Why did Fitzgerald stop where he did?
Kevin Drum discusses the Plame matter – specifically, the fact that it is beyond good faith dispute now that Valerie Plame held “covert” status. Drum speculates that the reason Patrick Fitzgerald never brought charges against Libby, Dick Cheney or Karl Rove for the act of publicly disclosing her confidential status as a CIA agent (as opposed to the prosecution of Libby for lying in the investigation) was a problem in Fitzgerald’s mind with establishing the element of “scienter” usually required for prosecuting someone for a crime. That’s basically the element of knowledge that an act is criminal or wrong. But concepts like scienter usually embrace reckless behavior – complete disregard for whether or not an act is dangerous or may cause harm or not, or may violate a law -- as well as deliberate, intentional wrongdoing.
Presumably, none of them actually knew for a fact that Plame had covert status. I suppose that’s the defense. But knowing she worked for the CIA, and considering the solemn promises they had all made to maintain confidentiality of legitimately confidential information, (1) they certainly knew for a fact that some CIA agents have covert status, (2) they knew that unauthorized disclosure that someone under cover is a CIA agent could have serious and deadly consequences, and (3) they at minimum knew for a fact that they did not know she did not have covert status. Weren’t they under an affirmative duty to find out, and isn’t a violation of that duty a criminal act?
Keep in mind, this was not something blurted out in the heat of an angry moment, but a deliberate, planned disclosure by officials close to and with responsibilities in the national security apparatus. This deliberate disclosure was to key members of the press for the purpose of having the information made public. Ask yourself, too, whether you – imagine yourself as a lowly Federal employee in a Democratic administration who happened to know that Plame was a covert CIA agent -- would have been prosecuted if you had done the same thing. And that your defense was that you did not know for a fact that she was covert. Duhhh!
Sorry, Fitzgerald may be a big hero to some for at least nailing Libby for the perjury and exposing the unscrupulous nature of this Administration, but I have to question why the charges were limited to that offense and to him. If “covert” is a slam dunk, which it sounds like, and “scienter” is a slam dunk, too, at least on a recklessness standard, then what’s really behind not filing criminal charges against those evil-doers? Maybe there’s case law that tightens the recklessness standard, but all I recall hearing was that there were very few if any cases to establish a set of stare decisis interpretations in this area of law. I think of so-called prosecutorial discretion as refusing to file cases where the prosecutor recognizes a greater injustice or danger that would result from a conviction for a technical offense than from just leaving it alone: a balance of harms test. That principle seems hard to apply to these people and this offense.
Presumably, none of them actually knew for a fact that Plame had covert status. I suppose that’s the defense. But knowing she worked for the CIA, and considering the solemn promises they had all made to maintain confidentiality of legitimately confidential information, (1) they certainly knew for a fact that some CIA agents have covert status, (2) they knew that unauthorized disclosure that someone under cover is a CIA agent could have serious and deadly consequences, and (3) they at minimum knew for a fact that they did not know she did not have covert status. Weren’t they under an affirmative duty to find out, and isn’t a violation of that duty a criminal act?
Keep in mind, this was not something blurted out in the heat of an angry moment, but a deliberate, planned disclosure by officials close to and with responsibilities in the national security apparatus. This deliberate disclosure was to key members of the press for the purpose of having the information made public. Ask yourself, too, whether you – imagine yourself as a lowly Federal employee in a Democratic administration who happened to know that Plame was a covert CIA agent -- would have been prosecuted if you had done the same thing. And that your defense was that you did not know for a fact that she was covert. Duhhh!
Sorry, Fitzgerald may be a big hero to some for at least nailing Libby for the perjury and exposing the unscrupulous nature of this Administration, but I have to question why the charges were limited to that offense and to him. If “covert” is a slam dunk, which it sounds like, and “scienter” is a slam dunk, too, at least on a recklessness standard, then what’s really behind not filing criminal charges against those evil-doers? Maybe there’s case law that tightens the recklessness standard, but all I recall hearing was that there were very few if any cases to establish a set of stare decisis interpretations in this area of law. I think of so-called prosecutorial discretion as refusing to file cases where the prosecutor recognizes a greater injustice or danger that would result from a conviction for a technical offense than from just leaving it alone: a balance of harms test. That principle seems hard to apply to these people and this offense.
posted by KISSWeb | 11:45 AM
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