Fitzgerald Plays Hardball 

The Plamegate special prosecutor is just getting started.

The indictment of vice-presidential aide Lewis "Scooter" Libby -- only Scooter Libby and only on investigation-related charges (perjury, obstruction of justice, lying to investigators) -- is bound to be misinterpreted (read: spun) by ideologues at both ends of the political spectrum.

Lefties (in addition to being disappointed that their favorite bete noire, presidential main-man Karl Rove, has seemingly evaded the prosecutor's net) will feel that some of the wind has been knocked out of their sails because no crime was charged in connection with the underlying revelation of erstwhile CIA agent Valerie Plame's identity. And righties will revel in that same fact.

But there is no reason for either joy or sorrow in Mudville. Mighty Casey (Fitzgerald) didn't strike out. He has, in essence, only taken a base on balls. And just as a base on balls doesn't count as an at-bat, in some ways Fitzgerald still hasn't stepped up to the plate. I suggest that what he may have done is cork a bat for his next up.

The obstruction charged late last week against Libby, as the grand jury's time was running out, prevented the prosecutor from furnishing the one element of the underlying crimes that may be the most difficult to prove: mens rea, as it's known in the criminal law (i.e., a culpable state of mind). But be assured: The last out in this game is still to come.

First, we know that Fitz intends to continue the investigation, albeit with a new grand jury, and the new grand jury won't be starting from scratch -- not by a long shot.

Second, the fact that Libby wasn't indicted for any of the possible classified-information-related offenses doesn't mean he still can't be, since the special prosecutor has the prerogative of getting a superseding indictment from the new grand jury. Thus, Libby is still technically under the gun. And neither Karl Rove nor a variety of others whose participation was described in shadowy terms are as yet off the hook.

The first 25 paragraphs of last week's indictment of Libby laid out a factual scenario, replete with the identity (if not by name, then by title) of the entire cast of characters. When carefully parsed, the indictment seems to set out the elements of at least one of the underlying classified-information crimes, if not both.

For example, the indictment indicates that the White House was well aware that Valerie Plame (spouse of envoy Joseph Wilson, whose pre-war debunking of a uranium link between Niger and Saddam Hussein had clearly angered the administration) was a covert operative.

The indictment also makes it clear that Plame's status at the CIA was classified and that disclosure of such status could jeopardize national security.

Further, the indictment states that Libby was authorized to have access to classified information and takes pains to point out that he was obligated not to disclose that information and that he had signed a "Classified Information Nondisclosure Agreement" -- the primary purpose of which was to let its signatories know that disclosure of classified information is a big no-no.

Voila! All of the elements -- at least of the Espionage Act, if not the Intelligence Identities Protection Act -- have been made out in the indictment. So why go to all the trouble of setting up the factual predicates for violations of the classified-information statutes (especially when he didn't have to) and then stop short of charging anyone with them?

The explanation Fitzgerald gave during his press conference (that he was balancing the interests of the First Amendment with the wisdom of charging the crime) doesn't fly. And his expressed concern that the U.S. statute governing classified information not become subject to the loose application that has characterized its British analog (i.e., the "Official Secrets Act") also rings hollow, especially given the fact that during his press conference he trumpeted the serious violations of national security the conduct in this case appears to have constituted.

No, the real reason Fitz laid out as much factual detail as he did was to show the world (and in particular, the world within the White House) that he has the goods and that he won't hesitate to drop the dime on some additional malefactors, particularly Vice President Dick Cheney. Let's face it: Libby is only the consigliere to Cheney's don.

Even though the threat of spending 30 years in the pokey will be a powerful incentive for Libby to cut some kind of deal that might include turning on his boss, the possibility of additional charges of revealing classified information being made, particularly against Cheney, is even more powerful, since at this point Cheney doesn't appear to be at risk of an indictment.

This much is certain: Libby's case will never get to trial, primarily because such a trial could become precisely the kind of exposé of the administration's motives and actions in the run-up to the war that Bush and Cheney were worried the indictments would bring about. It would be their worst nightmare to have their war machinations presented to a jury of 12 ordinary citizens in the District of Columbia (read: predominantly African Americans). They would be sitting in as proxies for the families of the 2,000-plus military fatalities in Iraq and the plurality of the country that opposes the war. The risk there is not just exposure to the possibility of conviction in Washington, D.C., but a subsequent prosecution in The Hague as well.

Yes, my friends, Fitz is about to grab the pine-tar rag, choose another very special piece of lumber, and step back into the on-deck circle for the home run that is sure to follow. Batter up!

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