What Special Prosecutor had been tasked to investigate and prosecute were violations of the Agent Identities Protection Act from a supposed “leaking” of Valerie Plame’s “covert” identity to journalist Bob Novak. The basic problem was that Valerie Plame was NOT “covert” within the meaning of the Agent Identities Protection Act. To be “covert,” you need, among other things, to have a foreign posting within the last five years and to have the C.I.A. take affirmative steps to conceal the identity. Plame had been a Washington D.C. desk bound analyst for six or seven years, and her identity was not given the special concealment required. This happens to be the opinion of Victoria Toensing, the lawyer who was a principal draftsperson of what became the 1982 Agent Identities Protection Act for the sponsorship of then Senator Barry Goldwater; and Ms. Toensing has been making this point for some time and explaining that the definition of “covert” was given the definition it was in order not to impede public discussion of public issues.

Special Prosecutor Patrick Fitzgerald in fact did not charge anyone with violating the Agent Identities Protection Act — particularly one Richard Armitage, the one who revealed Victoria Plame to journalist Bob Novak — because Fitzgerald couldn’t charge anyone with violating the Agent Identities Protection Act without directly confronting the problem that he would have to prove that Valerie Plame was covert when she wasn’t. The advantage of the perjury and obstruction of justice charges for Fitzgerald was that he could intimate that Plame was covert without having to prove it. My view is that Fitzgerald played a sleazy prosecutor’s game with respect to the issue of what was the non-covert status of Plame. It was his motion the trial judge granted to keep out of the jury’s consideration the question of Plame’s status, yet in his closing talked about how revealing Plame’s identity endangered her, as if that had anything to do with the narrow charges against Libby.

Of course, we cannot tolerate perjury and obstruction of justice. But this perjury and obstruction of justice case was a poor one, based on differences in recollections between Libby and a few journalists (Matthew Cooper and Tim Russert) as to what was said two to three years earlier in July 2003 in conversations that were not documented. Such differences in recollection as to undocumented conversations years old are standard in any case. Indeed, the failures of memory on the part of prosecution witnesses at trial demonstrated the point, which I have known as a litigator for thirty years. It always is the case that there are differences of recollection as to such undocumented conversations, and it does not mean someone is lying. Further, here, Russert’s statement to the FBI in November 2003 was that he may have told Libby about Plame; Russert then changed his testimony at trial to say he did not; yet, despite Russert’s inconsistency, Libby was convicted for Libby’s consistent testimony that Russert told himn about Plame. Adding insult to injury, when there is no underlying crime (and there was not here), bringing a perjury and obstruction case is questionable.

Special Prosecutor Fitzgerald’s case succeeded for wrong reasons, among them the following.

First, Fitzgerald’s case depended on keeping away from the jury the non-covert status of Plame while painting an alternative universe of painting a Bush Administration striking out at war critic Joe Wilson, instead of what was the case — an Administration trying to respond to Wilson who, according to the Senate Intelligence Committee, lied in his New York Times op-ed column. Wilson did not do a written report of any kind, much less one that had denied British intelligence as to Saddam’s intentions in Africa to purchase yellow cake uranium (mentioned in Bush’s State of the Union Address in the lead up to war); what Wilson did was to give oral comments in a debriefing that Saddam was up to something in Niger, and since yellow cake uranium was the only thing of interest to Saddam in Niger, that seemed if anything to tend to support British intelligence. Also, Wilson was not sent on his trip to Africa by the Vice President, but by his wife Plame. This whole case arose because Bob Novak, an experienced Washington D.C. journalist, asked “who sent Wilson?” Wilson was a left wing Democrat. If Cheney did not send Wilson (and Cheney wouldn’t), who did? The answer was Wilson’s wife; and it was Richard Armitage, one of Secretary of State Powell’s boys at the State Department and an internal critic of the Iraq War, who answered Novak’s question. Yet, Fitzgerald was successful in creating what might be called an alternative universe in the trial courtroom with Wilson and Plame as the victims.

Second, Fitzgerald sought and got a Washington D.C. jury with people hostile to the Bush Administration and susceptible to accepting that Fitzgerald’s alternative universe, with a barbecue buddy of prosecution witness Tim Russert and a former employee of prosecution witness Bob Woodward on that jury. A red state America jury in the heartland would not have returned this verdict. But this Washington D.C. jury did, after asking themselves, reportedly, where were the higher ups in the Bush Administration and why were they not on trial?

Third, Libby’s defense team, headed by my Harvard Law School classmate Ted Welles (Class of 1976), did do some good cross-examinations of prosecution witnesses but still made serious mistakes. One mistake was that the defense team did not have Libby testify after Welles seemed to say in his opening statement that Libby would testify. You don’t promise in an opening statement something you don’t later deliver on; and you needed to have had the defendant Scooter Libby speak to the jury directly so that the jury concludes and wants to conclude that if Libby misremembered any conversation, it was not a matter of intentionally lying. Another defense team mistake — a very bad mistake –was that the defense team bought into the alternative universe of Fitzgerald, calling Libby the “fall guy,” instead of taking on Fitzgerald’s case directly.

All in all, this was clearly a proper case for a pardon. Libby took a bullet for the Bush Admisnistration in what was a politically motivated, rogue prosecution. Bush did well in many things, but as for not pardoning Scooter Libby, Bush gets a black mark.

and the laws, according to our very own Constitution, cannot be ex-post-facto.

Yeeeaaah, except that this current crop of Dems gives every indication of having scant respect for our Constitution.

Personally, after all this time, I consider Ramos and Compean guilty only of poor marksmanship. I hope they, too, write a book and make loads of money.

If anyone is going to try either Bush Administration officials or people in the military or intelligence services, it will be the Obama Administration, and if the Obama Administration chooses to try people for their official acts as part of the Government, it will send a similar chill through Obama’s own administration — perhaps enough of a chill to paralyze our defense and limit Obama’s own prerogatives in dealing with terrorism.

Think also of the tit-for-tat witch hunt which might happen if Obama were turned out of office by a Republican. I’m sure the Obama Administration folk have already considered that the Swords of Damocles which can be placed over the heads of the Bush Administration will come to rest over their own heads.

There will be lots of talk, but no action. Politicians, when all is said and done, tend to be pragmatic, particularly when an act would curtail their own power.

We’re still dealing with 8 year old controversial pardons, eh?

And GWB doesn’t issue any. Hmmph.

Do you think his staffers are going to remove the “O” keys from the white house keyboards?

I didn’t think so either.

And with targets on their heads and their families, thanks to drug traffickers.

newton on January 19, 2009 at 9:28 PM

I had heard this as well, that their families have been harassed by the drug runners in TX. As convicted felons they can not legally carry firearms. To me this is a grievous loss of personal rights and should be corrected with a presidential pardon.

The best thing Libby can do is to pack his bags, take his family and whatever he still has left, and leave the country. Start again in a different part of the world. Find a job in some different thing, raise his kids in a different environment. Live in peace, away from here. Start over.

For us, the US of A is the Land of Opportunity. For Libby, it has become his Living Hell. The best thing he can do is to walk away from here and not look back. For his peace of mind and that of his family.

But at least with the commutations, R&C can move on with their lives, such as they are.

Outlander on January 19, 2009 at 6:02 PM

What “lives”? They’re ruined!

And with targets on their heads and their families, thanks to drug traffickers.

And he’s in jail.

the only thing more bizarre than that would be a man getting elected to the POTUS who has never had a job, or made a decision, and who spent his life in the cesspools of marxism, racism, and Chicago politics.

Thank god that can never happen.

That being said, there was serious question as to whether the shoot was a bad shoot. The “victim” was fifty kinds of scrote, and who knows what he might have done to prompt the shooting?

Libby doesn’t want a pardon. A pardon is not vindication, and it would have IMHO just lined Libby up for more legal BS thrown at him by Madame Botox Junkie and her flunkies.

I’d really like to see the Dems try and prosecute the Bush Administration. I do believe that a “made man” of the political gangsters who run the city of Chicago has much stinkier stuff in his backyard.

Personally, I think failing to pardon Libby is shameful.

Midas on January 19, 2009 at 5:56 PM

Agreed. And NOT pardoning the border agents is shameful too, especially when it is a know fact that the government lied at the trial.

But, at least they have been commuted.

I still think he will regret the day he didn’t pardon his administration and CIA interrogators.

Tim Burton on January 19, 2009 at 6:20 PM

I just wonder if there aren’t some “break glass in case of emergency” pardons out there, in some envelopes, to be used in case Pelosi gets her way and some prosecutions start. (And I’m not talking about Rangel for income tax evasion.)

I still think he will regret the day he didn’t pardon his administration and CIA interrogators.

Tim Burton on January 19, 2009 at 6:20 PM

Based on the recent noises originating from Pelosi re criminal investigations, I agree.

Waiting for the libs heads to explode!

grapeknutz on January 19, 2009 at 6:01 PM

Ditto.

The libtard sites have been predicting for weeks that Bush would pardon–well, just about every carbon based life form.

On the other hand, they probably don’t remember from one day to the next what they predicted, so they may not even notice.
__________

terryannonline on January 19, 2009 at 6:08 PM

Thanks for the clarification, I thought it interesting fact I found in a recent article on Texas Justice System…wasn’t exactly sure about the veracity of the claim though and didn’t really try to verify it.

Even with a pardon, Ramos & Compean would never get federal employment again.

Pardons wipe the slate clean. From a federal perspective, there’d be no reason not to hire them.

Libby will have to hope that he can get his conviction overturned on appeal.

Libby dropped his appeal.