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October 2, 2005
Will Fitzgerald Attempt A Conspiracy Indictment? (Update)

Most of us have wondered why Judith Miller's testimony about Scooter Libby held such importance to special prosecutor Patrick Fitzgerald that he allowed her to walk away from a contempt charge merely to provide what appears to be corroborative testimony to what Libby has already told a grand jury. Miller wouldn't talk until Libby and his attorney practically had to beg her to do so, as Power Line notes with their discovery of the letters sent by Libby's attorneys to Bob Bennett, who represents Miller. Fitzgerald wound up giving Miller the same deal he gave Glenn Kessler at the Washington Post, which only required them to testify on a narrow basis about specific sources.

Now the Post reports that inside sources in Fitzgerald's office tell them that the strategy has evolved. Instead of finding an act of criminal behavior, which they have apparently not found, Fitzgerald wants to create a conspiracy to commit an overall criminal end -- exposing Valerie Plame in retribution for Joseph Wilson's outspokenness -- by comitting a series of non-criminal acts:

Many lawyers in the case have been skeptical that Fitzgerald has the evidence to prove a violation of the Intelligence Identities Protection Act, which is the complicated crime he first set out to investigate, and which requires showing that government officials knew an operative had covert status and intentionally leaked the operative's identity.

But a new theory about Fitzgerald's aim has emerged in recent weeks from two lawyers who have had extensive conversations with the prosecutor while representing witnesses in the case. They surmise that Fitzgerald is considering whether he can bring charges of a criminal conspiracy perpetrated by a group of senior Bush administration officials. Under this legal tactic, Fitzgerald would attempt to establish that at least two or more officials agreed to take affirmative steps to discredit and retaliate against Wilson and leak sensitive government information about his wife. To prove a criminal conspiracy, the actions need not have been criminal, but conspirators must have had a criminal purpose.

Then Jim VandeHei and Walter Pincus throw in this beaut of a disclaimer:

Lawyers involved in the case interviewed for this report agreed to talk only if their names were not used, citing Fitzgerald's request for secrecy.

Which begs the question: when will Fitzgerald start investigating the leakers in his own office, and did they have an overarching criminal purpose in talking to the Washington Post, even if the leak was technically legal? Fitzgerald's operation should be held to a similar standard, one would think, since it involves secret grand jury testimony which the attorneys do not have the privilege to reveal. (Witnesses can speak openly of their own testimony in most cases, but not the attorneys.) Note: see correction below.

The entire idea reeks of desperation, and the Post article doesn't help by getting key facts incorrect and stretching others to the breaking point. If Fitzgerald cannot find a single act of criminal behavior, then he almost assuredly cannot establish the mens rea necessary for a criminal conspiracy. For a conspiracy to exist, it has to involve the explicit intent to break the law. If no laws get broken in the commission of this conspiracy, it presents a prima facie argument against intent altogether. If prosecutors could get convictions by warping conspiracy laws in such a manner, then anyone could get convicted of almost any kind of conspiracy at any time.

VandeHei and Pincus fail to note a few things in their article, chief among them that Joseph Wilson serially leaked secret government material and lied about its contents. The Senate Select Committee on Intelligence reached that conclusion in its report on Iraq War intelligence, and names Pincus himself as one of the dupes Wilson used to get out his misinformation. Why didn't Pincus bother to mention that? And why isn't Fitzgerald investigating Wilson and Plame for those leaks (the other dupe was NY Times Nicholas Kristof) for a possible CIA conspiracy to illegally undermine the foreign policy of the duly elected American government?

The Post also claims that the Niger intelligence "was central to the White House's rationale for war," when plainly it was not. The vast majority of the intelligence from most Western nations had concluded that Saddam still had WMD, and that his lack of compliance with the sixteen UN resolutions on full, verifiable, and permament disarmament demonstrated that he still retained that capability. Moreover, the trip that Wilson took actually corroborated that conclusion, as the prime minister of Niger told Wilson that the only purpose of a secret Iraqi delegation he could divine was to trade for yellowcake uranium -- which Wilson admitted to the SSCI bolstered, not undermined, the case for war against Iraq.

If indeed Fitzgerald has decided on this strategy, then he has embarked on a foolish and dangerous expansion of conspiracy law. The Washington Post, meanwhile, continues to embark on its policy of half-truths on the Wilson-Plame story in order to cover up its position of supine gullibility in regards to Joe Wilson. Why Walter Pincus has remained on this case as a reporter is anyone's guess, but as long as the editors of the Post continue to use him in such a fashion, their reporting will continue to be suspect.

CORRECTION: I misread the excerpt -- the Post uses unnamed attorneys representing witnesses who talk about what they've heard from Fitzgerald's team ... surmising that Fitzgerald wants to use this strategy. This seems even thinner than it did before.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at October 2, 2005 9:05 AM

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» The Big Question In The Judy Miller Matter from PoliPundit.com
Are the television pundits missing the story on the Judith Miller story? The debate and discussion I heard all day today and read several places this weekend revolved around a miscommunication between her lawyer, Floyd Abrams and Scooter Libby's law... [Read More]

Tracked on October 2, 2005 12:47 PM

» Plame Game - Redux from Macmind - Conservative Commentary and Common Sense
As has been going on since this manufatured scandal has started, the Washington Post is speculating about "What's Fitgerald is going to do?" [Read More]

Tracked on October 2, 2005 2:02 PM

» It's Miller Time... for questions from scoopstories
(Update: The item is posted here.Meanwhile, this Washington Post piece has some interesting new info. And this is a great piece at PressThink on a meeting between bloggers and Big Media) The best piece I've read yet on the Judith [Read More]

Tracked on October 2, 2005 4:46 PM

» Conspiracy Theory from Speak Easy
The purpose was to discredit Joe Wilson for the lying liar who tells lies that he is, by exposing the cronyism of his wife getting him the Niger trip. As one lawyer noted: answering a critic is politics, not criminal behavior. The purpose was not c... [Read More]

Tracked on October 2, 2005 8:31 PM



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