Monday, October 31, 2005

Perjury update

Here's an update on the post "Calling all lawyers":

The call has been answered. I consider the following e-mail response from a trusted legal source to be definitive:

There's no question that perjury can be prosecuted if the defendant lied about something that was material to the investigation, even though the investigation did not otherwise result in charges being brought.

As for how often such cases are prosecuted, the reality is that perjury is a relatively rarely prosecuted crime. No doubt the vast majority of people who lie under oath, in trials, let alone grand jury hearings, are not prosecuted. However, Libby certainly should have expected that in this kind of high-profile, no-stones-unturned investigation, any perjury as stark as his allegedly was, would be prosecuted.

In the previous thread, commenter "the Unknown Blogger" offered the following statistics about perjury prosecutions, which dovetail neatly with the above information:

There are relatively few federal perjury prosecutions. According to the Bureau of Justice Statistics, in fiscal year 1999 there were 126 perjury defendants disposed of in U.S. District Courts. One hundred and six of these defendants were convicted and 80 imprisoned. The average sentence was 22.9 months.

And I'm still wondering about the observation of commenter Holmes, who wrote:

In this instance, the original charge wasn't dropped for lack of evidence despite having probable cause as in Stewart's case, but that there was no case to begin with. An element of the CIA law was that Plame be a CIA covert operative who had been overseas in the past 5 years. That was clearly missing. It would be like prosecuting a murder where the victim was alive and had been unharmed. This is the danger in Congress' power to call investigations.

I don't think I can press for any more free advice from my legal source. But I'm wondering about Holmes's point. Were some of the elements of the crime clearly missing from this case in the first place? And, if this were in fact true, would it even matter in regard to the perjury charges? Or does perjury stand alone once it's committed, needing no original valid cause of action?


At 2:13 PM, October 31, 2005, Blogger Holmes said...

It's still possible, I suppose, that the Prosecutor could try and show Plame was a "covert operative," but that would raise a couple of issues which Glenn Reynolds addresses. The first is, if she were a covert operative, why did the CIA not make Joe Wilson sign a secrecy agreement? Surely once he wrote an Op-Ed in the NY Times, questions would be asked as to how he was sent on this mission. One could then conclude that either a) that was the CIA's goal the whole time- to have Joe Wilson write an Op-Ed damning the Iraq War or b) They are so inept and nepotic that this was just par for the course. Either way, it doesn't look good.

Why aren't these the questions now being asked?

At 4:43 PM, October 31, 2005, Anonymous The Unknown Blogger said...

It seems like while Fitzgerald was initially given authority to investigate whether the 1982 Intelligence Identities Protection Act was violated, he later asked for and received clarification that he also had

"the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, [the] investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses..."

this from Fitzgerald's website:

So it looks like he moved from the narrow "covert operative" track to the broader "leaking classified information" track.

I believe this article from the Oct 21 WSJ (before the indictment of Libby) addresses some the questions you (and Holmes) are raising about the relationship of these charges to the original case:

Key quotes:

"Mr. Fitzgerald's initial mission was to see if the leaking of Valerie Plame's name violated a 1982 act that bars the intentional disclosure of an undercover intelligence operative's identity.

But lawyers and others close to the case say he may be piecing together a case that White House officials conspired to leak various types of classified material in conversations with reporters -- including Ms. Plame's identity but also other secrets related to national security."

"Exposing a covert agent's name might violate the 1982 Intelligence Identities Protection Act. But it is narrowly written, and includes a series of precise hurdles that need to be cleared to prove a crime.

More-general charges of leaking classified information would fall under the 1917 Espionage Act, which prohibits disclosure of "information relating to the national defense." That statute is broader, and would set a lower legal burden for proving a defendant's intent, legal experts said."

At 5:24 PM, October 31, 2005, Anonymous Anonymous said...

Let's not forget the Sandy Berger precedence. He gets a slap on the wrist for outright stolen classified documents vs. what...deliberate or unintentional release of a name of someone who was not even technically a covert agent?

At 6:48 PM, October 31, 2005, Blogger Ymarsakar said...

Nobody exerted the political pressure to appoint an "independent prosecutor" (Aka, witch hunt) on Sandy.

At 7:49 PM, October 31, 2005, Blogger terrye said...

What about all that classified info that the CIA was leaking? Is that a crime?

For awhile there it seemed that hardly a week passed without something new being leaked by "anonymous sources in the CIA".

It was the war of the leaks.

At 8:35 PM, October 31, 2005, Blogger neo-neocon said...

You know what's a bit funny? I seem to recall that the people in the Nixon administration who ended up planning and executing the Watergate break-in were called "the plumbers." Why? Because they were trying to fix the leaks, starting with the Pentagon Papers.

Apparently, leakage is an old tradition.

At 9:02 PM, October 31, 2005, Blogger antimedia said...

The most important element was missing. Plame was not a covert operative and had not been one since 1997, when she was called back to Washington by the CIA because they believed she had been compromised by Aldrich Ames.

Furthermore, she had been living in Washington for more than the requisite five years under the statute. In other words the entire investigation was bogus from the beginning.

That does not excuse Libby's perjury, if he is found guilty.

At 10:41 AM, November 01, 2005, Anonymous The Unknown Blogger said...

As I recall, Republicans gleefully impeached a President for false testimony about an extramarital affair during an investigation into real estate deals (for which no charges were ever brought), calling it "high crimes and misdemeanors".

Surely after that we can agree that evidence that a top-level aide lied about giving classified information to reporters in an attempt to smear a critic of the administration merits prosecution.

At 1:58 PM, November 01, 2005, Blogger SteveR said...

Wha is positively maddening to me as a citizen is that most people still assume that Ms. Plame was indeed a legitimate covert operative at the time of the "leak." If she was not, then there really was no leak. Why was this not established immediately at the beginning of the investigation, rather than left still unresolved two years and millions of dollars later?

Why didn't the Administration come out blazing on this one right from the start - "Uh,excuse me... she's been driving in her own car to Langley on public highways where anyone can observe who goes in and out of CIA headquarters - she ain't a "covert operative"

I have a retired friend who was a covert CIA operative serving overseas for almost three decades, through the mid-90's. He tells me that people in his position were very strongly discouraged from ever showing their faces at Langley - precisely because anyone can see who goes in and who come out of CIA HQ.

All this aside, Libby should not have lied. The administration should not have been defensive at all on this matter - they should have immediately gone on a counter-offensive and made the CIA and whomever else try to come up with a convincing case to show that Plame was covert... and I don't think that attempt would have passed the Smell Test among the public.

At 3:28 PM, November 01, 2005, Anonymous the unknown Blogger said...

No need to be so upset Stever, take a minute to read the indictment, I posted the link above. It states in part:

"...Valerie Wilson was employed by the CIA and her employment status was classified. Prior to July 14, 2003, Valerie Wilson's affiliation with the CIA was not common knowledge outside the intelligence community."

You can bet that if this administration doesn't come out blazing about something, there's a pretty good reason for it.

At 11:37 PM, November 01, 2005, Blogger SteveR said...

Hello Unknown,

Nah, I'm not satisfied. I did read that part of the indictment, and it still left me cold. The CIA can "classify" a ham sandwich and say things like "not common knowledge outside the intelligence community," but I find it very hard to believe that this is a reasonable statement to apply to someone who commuted to Langely every day for years.


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