- The Washington Times - Wednesday, November 2, 2005

The grand jury indictment puts Scooter Libby in serious legal jeopardy, but does little to put the Bush administration or the GOP in political jeopardy.

I have read the indictment, the relevant federal statutes and certain cases construing various elements of those statutes. Here’s my nutshell report.

The indictment charges Valerie Plame was a CIA agent whose very affiliation was classified information. Mr. Libby, as aide to Vice President Dick Cheney, is cleared for classified information.

In such capacity, Mr. Libby allegedly learned of Mrs. Plame’s CIA affiliation and passed that on to reporters who have no security clearance and are not entitled to receive the information.

Mr. Libby is accused of lying to FBI investigators and the grand jury about the unauthorized disclosure, saying reporters told him the information, instead of the other way around.

Based on these charges, the grand jury indicted Mr. Libby for obstructing justice, perjury and false statements. It did not indict him for the “underlying crime” of leaking the classified information, under either the Identities Protection Act of 1982 or the Espionage Act of 1917.

Almost all legal commentators have agreed the Identities Protection Act would be very difficult to prove. But it would have been more accurate to say “It is very difficult to violate.”

To have violated that law, Mr. Libby must have known Mrs. Plame was a covert agent and intentionally disclosed that and Mrs. Plame must have served abroad within five years of the disclosure. Whether Mrs. Plame was covert, which is very doubtful, it’s highly unlikely Mr. Libby knew she was. Even if Mr. Fitzgerald could have overcome that enormous hurdle, it’s inconceivable he could have shown she served abroad within five years, since she has reportedly been stateside since 1997.

But what about the 1917 Espionage Act? The statute would require Mr. Fitzgerald to prove Mr. Libby (1) acquired classified information in his official capacity, (2) willfully communicated it to a person not entitled to receive it and (3) had reason to believe it could be used to injure the United States or provide an advantage to a foreign nation.

Based on his press conference, Mr. Fitzgerald seems convinced Mr. Libby willfully leaked “classified” information (Mrs. Plame’s CIA affiliation) to reporters. But he couldn’t be sure Mr. Libby had the criminal intent the statute requires.

Notice Mr. Fitzgerald didn’t say he would have difficulty proving Mr. Libby’s criminal intent but that he didn’t know Mr. Libby’s intent. That’s a significant distinction because it’s the difference between Mr. Libby having committed a crime that is difficult to prove, and not having committed it at all.

Also note that the U.S. Supreme Court held that, to be guilty of violating the Espionage Act, the accused must not only have intent or reason to believe the leaked information could be used to injure the United States or benefit a foreign country. He must also have acted in “bad faith.”

So, popular legal opinion aside, it seems it would have been quite difficult for Mr. Fitzgerald to make a case against Mr. Libby under the Espionage Act as well. And this is where the legal becomes relevant to the political.

Democrats have said from the outset Bush evildoers conspired to disclose Mrs. Plame’s “covert” identity to exact revenge on her husband Joe Wilson for undermining their claim Saddam Hussein tried to acquire uranium “yellowcake” from Niger.

But no amount of posturing and yelling will make true their false charge that the Bush administration “outed” Valerie Plame to hurt its political enemies, to the detriment of national security. It’s not just unprovable; it’s false. Democrats must come to come up with a better plan to criminalize the war.

Nevertheless, under no circumstances will I minimize the alleged crimes of obstruction of justice, perjury and false statements, even if the “underlying crimes” were not committed. But I have difficulty understanding what motive Mr. Libby, reputed to be of stellar character, would have had to commit those crimes.

Finally, Democrats are left with the Pyrrhic victory of a Libby indictment on the legal front, but absolutely nothing on the political front. Just a short week ago, they thought they had stumbled into a twofold political bonanza with the Miers withdrawal and the Plame indictment about to drop.

But the indictment — politically speaking — has fizzled, and President Bush has just belted a grand slam with his nomination of Judge Samuel Alito. Things are looking up again.

David Limbaugh is a nationally syndicated columnist.

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