The Corner

The Indictment Does Not Allege All Cover-Up and No Crime

The indictment does not allege an offense of the espionage act (18 USC 793), but it does indicate there may well have been one.

There are several crimes laid out in the espionage act, but the one that applies most closely on these facts requires the government to prove that a person (a) obtained classified information lawfully (e.g., in his official capacity), communicated it to someone not entitled to receive it, and (c) did so willfully.

The indictment charges the mere fact that Plame worked at the CIA was classified information. (“At all relevant times … Valerie Wilson was employed by the CIA, and her employment status was classified.”)

It is worth noting that many people, including me, have been wrong about this. I assumed that the fact that she was a CIA employee was well-known and not classified, but that some aspect of her relationship with CIA was covert and classified. The latter may be true (Fitzgerald, as he should have, declined to comment on it), but it turns out to be not so important because the very fact that she was a CIA employee was classified. It really doesn’t matter whether we think it should have been classified or not. The fact is that it was. People privileged to handle classified information well know that they mustn’t disclose it even if they personally think there is no good reason for it to be classified or that some higher purpose of theirs would be served by disclosing it.

So, if the allegations in the indictment are true, then Libby did obtain classified information in his official capacity and he did share it with reporters who were not entitled to receive it. The rest of the equation is: did he act willfully?

Fitzgerald did not charge an espionage act offense. To the extent he spoke about the act today, he explained that he thought it was a statute that had to be used very judiciously to avoid its becoming a British-style official secrets act. That is the policy reason for not charging it, and it could be argued either way. I think he was right, but reasonable minds could differ.

What also could be argued either way is the obvious evidence reason for not charging the espionage act, which is the difficulty of proving willfulness. Pat did not go into this today – again, appropriately; as he noted the prosecutor’s job at this stage is to announce charges, not vouch for them, and not to discuss charges or persons not indicted. But that doesn’t mean we can’t analyze it.

Willfullness is a high mental state in the criminal law. Although the adage that “ignorance of the law is no excuse” generally does apply, a willfulness requirement in a statute comes close to making ignorance of the law a defense. The government must prove that the defendant was fully aware of the unlawfulness of his actions (not that he knew the statute number of the crime but that what he was doing was illegal) and that he performed those actions with a bad purpose.

There is basis in the indictment to suspect that Libby acted willfully – he is alleged to have done a lot to inform himself; to have asked Judith Miller not to source him as a senior administration official but as a Hill staffer (strongly suggesting that he knew what he was saying should not be said); and to have lied about what he said and how he knew what he knew (strongly suggesting he was worried about having said what he said, and worried about having it revealed that he came about the information officially rather than casually).

On the other hand, though, Libby also clearly was not trying to out Plame for the purpose of endangering her, punishing Wilson or harming the CIA. He was trying to do something that was legal and appropriate: to discredit Wilson and knock down Wilson’s misleading story about why he was sent to Niger. He should not have done it the way he appears to have done it, but he surely was not doing what Wilson and the Left have been claiming.

So, while Libby may have had a bad purpose as far as the law is concerned, he did not have a purpose to do damage to the country or help an enemy. That is what the espionage act is most concerned about. Under the circumstances, he was given the benefit of the doubt on his state of mind. I think that was an appropriate exercise of restraint on Fitzgerald’s part. The charges brought are serious ones. There was no reason to bring a questionable one just to rebut a talking point about how it’s only a cover-up and not a crime.

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