Fitzgerald got a governor on a conspiracy charge through his chief of staff

The Net Tightens Around Cheney - Analysis
by imagine at Dkos

...I'm not a lawyer, but according to FindLaw:
A criminal conspiracy exists when two or more people agree to commit almost any unlawful act, then take some action toward its completion. The action taken need not itself be a crime, but it must indicate that those involved in the conspiracy knew of the plan and intended to break the law.
So can Fitzgerald prove that Libby agreed with at least one other person to reveal classified information? (For contrary arguments, see this diary by Daxman and this diary by grapes.)

First he has to prove that "this information about Valerie Wilson" was classified, and I think he is certain he can do that. For starters there's item 9 of the indictment:
On or about June 12, 2003, LIBBY was advised by the Vice President of the United States that Wilson's wife worked at the Central Intelligence Agency in the Counterproliferation Division. LIBBY understood that the Vice President had learned this information from the CIA.
Josh Marhsall points out that "The Counterproliferation Division (CPD) is part of the CIA's Directorate of Operations, i.e., not the Directorate of Intelligence, the branch of the CIA where 'analysts' come from, but the DO, where the spies, the 'operatives', come from." Certainly Libby was familiar with the CIA's two directorates. And as the indictment notes Libby "was obligated by applicable laws and regulations, including Title 18, United States Code, Section 793, and Executive Order 12958 (as modified by Executive Order 13292), not to disclose classified information to persons not authorized to receive such information, and otherwise to exercise proper care to safeguard classified information [my emphasis] against unauthorized disclosure."

Then there's item 13 of the indictment:
Shortly after publication of the article in The New Republic, LIBBY spoke by telephone with his then Principal Deputy and discussed the article. That official asked LIBBY whether information about Wilson's trip could be shared with the press to rebut the allegations that the Vice President had sent Wilson. LIBBY responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line.
Was the "information about Wilson's trip" that his wife worked at the CIA? If it wasn't, what other information would "rebut the allegations that the Vice President had sent Wilson"? Absent an alternative explanation this is evidence that Libby knew specifically that Valerie Wilson's employment at the CIA was classified.

The indictment states as fact that Valerie Wilson's employment at the CIA was classified, in Count 1, item 1f:
At all relevant times from January 1, 2002 through July 2003, 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.
And Fitzgerald repeatedly asserts that fact in the press conference, most tellingly in this exchange:
QUESTION: Can you say whether or not you know whether Mr. Libby knew that Valerie Wilson's identity was covert and whether or not that was pivotal at all in your inability or your decision not to charge under the Intelligence Identity Protection Act?

FITZGERALD: Let me say two things. Number one, I am not speaking to whether or not Valerie Wilson was covert. And anything I say is not intended to say anything beyond this: that she was a CIA officer from January 1st, 2002, forward.

I will confirm that her association with the CIA was classified at that time through July 2003. And all I'll say is that, look, we have not made any allegation that Mr. Libby knowingly, intentionally outed a covert agent.

FITZGERALD: We have not charged that. And so I'm not making that assertion.
Fitzgerald has not charged that, but I believe he has a strong case that Libby leaked what he knew was classified information. So why didn't he charge Libby with the leak? A reader of Andrew Sullivan's blog addresses that question:
I don't know what Fitz knows. But I think he is one inch from prosecuting the leak itself - at least his public comments leave the impression that he's pissed about it - and the only thing holding him back is that he's afraid he can't prove state of mind....

So why not charge him with the leak? Because Fitz has Libby nailed on the 5 counts from today's indictment. Just nailed. So he's bringing Libby in on those charges, they're going to talk some turkey, and Fitz is going to see if Libby will talk, maybe about VP, maybe about Official A (who's clearly Rove), or maybe about the VP's moles at State and in the CIA. Offer some carrots - maybe no jail - but if Libby refuses, then Fitz brings down the espionage or intelligence act charges. Libby has nowhere to go, and Fitz knows it. In my view, he's going to try to exploit that opening before wrapping this thing up."

What's all this mean? Well, seems like Fitz has a pretty strong case for the Espionage Act, and if Plame met the objective standards in the Intelligence Act, for that one too. And it seems like the fact that Libby lied repeatedly is very strong evidence of a culpable state of mind, belying any claim that he didn't "know" the info was classified or that divulging it was wrong. Add that to the very specific allegation in the indictment that he knew exactly where she worked, and there it is.

That makes sense - that Fitzgerald would indict on what is most proveable but withhold the leak charges in an effort to get Libby to open up.

And we have Fitzgerald's answer to the question also. When asked at the press conference why "giving classified information concerning the identity of a CIA agent to some individuals who were not eligible to receive that information .... does not, in and of itself, constitute a crime" Fitzgerald replied:
You need to know at the time that he transmitted the information, he appreciated that it was classified information, that he knew it or acted, in certain statutes, with recklessness.

And that is sort of what gets back to my point. In trying to figure that out, you need to know what the truth is.

So our allegation is in trying to drill down and find out exactly what we got here, if we received false information, that process is frustrated. .... [T]he harm in the obstruction crime is it shields us from knowing the full truth."
Fitzgerald's alleging that Libby is preventing them from gaining sufficient certainty to charge anyone for the leak. And perhaps he's revealed something of his suspicions when he refers to recklessness. (Recklessness isn't an out for Libby; Fitzgerald is saying that whether or not Libby was reckless only affects which statutes were violated.) Fitzgerald uses the word again later:
But the need to get to the bottom of what happened and whether national security was compromised by inadvertence, by recklessness, by maliciousness is extremely important.
Here we have the three possible reasons for the leak: inadvertence, recklessness, or maliciousness. If Fitzgerald knew which one of those it was, he seems to be saying, he could charge Libby with the leak. I think he could charge Libby with the leak since none of those are exculpatory unless Libby was acting under orders. Those orders would be part of a conspiracy and would have had to come from Cheney.

Further support for this strand of thought is offered by Josh Marshall, who finds a hint of conspiracy in the indictment itself. After quoting page 8, items #22-23 about Libby's discussing with officials on board Air Force 2 how to handle inquires from Times reporter Matthew Cooper he writes:
So [Libby] planned what to do in advance with other members of the Vice President's staff. And what they seem to have agreed is that he would confirm Plame's identity, since that is in fact what he proceeded to do.
The Washington Post asserts: "Apart from Libby, only press aide Catherine Martin is known to have accompanied Cheney on that flight." So if Josh is right, Libby conspired with one of those two, maybe both.

So there seems to be evidence of a conspiracy in the indictment, and it points to Cheney. Fitzgerald explained how Libby's obstruction is frustrating the investigation. So the question is: How does a prosecutor prove a conspiracy?

Ahhh. As it happens this is something Fitzgerald has experience with in his indictment of one-time Governor of Illinois, George Ryan:
The investigation, dubbed Operation Safe Road, initially focused on bribes exchanged for licenses for unqualified truck drivers when Ryan was secretary of state. It expanded into a broader investigation of political corruption that snared several of his top aides and associates.

"It was not opened up as an investigation of George Ryan, it was opened up as an investigation of licenses for bribes at the secretary of state's office," Fitzgerald said.
Interesting how the investigation of licenses for bribes ended with the indictment of the Governor for "racketeering conspiracy, mail fraud, making false statements to investigators, tax fraud and filing false tax returns" (emphasis added). How did that happen?
[P]rosecutors won convictions against two of his top aides, including his chief of staff ...
So Fitzgerald got a governor on a conpiracy charge through his chief of staff? Hmmm.

Daily Kos: The Net Tightens Around Cheney - Analysis


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