Saturday, July 01, 2006

emptywheel: cheney's guilty

emptywheel: anatomy of a smear. 3.7
In other words, Fitzgerald (n the indictment) doesn't hint at what he knows about a larger conspiracy, if there is one. But he does include clear threats to three people--Rove (in the form of designation as Official A), Libby (in the form of a potential IIPA violation), and Cheney (in the form of hints that Fitzgerald knows of his deep involvement in the leak)--without revealing all the details he knows. I believe the subsequent events, whatever they might be, were overshadowed by those three threats.
So two of Libby's three big name lawyers were instrumental at limiting one individual trial from bringing down entire Republican conspiracies in the past. That, in and of itself, indicates the understanding Libby's team brings to his trial: as the burglars tried to on Watergate and North tried to with Iran-Contra, Libby's trial must limit the damage to the larger conspiracy.

What better person to manage the PR and fund raising side of this, then, than Barbara Comstock, who (with Mark Corallo) seems to be the RNC's designated gal in charge of limiting the damage one obscenely corrupt Republican's trial can have on the rest of the obscenely corrupt Republican project.
Luskin appears to object to the notion that Rove got a deal, while insisting all the while that Rove was cooperating voluntarily. Which just leaves it up to you to imagine what Luskin might mean when he talks of Rove's "cooperation."
However, by revealing these items to the public, Fitzgerald is revealing the fundamental truth of his investigation: Dick Cheney authorized Libby and strategized with him to leak Plame's identity. While I don't know whether Fitzgerald will ever be able to prove it legally, he has provided ample evidence to show that Libby has been lying to protect Dick, and with Dick, the deliberate efforts the two of them made to expose a spy.
By showing the inconsistencies with Libby's NIE story, Fitzgerald started to draw out Libby's central lie--one Fitzgerald probably does not yet have evidence for, but one that is increasingly clear is a lie. Libby was ordered to leak something to Judy on July 8, 2003. He says he was orderd to leak the NIE. But that doesn't make any sense....

Libby says he was told to leak the NIE on July 8. But he had already leaked it. Therefore, it is completely ridiculous to think he would be ordered to leak it again--much less that he would get permission specifically from the President when he hadn't done so in June, when he leaked it to Bob Woodward. So if he wasn't ordered to leak the NIE, then what was he ordered to leak?
There are just a few shitty lies standing between Dick Cheney and full culpability for willingly leaking the identity of a CIA spy. I don't know whether Fitzgerald believes he can break through those shitty lies. But it's pretty clear they're nothing but shitty lies.


Wake up said...

I don't think the real issue is whether Fitzgerald can link Cheney to the decision to identify Plame. I think the issue is more likely whether he thinks he could show both that Plame was within the ambit of the statute and, more importantly, show the requisite criminal intent.

We KNOW Fitzgerald can show both Libby and Rove identified Plame to others as a CIA official and we know (well, all of us but the crazies) he has not indicted THEM for that.

Why not? Most likely because even if he feels he can esatablish Plame acted as a a covert agent overseas within the applicable period and had not been previouisly disclosed, he would still have to show that Rove/Libby/anyone knew she was within the reach of the statute and willfully disclosed her status understanding it would reveal classified information related to national security.

This is not merely a specific intent crime; it has a heightened intent requirement compared to most specific intent statutes.

If Fitzgerald hesitates to indict people he can show are directly responsible for disclosure, it's not likely he will indict someone who directed it be done.

lukery said...

thats the worst news i've heard all day.

the investigation appears to be ongoing though, right?

Wake up said...

I doubt Cheney faces anything more than perhaps some unpleasant testimony , but if he is indicted for anything it would more likely be for his role in the cover-up.

If it coyuld be shown he encouraged Libby (or someone else) to lie to investigators or before the GJ or concealed/destroyed evidence, etc., he coould be charged for that.

The investigation is ongoing, and you never know for sure what libby or someone else might do under pressure.

lukery said...

thnx WU.

if Cheney does get charged with any cover-up offences, can that cover-up then be used to infer the 'heightened intent'?

Wake up said...

Possibly. That would require a very fact specific inquiry. Under some circumstances post hoc efforts to conceal an act could be considered relevant as to state of mind at the prior time of the act.

For example, if a person killed another person, subsequent efforts to dispose of the body, weapon, or other evidence would usually be considered evidence of consciousness of guilt and admissible to prove lack of mistake or accident. However, evidence of the cover-up might not be relevant to proving higher degrees of homicide.

In the abstract one can't really say whether the efforts to hide the act would be probative of the the existence of malice at the time of the killing (which distinguishes murder from manslaughter) and it would be somewhat less likely it would be probative of premeditation (distinguishing first from second degree murder under common law).

It would depend not only the fact that SOMETHING was concealed (as that would only necessarily show the person felt he had done SOMETHING wrong and not necessarily committed a crime with a "heightened" intent requirement) but more particularly on WHAT was concealed and how. For instance, if the killer made an after the fact effort to conceal the fact he brought the weapon with him to the scene of the killing (as opposed to just concealing the weapon) that would almost certainly be considered probative on the issue on the issue of premeditation and undercut any argument he might make that he did not premeditate.

In a case such as this one could imagine a scenario where during a proceeding brought for the "cover-up" evidence of what was concealed and how and why it was concealed would be probative of the state of mind at the time the act was committed.

Here, thought, to me, it seems much of that type of evidnce is already on the table, so to speak. The evidence of people claiming, after the disclosure was made to forget saying and doing things, the claims of having learned Plame's identity from sources other than classified reports, etc., might be considered probative of state of mind as those claims (quite conveniently) do seem to bear directly on state of mind and quite conveniently so. If disbelieved, the fact those claims could be used to infer the existence of a certain state of mind existed when the act was committed. But, I think one can infer Fitzgerald is convinced MORE would be needed to successfully prosecute anyone for the act of disclosure because despite the incriminating evidence we know exists he has not chosen to do so and (unless one thinks he is abetting a cover-up) that would be based upon two primary considerations:

The existence of evidence Plame held a status to which the statute applied and criminalized disclosure; and the existence of evidence to satisfy a jury beyond a reasonable doubt that the persons who disclosed her identity KNEW she held such status by virtue of access to classified information and then wilfully disclosed her identity knowing the disclosure breached the disclosure law.

It seems to me a prosecution[s] for the disclosure itself will only happen if the "cover-up" goes further than we now know AND it unravels under pressure. If, for instance, Libby flips and Fitzgerald should learn from Libby that before the disclosures Cheney told him:

"Wilson's wife is a CIA agent and helped select him for the Niger trip. If the public knew that his own wife made the decision to send a political hack with no experience in such investigations blundering around over there in a comically amateurish fashion we can nip this in the bud. But, her status is protected and, even though she's basically another political hack, we're not supposed to disclose she works for the CIA because she's recently been a covert agent overseas.

"But, damnit, we can't wait for her status to come out through the standard declassification process because we need to nail that lying bastard right now before his version takes root.

"So here's what we will do. You'll just casually mention in deep background conversations with our friends in the media that she she "works for the CIA" and got the agency to send her husband without giving any indication we know her actual status so we can later deny that we knew she was or had recently been a covert agent overseas. That will keep us in the clear if somehow this little scheme should backfire on us, even though I doubt that will ever happen. Float that around to a few select reporters we can trust. But, be very careful because this is a delicate matter."**

Short of something that direct, the intent element would be very hard to establish. Even with that there would still be other difficult legal issues involved in any prosecution under the disclosure act and because such statutes are so very rarely used no one has any real guidance as to how the courts might decide those issues because there is no case law precedent.

I think it is a pipe dream to expect any prosecdutions based on the act of telling people Plame worked for the CIA. In fact, if the white House had been as shrewd as many seem to think, it obviously would have been better for them to tell the truth to the investigators from the start and this all probably would have been over many months ago with no criminal prosecution and written off by the vast majority of people as another instance of a bunch of scheming political hacks fighting dirty with each other (Which is a pretty apt description.)

lukery said...

thnx WU.

A great help.

it's not inconceivable that the requisite discussion you outlined is in the 250 pages of emails.

there's presumably a reason that those emails went 'missing', and there's presumably a reason that they were 'found'
(although we dont know whether they pre or post-date the outing)

Wake Up said...

Well, anyone stupid enough to put something like that in writing, let alone transmit it over an e-mail system from which it can be retrieved, deserves to be prosecuted fro criminal stupidity if nothing else. (That's a joke.)

lukery said...

well, sure.

but they apparently wanted to 'lose' the emails for some reason. the risk of obstruction charges et al was obviously worth something to them