The Corner

Response to Andy

When I first read the indictment, I told the lawyers in my office that it was very sloppy. Much of the factual recitation doesn’t seem to match-up with the allegations (again, not downplaying the charges, just trying to understand the indictment counts). We have had a lengthly debate, here and off-line, regarding Count 1 (obstruction). I believe the facts presented in that count are intended to leave the impression that classified information was revealed by Libby to reporters, but the prosecution cannot meet the “knowledge and intent” burden of the underlying statute. So, Libby’s charged with obstruction. In my view, this is a problem (or weakness) throughout the indictment. As you point out in your last post respecting Court 5, we are led to believe that “Libby intentionally misled the grand jury about the state of his knowledge regarding Plame’s employment by the CIA – i.e., what he knew and when he knew it.” My guess is Libby had no idea the fact of her employment with the CIA was classified, and there’s nothing in the indictment that tells us he did. Of course, an indictment need not lay out every piece of evidence or argument a prosecutor intends to make, but it would seem that something more is needed. I also strongly disagreed with statements during the press conference that Libby “outed a covert” officer. He’s not charged with that crime, either. As I said, he’s not even charged with revealing the allegedly classified nature of her employment, but obstruction. And as for the “he said/she said” aspect of this prosecution, the question the trial jury will want to know is what motivated Libby to allegedly lie. For example, if he didn’t know that Plame’s employment with the CIA was classified, if he knew the FBI and grand jury were in possession of his notes, if he knew others were likely to be interviewed or testify about conversations he had with them (not just journalists), then why lie about mentioning Plame’s name and the fact that she worked at the CIA? So, “he said/she said” — and whether Libby thought he was lying to investigators and the grand jury — becomes a more difficult hurdle for the prosecution to overcome than some may think.

Obviously, we are only reading that which is public, and only that which the prosecution has presented. Hence, my repeated caution that this is just the beginning of the process. I also think Libby would do well to seek Andy’s participation in his defense.

Mark R. Levin — Mark R. Levin is president of Landmark Legal Foundation. Previously he served as Landmark’s director of legal policy for more than three years. He has worked as an attorney in ...

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