court was using. Here is an essay which I found in a quick google search that outlines the definition that was asked at that particular question, and outlines the grammatical construct under which Clinton technically avoided lying. (Remember that he later had to deal with charges of providing misleading testimony).
(I ran across the definition before, but I can’t rememeber where … perhaps the Starr report? At any rate, I think this site is accurate in showing the definition being used).
Also from that site, http://www.huppi.com/kangaroo/L-clintonaffidavitperjury.html presents a more troubling case of how Clinton’s sworn affadavit disagrees with his grand jury testimony; but this isn’t what most people seem to be thinking of when they accuse Clinton of perjury.
“Contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person”
“Another possibility, implied by Clinton himself, is that he did not touch her with “an intent to arouse or gratify.” He may have been “hands on,” but it might have been for his pleasure, not hers. In that case, his answers are still legally accurate. Again, this may make him sexually selfish, but that is not illegal. For critics to prove perjury, they must somehow enter Clinton’s head and prove that he did not intend to sexually gratify Ms. Lewinsky. Which, of course, is clearly impossible. Clinton may have even made a mistake by interpreting the definition too narrowly, but that is not the same thing as lying.”
“Given that understanding, the definition clearly does not include oral sex performed on Clinton. Why? Because oral sex is performed with the mouth, and “mouth” is not listed among the other body parts in point 1. Furthermore, a man receiving oral sex is generally considered to be receiving pleasure rather than giving it, and so fails the criterion “to arouse or gratify the sexual desire” of Ms. Lewinsky. Which may make Clinton sexually selfish, but that is not illegal.”
This is quite frankly crap.
Clinton did not make a mistake by interpreting the definition too narrowly. Even with the “I’m a cad” defense, it requires a deliberate misinterpretation to create a definition whereby it is possible for two consenting adults to voluntarily engage in acts where person A is having sex with person B, but person B is simultaneously NOT having sex with person A.
(Note this is NOT the ‘oral sex’ doesn’t count defense, which the court’s definition doesn’t allow for).
The idea that this is properly lawyerly is exactly why people hate lawyers. That definition doesn’t have a problem unless you torture it, twist it, and play games with it. This is parallel to the argument that if the Constitution gives the power to suspend habeas corpus under limited circumstances, but doesn’t affirmatively say that there is a habeas corpus right, that the Administration doesn’t have to worry about habeas corpus. It is an argument that only looks remotely colorable to a lawyer, and even that is a stretch.
I also note that the source you quote seems to think this is a good argument:
Now? Now? Right, now? What about now? There aren’t many real life judges who would put up with those kind of games in their courts. That is the kind of lawyering that gets you disbarred.
I don’t endorse all of the defense given; but I think it makes a good point on the grammatical antecedents in the definition. I wouldn’t have thought to fill in the actors to the generic roles in the question, but once I saw it, it makes sense (and if the other two points were struck by the judge, it was simply a mistake by the prosecution that they didn’t recast the entire definition).
I do think Clinton was almost certainly thinking through the questions, trying not to say anything more than he “had to.” But given that it was in a trial where specifics were being given (he was asked specifically, “Have you ever had sexual relations with Monica Lewinsky, as that term is defined in Deposition Exhibit 1, as modified by the Court.”), it seems a very different case than the habeas’s very tight, strict parsing of the high-level text of the constitution.
Oh, on the point of “now”, Sebastian, I do think the essay’s defense is a bit laughable.
Can we put aside the Clinton thing for a second and get back to perjury -> ob of J in the abstract? Establishing perjury is a prerequisite to finding ob of J when we’re talking about testimony, as long as the perjury concerned an issue of material fact relevant to the investigation. The ob of J charge would also require the prosecution to establish that the defendant was aware of the investigation.
Clinton stuff aside, is it clear to everyone now how simple this issue is in the Libby case? Because I’d like to get that nailed down before we get back to talking about blowjobs.
At the risk of offending Adam, I return to S. Holsclaw’s claim Clinton’s deposition in the Jones case was “provable perjury.”
Clinton’s answer to Jones’ attorneys regarding his relationship with Lewinsky was technically accurate but also deliberately misleading. The Lewinsky questions weren’t material since they did not address a pattern of sexual harrassment; the Lewinsky relationship was consentual. Even so, the Jones law suit was dismissed with the judge stipulating that if Jones’ allegations were completely true, they did not constitute sexual harrassment.
The Libby case is completely different. The CIA, after an internal investigation, referred the Plame matter to DoJ. That’s a strong indication the CIA believed a crime had been committed. Federal agencies, particularly the CIA, are loathe to involve the DoJ on a whim.
Sebastion: My take on this is that Clinton was a lawyer, on the stand. Any lawyer examining him should have been far more careful — the ability to finely parse words is part of being a good lawyer.
I view cross-examining a lawyer as being akin to asking a genie for a wish — you want to be REALLY specific.
The question was poorly worded, and Clinton a clever enough lawyer, that it actually IS debateable as to whether he really lied or not.
Me? I’d have been crude in simple and simply gone down the list of possible sex acts.
In any case, as far as obstruction goes — since that line of questioning was deamed immaterial and thrown out, Clinton’s answers (whether perjurious or not) could not be considered “obstruction”.
Dutchmarbel, is there no pardon power there now?
The last I heard about it was in the case of German war criminals from WW2 who were given a pardon just before they died, but that was in 1989 or so, and it wasn’t the queen but the government who decided.
I looked it up, and legally our Queen (or Monarch, the next one will be a king again 😉 ) can give an individual pardon. But only when you cannot appeal anymore *and* circumstances have changed, either because new evidence turned up or because the convicts health deteriorated.
Collective pardon (diminishment of prison time) was given for the last time (latest time? lastly?) in 1953, when we had “our Katharina disaster”.
It is international standard that the head of state has the right to pardon. In states with a presidial system it is therefore the head of the executive, while in parliamentary systems (e.g. Britain, Germany) the head of the executive doesn’t possess this right. In Britain it would be the Queen, in Germany it is the Bundespräsident (both essentially without formal power otherwise).
Whilst googling I read there is a sort of collective pardon in France and Germany (Weihnachtsamnestie), but if this article is correct that is only if they are less than 12 weeks from the end of their detention anyway – and the end is between december 22s and Januari 2d.
The US way seems to differ, since it seems to be applicable to any person, ‘just because’. We are a rather egalitarian society, that would not work here. I still think I do not properly understand how it works in the US because it seems like such an unfair system. The presidential pardon I mean, the way previous presidents would just remove convictions from their friends when they left office.
Though I read about recognizable US pardons (and justifiable imho) too…
Hartmut: In Britain it would be the Queen, in Germany it is the Bundespräsident (both essentially without formal power otherwise).
No. In Britain it’s not the Queen who can pardon, it’s the Crown. At least, in all the examples I can think of, it’s plainly been the Crown, not the monarch, who issued the pardon. The Queen is essentially without formal power, but the Crown has considerable formal power. The most recent example I remember hearing of in the UK was the 2006 pardoning of over 300 British soldiers who had been executed for “cowardice” during WWI.
SB,
I disagree with both of your points- that the plaintiff’s attorneys used such a poor definition & asked poorly-worded questions is not the defendant’s responsibility- this is why good lawyers get paid good money. Do you have similar objections to the fine print and legalese in contracts?
No one is arguing that Clinton “made a mistake”. Clinton carefully parsed the question and gave an honest, but misleading, answer.
Likewise, your comparison to Consitutional interpretation is misleading- we expect and allow defendants to parse questions in their favor. Therefore, they are only responsible for honestly answering the narrowest interpretation. They are IOW at no risk that someone will call their narrow interpretation “a bunch of crap” and accuse them of perjury, as you have done.
There is no reason to extend a reading of this benefit-of-the-doubt nature to Constitutional issues.
And your “now? how about now?” shtick intentionally misses the point- it isn’t whether they were copulating on the stand, it’s whether ‘do you have a sexual relationship?’ requires the inclusion of a relationship that ended far before the present. Just as ‘are you good friends?’ appears to invoke only the present or recent past, and shouldn’t require an affirmative if you were friends a long time ago but had a falling out.
otoh, the larger point is moot- Clinton said in the Jones case that he did not specifically recall being alone with Monica L at any time. This is a provable falsehood based on their activities together and his later recollections in front of the GJ. Personally, I don’t buy the “not paying attention” bit about the submission of Monica’s affidavit, but not sure that that’s provable.
OC Steve:
I forgot a bit of Plameology with regard to “Libby was the first to speak to reporters.”
The very first mention of Plame’s status was by Armitage to Woodward, but this fact did not become know until after the press conference by Fitz in which he said Libby was the first known official to leak Plame’s identity as a CIA agent.
Armitage beat Libby as the first leaker by 10 days.
Sebastian, there’s a difference between testimony being ‘relevant’ for discovery purposes, and ‘material’ for perjury purposes. A big difference.
The Lewinsky questions weren’t material since they did not address a pattern of sexual harrassment; the Lewinsky relationship was consentual.
Sexual harassment in the work place is not confined to the issue of consensual behavior among participants, but includes other workers as well. It certainly appears that Lewinski received favored treatment for jobs, etc., that other workers who were not taking care of the President’s needs did not recieve. I doubt a whole lot of the interns there went to Bill Richardson’s apartment for a job interview for the UN, or had Vernon Jordan setting up jobs at Revlon for them, or even get moved from being an intern to a paying job at the Pentagon as a GS-9.
Jrudkis, that doesn’t have anything to do with the actual Paula Jones case. Which is the measuring stick for materiality.
My post was reference whether it was sexual harassment, not materiality, though I disagree about the materiality as well, since it did establish that Clinton did have extra-marital sexual contact with subordinates, and therefore provided some weight to the possibility that he might have looked for sex from subordinates as Governor as well.
jrudkis: It certainly appears that Lewinski received favored treatment for jobs, etc., that other workers who were not taking care of the President’s needs did not recieve.
And it couldn’t possibly be that Lewinsky was a superior candidate, because – in the minds of most Americans – she was just a bimbo.
This is why women shouldn’t have sex with their bosses, of course – because a woman who does will be assumed thereafter to have got everything she achieved because of who she had sex with, not on her own merits.
In fact, this suspicion on the part of men is so prevalent that a friend of mine who was better-qualified and more professional than all the men she worked with, was assumed by them to be having sex with their manager, because she got promotions and pay-rises that they didn’t get. She wasn’t, of course: she was just better than they were. But she was a young, sexually attractive woman – and therefore couldn’t be better than them at the work they were doing.
It’s the misogynist equivalent of the racist objection to “affirmative action”: the belief that if a black person gets a job when there’s a white candidate for it, it must have been because of “affirmative action”, it couldn’t be because the black person was just better qualified.
Maybe I have to put the German pardon practice in a bit more precise way. As far as I see it there are two types of pardon. The head of state (Bundespräsident) can pardon at any time after a case was finally settled in court (exhaustion of appeal). In theory he has to give no reason. Thsi is different from the (one might say lower) pardon that simply eliminates the remainder of jail time after a certain part of it has passed (depending on the type of crime)[that is not just parole]. The right to do that rests with certain other offices (I’d have to look up which exactly. could be the prime ministers of the Länder(states)).
In my memory the head of state uses this right only very sparingly and never without an elaborate justification (and discussion with the executive and legislative branches).
At the moment there is the debate whether a RAF terrorist (behind bars for 30 years now) should be pardoned by the Bundespräsident (because it is a federal prisoner, the other option is not available).
I haven’t personally met Monica Lewinsky but personally know people who have. They thought that she was indeed not a very bright light. In this special case the suspicion of “favored treatment for ‘special’ services rendered” looks reasonable. Otherwise I agree with jesurgislac on this problem.
They thought that she was indeed not a very bright light.
And I hope, when she graduated from the London School of Economics with a masters degree, that they realized they’d been wrong.
Somehow I doubt it, though. My friend who was assumed to be having sex with her manager was very bright and very good at her job. The men who worked with her never noticed this: they were too busy registering the facts that she was sexually attractive and getting paid more than they were.
In fact, this suspicion on the part of men is so prevalent that a friend of mine who was better-qualified and more professional than all the men she worked with, was assumed by them to be having sex with their manager, because she got promotions and pay-rises that they didn’t get.
When I still worked there *always* was gossip about me having an affair with my boss. I always assumed it was what happend when you worked in a male dominated environment and did well (no complaints, but I’ve never been astonishinly attractive 😉 ).
Hartmut: I guess that’s more or less like our discussions around the pardon for Fischer, the last of the ‘vier van Breda’ in 1989. I can’t help noticing the lack of USA input about pardons though…. no one to enlighten us more? Are you all comfortable with the fact that everybody allready assumes that Libby will get a pardon around X-mas 2008? Like everybody else who happends to be in the presidents good book?
Maybe I should just add it to my list of culture clashes.
(*always* – means with every male boss I had over time. New boss = new rumours). It only changed when I started working in more mixed environments.
Marbel: (no complaints, but I’ve never been astonishingly attractive 😉 )
I’m sure you’re cute as the dickens. 😉 This company was full of computer nerds: “astonishingly attractive” to them didn’t have to meet a very high standard….
Jesurgislac,
concerning Monica I can only speak from hearsay (my friends found her not attractive at all btw). That she now has an academic degree would not necessarily proof much (cf. G.W.Bush). And I only said that suspicion looks reasonable (in the Lewinsky case), not that anything is proven.
This doesn’t make your point invalid at all.
Worse still, attractive women in the workplace are (often?) pressured to “earn” their career by granting sexual favors despite superior performance. A rule of thumb over here says that a woman must be about 50% better than her male cow-orkers to be considered “equal”. “Sleeping oneself upwards” in practice looks more often like an exploitation of the woman than an “unfair advantage” [show-biz excluded].
Jes,
That is precisely why it is considered a hostile work environment, and is therefore against federal work regulations, is a felony in the military, and causes people to lose their jobs (ie Boeing) when they have dalliances with subordinates, because it is the appearance of favoritism that is so damaging to the workplace.
But I would certainly argue that no matter haw strong she might be, nobody at that level should be meeting the UN Ambassador for a job interview in his apartment. That is not a sign of someone with superior qualifications, but superior contacts.
This company was full of computer nerds: “astonishingly attractive” to them didn’t have to meet a very high standard….
Had I mentioned I used to work in the IT industry 😉 ?
I can’t really comment upon Monica since I took great care not to follow the story at the time. I must admit that the impression I had from my limited exposure was that she was very very naive. That does not say much about her intelligence though.
dmbeaster: The very first mention of Plame’s status was by Armitage to Woodward, but this fact did not become know until after the press conference by Fitz in which he said Libby was the first known official to leak Plame’s identity as a CIA agent.
Thanks. Hadn’t the FBI completed interviewing Armitage before Fitz took over?
The FBI had done several interviews by that time. By the time Fitz came in, Libby had already started spinning, and he couldn’t ignore it.
Whether or not Armitage was first is not the point. Fitzgerald was charged with ascertaining whether or not any laws were broken with the revelation of Plame’s CIA status. The CIA thought there might be.
When Fitz got in, it was probably apparent that Cheney, Rove, Libby and others (like Fleischer) got together and decided to go after Wilson in retaliation, and to use his wife’s CIA connection against him.
That sure *sounds* like “conspiracy” and sure *sounds* like a deliberate airing of her CIA status without sufficient regard to how secure her status was. Fitzgerald was bound at that point to investigate this *potential* crime. He would have been derelict to say, “Well, Armitage did the Novak leak so I’m going home.”
The fact that Novak was the one who printed it, doesn’t alter the fact that there was a coordinated plan to spread certain information. If anyone mentioned Plame to a journalist, with the intent to cause harm, or with reckless disregard to her security status, then a crime was committed — whether the journalist printed it or not.
No charges were brought about the “outing” — which I take as meaning that Fitzgerald felt that something unlawful occurred but couldn’t be proven in a court of law with the evidence he had (that’s my interpretation).
Even the jurors who are sympathetic to a pardon are saying that they feel sorry for Libby *because the wrong guys are getting blamed for what was wrong.*
OCSteve: You need to keep one tidbit in mind:
Fitzgerald has been very forgiving towards people with evolving memories. Rove was on the same hook Libby was, and finally cut a deal in which he’d actually tell the bloody truth in return for not getting prosecuted for the lying and obstruction he’d done before.
My recall of the pre-indictment stage was that Libby also had that oppurtunity.
It wasn’t like Fitzgerald was being harsh and unforgiving — Libby just decided to stonewall, whereas Rove gave Fitzgerald what he wanted — the truth.
Either the truth was worse for Libby than 4 felony convictions, or Libby was protecting someone. (Note that: ‘Libby actually forgot’ is not what I consider a reasonable possibility.)
“Jrudkis, that doesn’t have anything to do with the actual Paula Jones case. Which is the measuring stick for materiality.”
It has everything to with the Jones case. It suggests that Clinton had a pattern of having sex with subordinates and was willing to reward them with on-the-job perks and potential for advancement based on their non-job-related activity. That type of behaviour is at the very center of sexual harrassment cases because the flip side–not giving sexual favors and being at a workplace disadvantage to those who do–is one of the huge pressure points that such bosses use to coerce ‘consent’. This analysis led to an overreaction in sexual harassment law which made the power imbalance presumptively lead to sexual harrassment questions.
That is material to the case.
“I disagree with both of your points- that the plaintiff’s attorneys used such a poor definition & asked poorly-worded questions is not the defendant’s responsibility- this is why good lawyers get paid good money.”
I don’t agree that the definition was a poor definition. Any definition can be tortured and twisted if you are as determined to do it as Clinton was. We saw that with ‘is’. In the end, there is no series of words that can’t be gamed around or played with. The interpretation given by the link above (which by the way IS NOT ENDORSED BY CLINTON AS HIS INTERPRETATION) is ridiculous. If I can bifurcate sex among consenting adults such that they can be physically touching, both willing, but only one of them is having sex (especially in such standard cases as a blow job), it requires a bit more definitional magic than was actually used in the explanation.
Aren’t you missing a distinction between the sort of thing that might generally be relevant in sexual harassment cases, and the sort of thing that actually was material to the Jones case? The Jones case was, as best I recall, eventually dismissed because regardless of anyone’s credibility, nothing she alleged was sufficient, even if assumed to be true, constituted sexual harassment. Given that, nothing about Clinton’s testimony was material.
“Given that, nothing about Clinton’s testimony was material.”
I don’t think that is the standard. I believe that it is ‘material to the allegations’, and as the allegations were of sexual harrassment, the perjury was about material facts. I realize that ‘no contest’ isn’t technically an admission of guilt, but note that Clinton didn’t fight his disbarment.
Now on a different view, I’m happy with the way things turned out–the definition of sexual harrassment was far too broad for my taste, and the Clinton experience seems to have soured many liberals on pushing the hyper-broad interpretation.
The point is that the allegations were determined by the court not to be of sexual harassment — the case was dismissed on those grounds.
Now on a different view, I’m happy with the way things turned out–the definition of sexual harrassment was far too broad for my taste, and the Clinton experience seems to have soured many liberals on pushing the hyper-broad interpretation.
And this I’ve heard fairly often and don’t understand at all. Jones’ allegations were dismissed because she didn’t allege anything materially professionally negative happening as a result of the interaction she alleged with Clinton. You may be able to dredge someone up taking this position, but I’m not aware of any mainstream liberal position before the Jones case that plaintiffs should be able to recover damages for sexual harassment when they don’t claim to actually have been damaged.
And I just want to reiterate my position to avoid confusion: I think Libby was guilty of perjury and I think Clinton was guilty of perjury. I certainly don’t hold the ridiculous position that Libby wasn’t and Clinton was.
I also think that perjury is deeply damaging to the system and should be harshly punished.
My beef is with a separate obstruction charge. Perjury already has to be about a material fact. In that sense, obstruction is built in to a perjury charge.
“And this I’ve heard fairly often and don’t understand at all. Jones’ allegations were dismissed because she didn’t allege anything materially professionally negative happening as a result of the interaction she alleged with Clinton. You may be able to dredge someone up taking this position, but I’m not aware of any mainstream liberal position before the Jones case that plaintiffs should be able to recover damages for sexual harassment when they don’t claim to actually have been damaged.”
That wasn’t really my point. My point was that in the 1990s the idea was of shifting the burden of proof against the person in power in an employee-employer relationship. That such relationships are so fraught with consent issues that they should be presumed to involve coercion.
And Jones’ case was dismissed because it wasn’t deemed to be harrassment (what now seems to be the one free pass rule), not becaue there was no damage.
this company was full of computer nerds: “astonishingly attractive” to them didn’t have to meet a very high standard
ahem.
It wasn’t deemed to be harassment because there was no alleged damage. Taking her allegations as true, if the incident she described had taken place, and immediately afterward an order had come down from Governor Clinton’s office to demote her, the case would have gone forward.
I realize that ‘no contest’ isn’t technically an admission of guilt,
It isn’t even non-technically an admission of guilt. Having gone through what he just had with the impeachment and trial, do you think Bill Clinton maybe wanted to avoid going through the same damned thing again, seeing how people were gunning for him? Or do you think maybe “no contest” was the easiest thing to do at that point?
but note that Clinton didn’t fight his disbarment.
Being as he was so eager to begin a law practice in Arkansas and all.
That type of behaviour is at the very center of sexual harrassment cases because the flip side–not giving sexual favors and being at a workplace disadvantage to those who do–is one of the huge pressure points that such bosses use to coerce ‘consent’.
I’ve never heard of this theory before, that you can create a hostile work environment merely by engaging in a number of consensual workplace relationships. Can you give me any examples?
Astra AB, the cornerstone for all sexual favoritism cases, see >a href=”http://www.a1articles.com/article_13642_15.html”>here for instance:
See the EEOC on the topic here, including:
also from the EEOC:
This used to be a common line of attack in harrassment cases. It isn’t as common any more because your average corporation isn’t as permissive. BTW, for a little chuckle, see who signed the EEOC report.
Again, the connection with the Jones case is weak, given that I’m not aware of any allegations of other sexual relationships between Clinton and women in Jones’ workplace.
This conversation makes me a little testy, because I am interpreting your position, perhaps unfairly, as being that liberals hypocritically changed their views of sexual harassment when their darling Clinton was attacked. The Jones case didn’t have any effect at all on my views of sexual harassment, because she just didn’t have much of a case by any standard.
“The Jones case didn’t have any effect at all on my views of sexual harassment, because she just didn’t have much of a case by any standard.”
I don’t think it was the Jones case per se. I think it Lewinsky. “The personal is political” got hit pretty hard by the feminist response to Lewinsky. The concept that the personal might be private and not political gained strength that might have taken quite some time to reassert otherwise.
Sebastian: I don’t think it was the Jones case per se. I think it Lewinsky. “The personal is political” got hit pretty hard by the feminist response to Lewinsky.
“The feminist response”? Would that be like “the Christian response to Boykin”, or “the Republican response to Abu Ghraib”?
I don’t think it was the Jones case per se. I think it Lewinsky. “The personal is political” got hit pretty hard by the feminist response to Lewinsky. The concept that the personal might be private and not political gained strength that might have taken quite some time to reassert otherwise.
Once again, I disagree. As Jes said, there isn’t one feminist response to any situation. But one feminist response, that allowed for thinking that the Lewinsky affair was, while kind of a shitty thing for Clinton to do personally, not anything that made it hypocritical for a feminist to continue to support Clinton, was to note that a necessary corollary to “No means no” is that an uncoerced yes means yes. While differential positions of power can raise issues of coercion where they aren’t obvious without analysis, the facts of the Lewinsky affair make it clear that whatever misconduct Clinton committed, coercing Lewinsky into undesired sexual behavior wasn’t among them.
I can still think that the personal is political without thinking that every category of personal sexual misbehavior necessarily constitutes a political sin, and so, I think, can most feminists.
OC Steve: Thanks. Hadn’t the FBI completed interviewing Armitage before Fitz took over?
Good point. The Woodward disclosure only became publicly known a year after the Fitz presser — did Armitage tell the FBI much earlier? Armitage was almost certainly interviewed before Fitz got on board as Armitage indicates that he realized he was a Novak source in October, 2003 while reading a Novak article describing his sources. (Fitz on board end of Dec., 2003). He went straight to the FBI at the time.
Did Armitage tell the FBI earlier in 2003 that in addition to Novak, he told Woodward? I cannot find any public disclosure of this — what Armitage told the FBI about Woodward in 2003 was not something discussed in the trial, nor can I find any other reference to it. Perhaps it is discussed in Hubris, the Isikoff/Corn book.
It is entirely possible that since Armitage forgot he told Novak, he still did not recall Woodward disclosure even after being reminded of the Novak disclosure. Woodward had taped his conversation with Armitage, and yet Woodward did not reveal that tape and his role until some time in 2006. I am not aware of a prior disclosure from Woodward. I have assumed that the Armitage to Woodward leak did not become known until Woodward disclosed it. Armitage is a notorious gossip — it makes sense to me that he forgot about the numerous times he flapped his jaw on this and still did not remember Woodward even after he remembered Novak. But I don’t know.
What I have always wanted to know (and which I do not think has been publicly revealed by anyone) is how Armitage got his Plame info in the first instance. Armitage is still an administration ally who has talked as if he was the primary and accidental cause of the problem, which has been helpful to the apologist line on this, but he has never volunteered this critical and probably damning fact. There is strong evidence that came out in the trial that Cheney/Libby dug up the Wilson/Plame connection first in early June, 2003 and started the “his CIA wife got him the junket” spin before anyone else. It is not plausible that others independently generated the story (particularly since in that time frame, Wilson had not gone public — Cheney/Libby figured it out by taking clues from the Kristoff/Pincus articles and getting the CIA to tell them the details in early June, 2003; Cheney/Libby were already leaking the Wilson/Plame connection before Wilson went public with his NYTimes July 6 op-ed). I think it is weird that Armitage, while talking freely about his role is disseminating the leak, has remained entirely mum as to how he was himself tipped.
I am sure that Armitage told the FBI and Fitz how he was tipped, but that fact has never been revealed to my knowledge. Armitage was reportedly not indicted because there was no proof that he knew that Plame was covert — he only knew she was CIA and passed on the gossip that she had arranged the Wilson’s trip as a junket (the original Cheney/Libby smear line).
The same was true of Fleisher, who passed on the gossip after being informed by Libby, but was allegedly not aware that she was covert CIA. This seems to have been a common pattern concerning the leak — that many of the White House leakers got only the smear line from Cheney/Libby without the info that Plame was covert. This may also be true of Rove — there has not been any public disclosure of this concerning Rove’s state of knowledge. But he was probably not the originator of the storyline (since so many arrows point to Cheney/Libby), and I have no idea what the evidence is as to whether or not Rove knew Plame was covert.
Indeed, one of the most important undisclosed facts is what Rove and others told the FBI and Fitz about how the Plame storyline was spread amongst the White House personnel and became part of the smear/leak campaign. This is another footnote to the integrity of Fitz in contrast to Starr, who happily leaked countless details as part of a political war against Clinton.
Perhaps these details will emerge as part of a congressional investigation. My own hunch is that so much of the Plame leaking was not criminal because very few knew that Plame was both CIA and covert (or classified, or whatever her exact status is, which can only be inferred for now).
This shows how damning were Libby’s lies and obstruction — he clouded the facts as to the original source of the leak which would have been the people who DID known that Plame was covert and that it was very wrong to exploit her relationship with Wilson for political purposes.
Sebastian:
And I just want to reiterate my position to avoid confusion: I think Libby was guilty of perjury and I think Clinton was guilty of perjury. I certainly don’t hold the ridiculous position that Libby wasn’t and Clinton was.
I also think that perjury is deeply damaging to the system and should be harshly punished.
My beef is with a separate obstruction charge. Perjury already has to be about a material fact. In that sense, obstruction is built in to a perjury charge.
The issue re Clinton perjury is materiality. He clearly lied under oath, but the materiality standard is highly doubtful in order to also show perjury. The contempt of court sanction and the bar sanction were based on lying under oath without regard to materiality (as they should be), but the criminal charge of perjury would probably have failed due to materiality.
As to Libby, the obstruction charge (page 11) was based on lying to the grand jury AND having the corrupt intent to thwart the investigation. It does involve a high degree of duplication with perjury, but involves a different element. This overlap should hopefully be taken into account in sentencing — i.e., the sentencing for the perjury and obstruction should be concurrent because of the similarity.
It is very common for the same ball of misconduct to involve multiple crimes with similar elements. It is not “piling on” for Libby to be guilty of both, but it would be if the sentencing was greatly enhanced because the same ball of misconduct was allegedly sentenced far more harshly as multiple independent crimes. Exactly how it works for Libby is unknown to me — you would have to ask someone with federal sentencing experience.
I am sure that Armitage told the FBI and Fitz how he was tipped, but that fact has never been revealed to my knowledge.
Armitage talked to Woodward on June 13, so it seems plausible that he learned about Plame from the June 10 INR memo. Maybe this has never been confirmed, but I thought it was conventional wisdom among Plameologists.
Well this should be interesting. Plame to testify before congressional committee next week.
“But one feminist response, that allowed for thinking that the Lewinsky affair was, while kind of a shitty thing for Clinton to do personally, not anything that made it hypocritical for a feminist to continue to support Clinton, was to note that a necessary corollary to “No means no” is that an uncoerced yes means yes. While differential positions of power can raise issues of coercion where they aren’t obvious without analysis, the facts of the Lewinsky affair make it clear that whatever misconduct Clinton committed, coercing Lewinsky into undesired sexual behavior wasn’t among them.”
Sure, that is how it turned out. That was not by any means the emphasis of the sexual harrassment argument before Clinton. The fact that such an argument became important to explaining the (general) feminist position on harassment as opposed to some footnote at the bottom of the discussion (if included at all) is a giant shift that happened right about the time of Clinton. The emphasis BEFORE Clinton was much more on how an imbalance of power strongly implied coercion–enough that claims of consent should be considered highly suspect. The nuance of now, wasn’t very well explored publically by feminists until Lewinsky was revealed.
Two further points on that. First, I think the more nuanced position is correct, so I don’t blame anyone for eventually getting there. Second, to purely internal feminist debates, perhaps that nuance was already there. But if it was, it wasn’t on much of the game face to the outside world. So I’m not charging ‘hypocrisy’ or ‘stupidity’. I’m talking about a change in public emphasis in the rhetoric.
Second, to purely internal feminist debates, perhaps that nuance was already there.
See, I’d say that a much better and more accurate way of putting that is that your attention to some feminists’ responses to the Lewinsky matter made you aware that their consistent position on sexual harassment made more sense than you had previously realized.
Or that the more nonsensical positions weren’t really as widespread as believed….
“See, I’d say that a much better and more accurate way of putting that is that your attention to some feminists’ responses to the Lewinsky matter made you aware that their consistent position on sexual harassment made more sense than you had previously realized.”
But not as much of the public part of the debate, sure. The public part of the debate changed.
Do you mean that the actual facts of the Lewinsky matter, and the reaction people had to those facts, changed the public perception of to what many feminists’ thinking on sexual harassment was? Sure.
Steve:
Armitage talked to Woodward on June 13, so it seems plausible that he learned about Plame from the June 10 INR memo. Maybe this has never been confirmed, but I thought it was conventional wisdom among Plameologists.
Thanks for the tip — this does seem to be the current speculation; that the June 10 INR memo that Libby had ordered was sent to Armitage when he made a request for similar info about Wilson. But I could not find any hard confirmation, or that this was his sole source (if it was his source for the info). The memo is public now — it does mention “Wilson’s wife” as CIA without identifying her status.
I wonder if Armitage at any point was part of the buzz about “Wilson’s wife sent him” or if he independently came up with the point.