Sunday, September 03, 2006

Armitage and Powell: Looking at PlameGate retrospectively 

The indefatigable "Larwyn" sent around a link at some god-awful hour last night to an editorial in today's New York Post calling for "Justice for Scooter." It is not one of that great newspaper's finer efforts. The thrust of the editorial is that since the Plame investigation should never have proceeded past October 2003, when Richard Armitage told investigators (pre-Fitzgerald) that he had accidentally outed Plame to Bob Woodward, Scooter never would have had the opportunity to lie (if that is what he did) to federal officers.

Sheesh. That's like arguing if Ken Starr had not expanded his investigation to explore the truthfulness of Bill Clinton's testimony in a civil case unrelated to Whitewater, he never would have uncovered his perjury. Once a political investigation starts it is almost impossible to stop, which is why mainstream media organizations delight in goading opposition politicians into demanding special prosecutors (and why we should be extremely reluctant to appoint them, regardless of the short-term partisan advantage they may confer). None of that justifies lying under oath, or to federal officers who are conducting an investigation.

The Post editorial does work itself around to a series of questions about Armitage and Powell, questions I myself asked in a post yesterday. In so doing, it makes the elementary error of adopting the post hoc conventional wisdom that Richard Armitage worked against the invasion of Iraq:

Armitage was no war hawk. Indeed, as Secretary of State Colin Powell's right-hand man, he - like his boss - opposed the invasion of Iraq.

As I wrote on Friday, Richard Armitage did not share his boss's reluctance before the war, however close their personal and professional relationship. The conventional wisdom that he was some sort of Iraq dove is probably a post hoc reconstruction of his public image, one that may not stand the careful judgment of history. Armitage's pre-war coziness with the Iraq hawks does not mean that Armitage was participating in a Rovian smear campaign against Joe Wilson, but it does mean that the quick (and wrong) categorization of him as "opposed" to OIF does not ipso facto dispose of the question. His position on the war is irrelevant. What is relevant is that Armitage is (obviously) a longstanding source of Bob Woodward who apparently loves to dish. That's the real reason why nobody believes he was part of some Rove-Cheney BushHitler conspiracy.

Now, yesterday I argued to the same conclusion that the NYPost does today -- that Armitage, Powell and the State Department have a lot of explaining to do. How was it that they did not clear the air when they had the chance, saving everybody -- the world, really -- a lot of angst? In this, the NYPost thinks that Powell was behind a decision to leave the White House in the dark:
Still, Powell emerges from all this as damaged goods - and rightly so.

He gets a call from his No. 2, who admits to leaking the Plame-Wilson info - the focus of a huge furor. But does Powell tell this to his boss, the president of the United States?


Rather, according to Isikoff, Powell directed State Department counsel to give the White House a bare minimum of information - and to leave Armitage out of it. He let the investigation expand, fester and envelop the White House, the vice president's office and elsewhere.

The New York Times reports this differently, although not necessarily inconsistently:
Later, Mr. Taft spoke with the White House counsel, Alberto R. Gonzales, now the attorney general, and advised him that Mr. Armitage was going to speak with lawyers at the Justice Department about the matter, the people familiar with Mr. Armitage’s actions said. Mr. Taft asked Mr. Gonzales whether he wanted to be told the details and was told that he did not want to know.

Of course, Powell may have known in advance that Gonzales would not want Taft to tell him the substance of Armitage's talks with the Justice Department, if for no other reason than to avoid interfering (or appearing to interfere) with the inquiry, so this does not contradict the Isikoff/Post accusation. And, also of course, Gonzales' unwillingness to inject himself in the investigation would not have stopped Powell from coming clean with the White House on his own initiative, or with the public.

Yesterday I was more than ready to believe that Powell should have done this. If no crime had been committed, why wouldn't the State Department clear up the whole mess, rather than permit the Bush administration to suffer the political consequences through the 2004 election and thereafter?

I put the question to Andy McCarthy, a former federal prosecutor and current anti-terrorism expert at the Foundation for the Defense of Democracies and National Review columnist. He was a good person to ask because (i) he knows how prosecutions work, (ii) he is not a supporter of the Arabist doves at Foggy Bottom, and (iii) he knows Pat Fitzgerald well, having worked with him professionally. Andy pointed out via email (which he authorized me to quote) that the suspicion of Powell's and Armitage's motives depends from the view that no crime was committed. Why? Because if a crime had been committed, they might have been circumspect purely to protect their own personal legal position. The problem, Andy wrote, is that Armitage and Powell (and Justice Department investigators) still may have had a basis for believing in October 2003 that a crime may have been committed, even if it did not take the shape anticipated in the press coverage and on lefty blogs:
There are at least five things to bear in mind here:

First, while it now seems abundantly clear that the leak of Plame's identity did not violate the covert agent identity protection act (50 U.S.C. 421 et seq.), this was a subject of considerable debate for the first several months after the story broke. It was not obvious back then.

Second, it is still not crystal clear to this day that the leak could not have been charged under the espionage act (18 U.S.C. 793(d)). This statute targets, among others, anyone who has lawful access to, among other things, any "information related to the national defense" -- which information the possessor knows could be used to the injury of the U.S. or the advantage of any foreign nation -- and who wilfully communicates that information to anyone not entitled to receive it. Please understand what I am saying here. I am not contending that this was a violation of the espionage act -- and, indeed, I believe for factual and policy reasons Fitz made the right call not charging it as such. I am saying that it is far from obvious that it was not a violation.

If Plame's classified status rose to the level of national defense information (we still don't know that for sure), and if its revelation could have hurt the country or benefitted a foreign country (and there are a million ways you could think of to establish either), then you would have a leak that was theoretically prosecutable -- and the question of guilt would turn on wilfullness ... which is to say, on the defendant's state of mind. I have noted several times that Fitz has never gotten credit from Libby sympathizers for giving Scooter the benefit of the doubt on this. That's understandable -- Scooter's best shot at beating the case is to foment the notion that this whole exercise was a monumental waste of time, and that is much harder to do if he is in a gray area. But it is less understandable that impartial legal commentators have not seized on this point. Fitz made a policy judgment that, in this country, we do not want the espionage act enforced as if it were a British style state-secrets law (where the government can suppress any embarrassing information by classifying it).

Third, although there has likewise been very little discussion of this (it is mentioned in Gabe Schoenfeld's Commentary piece which analyzes whether the New York Times should be prosecuted), there is another theory of guilt here. The federal embezzlement of public property statute (18 U.S.C. 641) targets, among others, "Whoever embezzles ... or knowingly converts to his use or the use of another, or without authority ... conveys or disposes of any record ... or thing of value of the United States or of any department or agency thereof[.]" Theoretically, Plame's status was a "record" or "thing of value" of the CIA, which a government official -- who has access to such records for the proper purposes of his position -- took and used for his own arguably improper purposes (or for the purposes of any reporter to whom it was leaked).

This statute has been used in the past to prosecute leaks of government records (as you can see, there's no requirement under the statute that the record even be classified). Again, I think it was absolutely the right call not to test the parameters of this statute in connection with a leak that really did not harm national security, but it is anything but obvious to me that its employment by a prosecutor would be wrong as a matter of law. Here, again, Fitzgerald made a policy judgment not to enforce this statute as if it were a state-secrets law ... even though, literally, it may well apply. (Embezzlement, by the way, is a felony punishable by up to ten years in prison.)

Fourth, any competent criminal defense lawyer advising Armitage and others at the time these events occurred would have had to take note of the political climate (Democrats and the media calling for a prosecution) as well as a rule-of-thumb which is followed by many, but happily not all, prosecutors: namely, when all the acts necessary for the commission of a crime have occurred, and guilt turns on state-of-mind (i.e., did the defendant act with criminal purpose?), the safest thing for a prosecutor to do is indict and let the jury do the mind-reading part. Here, there clearly was a leak of something that was classified (and that was arguably either national defense information or a government record or thing of value). If you buy all that, the real question is: was the leaker acting with criminal intent when he said something fairly innocuous that he may well have thought was fairly well known?

All that is required legally for an indictment is probable cause, and ethically is a rational belief that the government could prevail at trial. It was no sure thing at the time these events took place that there were not grounds for an indictment -- even if the likelihood was that Armitage or others could have beaten the case at trial on the defense that they did not really intend any harm to Plame or the country. (Even that, by the way, would not be a legal defense to an embezzlement charge -- although I think it would have lots of nullification appeal.) And it's important to remember that mere indictment was crucially important here. This is not a case involving real crooks where the only important thing to them is that they avoid conviction. Indictment for politicians ruins their lives, and an indictment circa 2003-04 might very well have changed the result of what turned out to be a very close election. (Fitz did not indict until 2005 -- but back in 2003, no one knew when or if that might happen.)

Fifth, and relatedly, while I know Fitz well, and the country knows him a lot better now, Armitage and others did not know him back at the relevant time. Notwithstanding the criticism of the Libby indictment, it is now pretty clear that Pat was not looking -- a la Lawrence Walsh -- to nail everyone under the sun or cause political damage. But that was not known at the time. For all Armitage and others knew -- given Pat's reputation as an aggressive, no-nonsense prosecutor and the fact that he was even then laying the groundwork to pursue information from journalists -- Fitz could have been a crusader who would file charges at the slightest hint of a crime.

So, I don't think you can dismiss the possibility (I'd almost say the likelihood) that people took the actions they took in 2003-04 with a very real fear of prosecution in mind. In the climate of the time, it may have been very reasonable for Armitage to fear that resigning from State would have been seen not just as embarrassing but as an admission of guilt to a serious crime, which admission might well have (a) increased cries for an indictment and (b) raised damaging speculation about Powell's role.

Again, to be clear: I am not excusing the behavior of the State Department people here -- it seems dishonorable to me (although I don't pretend to know all the facts). Nor am I waving any banners for Pat's case. As I wrote in NRO earlier in the week, I think (a) there's a real danger of criminalizing politics here; (b) it was absolutely appropriate for the administration to have exposed Wilson (I only wish they had done it less defensively); (c) even if Libby did mislead investigators (and he is, of course, presumed innocent), there is a good prosecutorial-discretion argument here that if Wilson could not have been charged, no one should have been; and (d) if the facts as they were already known by December 2003 (after two months of investigation) did not rise to the level of DOJ policy for an indictment under the three statutes discussed above, there is a good argument that the investigation should have been closed at that point rather than a special prosecutor appointed. All I have tried to do in responding to your post is contend that we should not evaluate what people did back then on the basis of what we know now. Instead, we have to put ourselves in the position they were, based on the knowledge and advice they were probably getting at the time.

Thanks to Andy for this, which walks me back some distance from my suspicion that Powell and Armitage were sandbagging the White House. Perhaps they were, but from the perspective of 2003 they did, I suppose, have solid reason to be worried first about their own skin.


By Blogger sirius_sir, at Sun Sep 03, 02:43:00 PM:

How hard would it have been for Powell to hire a lawyer to convey the message that he might be in possession of information relevant to the investigation?

Hell, even known criminals do that in the expectation of receiving extremely generous prosecutorial leniency.  

By Blogger Lonesome Payne, at Sun Sep 03, 03:40:00 PM:

Hey, interesting. I've also corresponded with Andrew McCarthy; he's amazingly thoughtful and forthcoming.

I have soem overlapping questions:

Is Andy in fact taking it as a given, as he seems to be, that other WH officials mentioned Plame to other journalists, in their effort to explain why reporters might not want to trust Wilson's story?

If so, does he take it as a given that if Plame's status was in fact classified, and/or covert, they would have known that?

If so, does it mitigate the criminality at all that their conversations did not result in publication of Plame's status?

Is it actually fairly common, in intelligence-related circles including journalism, for this kind of low-level classified info to be discussed "off the record?"

And finally: Does the way Novak got the info - as a seemingly innocuous piece of information - explain his publishing it, which always seemed an odd decision on his part?

Thanks -  

By Anonymous Anonymous, at Sun Sep 03, 05:01:00 PM:

Wow! How did I miss that Powell and Armitage were DEMOCRATS!  

By Anonymous Anonymous, at Sun Sep 03, 05:29:00 PM:

The indefatigable "Larwyn"
reporting that a great discussion of the McCarthy email began at JOM about 3 hrs ago:

from thread at: JOM "NYT's on Armitage-BS ,Round II, analysis/comments on McCarthy's email to Tigerhawk begin at Clarice 11:04 AM (Pacific Time )

There are many interesting and thought provoking comments collected and I'm forwarding as email.

But Clarice found this which is not an answer to McCarthy, but rather expresses my feelings:
"Loyalty motivates US Marines to leave cover, under enemy fire, to rescue wounded comrades, often at the cost of their own lives, and pull them to safety and their comrades.Fidelity will send firefighters rushing back inside a burning building when they hear the shrill scream of a personal alarm locator from a fallen brother or sister.And allegiance to a police partner's wishes will send you pell-melling it headlong to the nearest emergency room, while another cop cradles your wounded partner in the back seat-- because you promised you'd never wait for the ambulance and you'd head for the nearest trauma bay Code 3 -- you keep those promises you make because someday it might be you with a hole in your neck.And on the other end of the scale, we should be able to find men in the United States willing to serve our government, capable of showing an understandable loyalty to the President with enough inner strength to tell him of the nature of gross and harmful injustices being committed against him when they occur, particularly when those having knowledge of the ongoing perfidies are the Secretary of State and his assistant, especially when we are at war.Just as we should also be able to find men willing to resign when purpose trumps morality.[snip]the idea that a Secretary of State, fourth in line to assume the office of the Presidency in case of a national emergency, should choose to openly allow an unprecedented three year attack on the Presidency, utterly diminishes Colin Powell in stature, character, and in the professed love of his country, to say nothing of totally abrogating his oath of office.As far as I can see it, with as forgiving a soul in the White House as George Bush - who seems to have put so many obvious prosecutions on the back burner, including the likes of a Mary McCarthy or a dastardly Sandy Berger, out of a form of compassionate conservatism - it seems that Colin Powell simply stabbed the President of the United States in the back because he could, because he would get away with it, because he would not be held to task for his grave misdeeds by a man known to turn the other cheek, and because an acceptable form of loyalty in American government to the United States of America, above all else, simply no longer exists.With Colin Powell, as with Mr. Armitage, loyalty has finally gone the way of the Model-T. "http://www.canadafreepress.com/2006/burtis090306.htm
Posted by: clarice | September 03, 2006 at 12:23 PM

If even people in Canada are pointing out the underlying abuse of a trust by Powell/Amitage/STATE...
then McCarthy has his work cut out for him.

Spend some time at the JOM thread - you may not find all the answers but you'll sure be more aware of the questions that should be asked/answered by the LSM &
State & CIA and and ...  

By Blogger sirius_sir, at Sun Sep 03, 06:29:00 PM:

...it seems that Colin Powell simply stabbed the President of the United States in the back because he could, because he would get away with it...

Did he get away with it? The court of public opinion has only just begun weighing in, and if I were Mr Powell I'd be anything but complacent.  

By Anonymous Anonymous, at Sun Sep 03, 06:45:00 PM:

Andy McCarthy's defense of Armitage falls flat when one considers that Armitage never engaged a lawyer, a pretty clear sign he never considered himself to be in legal jeopardy. Why no concern about being charged with outing a covert agent? Because he knew from day one that Plame was not covert. How? Marc Grossman worked for Armitage. Grossman was a long time friend of the Wilsons.  

By Blogger AST, at Sun Sep 03, 07:08:00 PM:

Two things occur. One, a prosecutor is supposed to do justice, not just leave it up to the jury to resolve questions he might have. Justice may be done by clearing the subject of the investigation, but Fitzgerald knew he'd be accused of whitewashing. It shouldn't have been that difficult to figure out that the source of the critics indignation had more to do with Bush, Cheney, Rove and Libby and the desire to uncover a debilitating scandal. The real desire was to catch them in a campaign to discredit Joe Wilson. I don't know if that's a crime, exactly, though. The embezzlement charge strikes me as a stretch.

Second, it seems to have become obvious early on that disclosing Plame's identity was hardly the life and death matter her husband and his allies in the press made it out to be. Nor was her identity such a deep dark secret. Indeed, it seemed probable even then that there were a number of reporters who knew who she was. She may have been one of Judy Miller's sources, for all we know. Miller testified only on her communications with Libby and Rove at her insistence suggests that she had other sources she wasn't willing to divulge.  

By Blogger Peter, at Sun Sep 03, 07:23:00 PM:

Powell and Armatige were not Marine, who do revober their wounded, even their obviously dead at risk to their own lives. Nor firefighters or police. No, they are Important People, free to ignore a Presidential Order to come foreward with information.
The moment they ignored that order they lost all hope of ever again being considered honorable men.  

By Anonymous Anonymous, at Sun Sep 03, 09:11:00 PM:

"..when all the acts necessary for the commission of a crime have occurred, and guilt turns on state-of-mind (i.e., did the defendant act with criminal purpose?), the safest thing for a prosecutor to do is indict and let the jury do the mind-reading part."

I lack the wit to express my outrage about this concept.. as if the defendent was a piece of pasta to be thrown against the wall to see if it's done.  

By Blogger Moneyrunner, at Sun Sep 03, 10:21:00 PM:

So Powell and Armitage allowed this issue to deep six this administration because they were too chickenshit to come forward? And that’s OK?

Here’s why I am not a lawyer. Fitzgerald was tasked with determining who leaked Plame’s job and if that leak was a crime. He knew right from the beginning that Armitage was the source of the leak. He should then seek to determine if the leak was a crime. Based on the fact that no one has been charged with leaking, we can assume the leak was not a crime.

At that point the investigation should have shut down. I would have. But it did not. And that is why I am not a lawyer.  

By Blogger Linda, at Mon Sep 04, 12:57:00 AM:

I commented on another blog that Mr. Powell's halo slipped. I changed my mind. The pseudo halo that the LSM had awarded him fell to the floor and shattered. As someone commented above neither of these men retained a lawyer. That says it all, there was never any danger of charges being filed or pressed. The only thing proven was a COMPLETE LACK OF HONOR or LOYALITY. Powell has always struck me as mealy mouth and lame, now, he proved he is also dishonorable and disloyal.

Fitgerald just rode the gravy train. End of story.  

By Blogger JM Hanes, at Mon Sep 04, 01:30:00 AM:

"Because if a crime had been committed, they might have been circumspect purely to protect their own personal legal position."

Why do you treat Armitage and Powell as a single entity? Unless Powell had reason to believe he, himself, was at legal risk, his position was entirely different than that of Armitage. Even were he at risk -- and there is virtually no indication that he was so, at at any point in time -- he was ethically, professionally and officially obliged to inform his President. "Circumspection" is simply not what we're talking about here! I, personally, believe the same was true of Armitage, but where Powell is concerned, his appalling failure to do the right thing is utterly inexcusable. This is about personal damage control at the expense of the nation.

The Johnston article is rife with inaccuracies, as is the original Lewis article from which much of it derives (Lewis is listed as a contributor), so on the question of what Gonzales was told, I would be inclined to go with Isikoff & Corn. Their research was already completed before the recent collection of confidants stepped forward to explain (& defend) Armitage. I also suspect that one of the reasons he has yet to step forward himself is that there are still unanswered questions he does not want to be asked.  

By Blogger AtlasShrugs.com, at Mon Sep 04, 02:33:00 AM:

All those traitors right under the president's nose. Shakespeare wrote the whole script, all we have to do is recollect!

Imagine, they never said anything. While Bush and his closest confidantes burned, they never said anything.

I am not buying any of this CYA nonsense. It was much darker, much more diabolical than a mere oops. Careers were destroyed. Huge chunks of time and valuable resources squandered and once again the American people lead astray by the fauxmedia-cum-theater.

The spineless right can not give this coup d'etat a free pass while the left (the Shadow party) hides behind the skirts of WaPo and the jihad media.

There may be a dramatic shift in the political landscape. The Armitage shocker will have severe reverbs in the Republican party.

The silver lining is the opposing camp (which had been in purgatory) will emerge (Cheney, Rumsfeld, Bolton et al) and maybe win the internal war to prosecute the war on the global jihad.  

By Anonymous Anonymous, at Mon Sep 04, 05:47:00 AM:

Secretary Powell not only betrayed his president, he betrayed the trust of his country. His silence is utterly despicable. It would have been dishonorable at any time, but to do so when this president was struggling with a war put the country at greater risk and is inexcusable.

I began to doubt Mr. Powell when he was all for halting the first Gulf War. I lost my respect for the man after Somalia. Now he has added a stink on his reputation than will never be removed. You can discuss the legal ramifications all you want, nothing excuses his behavior.  

By Blogger TigerHawk, at Mon Sep 04, 06:27:00 AM:

So Atlas, why all the ambiguity? :)

Now, as I have said, it is not clear to me that Powell's hands are clean here. However, the Justice Department had asked that everybody who is the subject of the investigation keep quiet about their discussions with investigators. President Bush had issued a declaration that everybody should cooperate fully. He said so publicly. William Taft, the State Department's Chief Counsel, gave Alberto Gonzales the chance to ask about Armitage's testimony (in the NYT's version, anyway), and Gonzales declined because to do otherwise would be improper. Powell would have been at risk of interfering with a Justice Department investigation if he had passed on information that he only had because he was Armitage's boss. Hey, if the information was available to be made public without creating further legal liabilities, why didn't John Ashcroft do it? Same problem.

I'm not defending Powell in this by any means -- my original post was pretty tough on him. But I still think Andy is right about this. From the perspective of 2003 and under the Justice Department's rules of engagement, I'm not sure Powell had any more options than Armitage.  

By Blogger Oxbay, at Mon Sep 04, 07:45:00 AM:

On the one hand McCarthy's points are legal points. They are all moot. Why? Because Armitage had already told the Justice Department. The White House would not have prosecuted him. The DOJ would have. The WH would not have commanded the DOJ to prosecute Armitage. Imagine if something like that had gotten out.

On the other hand if Armitage was in legal jeopardy by circumscribing the number of people who knew he was protecting people who didn't know, i.e. the White House. If he had been a blabbermouth a prosecutor, who could have turned out to be someone like Richard Ben Veniste, could have indicted the whole circle of those in the know. Gleefully indicted. In this scenario Armitage was willing to take the hit and protect the larger entity, i.e. Bush.  

By Blogger JM Hanes, at Mon Sep 04, 08:01:00 AM:

For starters, there is nothing binding in a prosecutor's request that a subject of investigation remain silent, and witnesses have an indisputable right to discuss their grand jury testimony with anyone they choose. The question here, though, is not one of public disclosure.

I believe the President did, in fact, initially make private inquiries of staff, in either expectation or hope that any leaker might identify himself. And let's not forget that the cooperation he ordered included granting waivers to journalists, something Armitage has yet to do -- despite what Woodward, if not Novak, has asserted were multiple requests on his part. I find it hard to believe Armitage would have refused to cooperate in that regard had Powell insisted. I'd note, as well, that Fitzgerald certainly showed little enough concern about public exposure when it came to the status of Libby's waiver.

John Ashcroft, as Attorney General, & Gonzales as White House Counsel had a different set of legal responsibilities than Colin Powell did, nevertheless, I'm not sure how you can be at risk of interfering with a Justice Department investigation by informing the prosecutor's boss about what you know. The standard you're suggesting would also mean that Armitage should have gone directly to DoJ himself, not his boss Colin Powell, not Taft, not Gonzales. Ditto for Powell, whose hands were not tied too tightly to assist his deputy at the expense of his own superior officer.

It is clear that the lot of them knew they ought to inform the President, but they chose instead to approach Gonzales in anticipation of the very hoped for excuse, or more accurately, the cover he might provide them for not doing so. What Powell refused to compromise was not his legal position but his own self-interest.  

By Anonymous Anonymous, at Mon Sep 04, 08:13:00 AM:

I've been told that the first person to investigate the My Lai massacre was Colin Powell, then a Major in the Americal Division, who said, more or less, like Officer Bar-Brady, "Move along folks; nothing to see here." People have speculated that the certainty that this would be exposed is the real reason he would not run for President. Powell's behavior in this situation seems much the same.  

By Anonymous Anonymous, at Mon Sep 04, 08:16:00 AM:

Fitzgerald knew in the first two weeks of his "investigation" that no crime had taken place, but he continued to hound people like Libby for years afterword. Fitzgerald is scumbag.  

By Blogger TigerHawk, at Mon Sep 04, 09:05:00 AM:

Last Anonymous guy: there is no evidence of that. As Andy points out, there were numerous theories under which Fitzgerald could have brought a substantive case against Bush administration officials. He exercized his prosecutorial discretion and chose not to, which suggests, perhaps, that he did not approach the investigation with the partisan zeal of prior independent prosecutors.

Yes, the fact of Fitzgerald's investigation was exploited by the media and the Wilson-Plames and the Democrats to do a lot of political damage to the Bush administration, but I don't see anything in Fitzgerald's actual conduct that is dishonorable. John Ashcroft's Justice Department gave him the job to work on this case two months after it knew that Armitage was the leaker. Ashcroft and the Bush administration could have decided to resist the calls for a special prosecutor, but they wanted to claim that everything was on the up-and-up and it seemed expedient at the time to cave into the pressure from the media.

Look, I think Joe Wilson is one of the biggest weasels to surface in American government in quite some time. I think the press -- especially the New York Times -- has been unbelievably irresponsible in its handling of this matter. Finally, I believe that the State Department has worked night and day to undermine the Bush Administration's foreign policy. All of that being said, I believe that the jury is very much out on whether the decision of Armitage and Powell (and the Justice Department) not to go public with Armitage's story was a political attempt to subvert Bush and Cheney, or -- more likely, in my view -- personal caution in the face of legal risk.  

By Blogger Tony, at Mon Sep 04, 09:35:00 AM:

This is a great explanation of why Powell and Armitage found it in their legal interests to remain silent in 2003, perhaps a few months in 2004. What was their reason in 2005 and 2006? Were they merely caught in despicable duplicity and dare not pop their heads up to tell the truth? Why would they let this President and his Administration be dogged for crimes they did not commit for three years? Why would they let the weak-minded among us calcify, justify and increase their visceral hatred of this Administration? Both of these men will be shamed in history for this, though I'm sure Colin Powell record will recieve a high sheen of politically correct gloss.  

By Anonymous Anonymous, at Mon Sep 04, 09:52:00 AM:

Tigerhawk: Your statement that "All that is needed for an indictment is probable cause" (paraphrased) is I believe incorrect. All that is needed for a grand jury to indict is sufficient cause to believe a crime has been committed. This is a lower threshold than probable cause in a criminal trial. And because a grand jury proceeding is not advisorial, it has been said that a prosecutor could indict a "Ham sandwhich."
I also think it possible that Mr. Fitzgerald, in a climate of optimism that Democrats were on the cusp of taking over government, decided this was his big chance for a bigger job.  

By Blogger sirius_sir, at Mon Sep 04, 09:53:00 AM:

Tigerhawk, wouldn't it depend on what you mean by "going public"?

I can understand Powell not going to the press about the matter, but knowing what he did, shouldn't he have informed someone?

Suppose I know that someone accused of a crime is entirely innocent. Leaving aside the legal aspect, don't I have a moral obligation to reveal what I know?

If Powell was in no danger of jeopardy himself, doesn't that make his obligation all the more obvious and compelling? (And if he thought his actions might attach some jeopardy either to himself or anyone else, he could have hired a lawyer to assist and advise him. I see no evidence he even considered it.)  

By Blogger TigerHawk, at Mon Sep 04, 10:09:00 AM:

Sirius, Armitage *did* inform somebody -- the Justice Department. Nobody *was* accused of anything. I don't see your point.

The only "accusations" were rumors in the press, whining from the Wilsons and endless grief from Democrats. The system worked. The only failing was on the part of the media, which fell for the lefty line like a ton of bricks.  

By Blogger sirius_sir, at Mon Sep 04, 10:41:00 AM:

And yet the special prosecutor continued on and on to the point where some now think Mr Libby is in need of a pardon.

Please tell me you don't really think this is how "the system" should work.  

By Blogger sirius_sir, at Mon Sep 04, 10:53:00 AM:

As long as we are taking a retrospective view of what now will increasingly be seen as an historically minor contretemps, let's consider also that this story at the time had the very real possibility of swaying the results of the 2006 Presidential election.

My suspicion--impossible to prove, I know--is that there were some who were keeping their mouths shut hoping for just such an eventuality.  

By Blogger sirius_sir, at Mon Sep 04, 10:56:00 AM:

Sorry, I obviously meant 2004.  

By Anonymous Anonymous, at Mon Sep 04, 11:54:00 AM:

If one credits everything McCarthy says, it still comes down to this: Out of fear that Armitage might face prosecution, Powell and Armitage sat by and watched others, whom they knew to be innocent, undergo a three-year nightmare. It is disgraceful and dishonorable behavior. If he had a shred of decency, Armitage would have stepped forward and said, "Karl Rove didn't leak to Bob Novak. I did, and I'm sorry."  

By Blogger Bruce Hayden, at Mon Sep 04, 04:27:00 PM:

The problem with your prosecutor friend's suggestion that the classified nature of Plame's CIA identity might rise to "information related to the national defense" is that that determination is almost always made by the current Administration. How could Fitzgerald prove this element? Esp. over a contrary determination by the Administration? Indeed, they seem to have been operating on the contrary assumtion, that it was more important to the national interest and national defense to disclose the connection between Plame and Wilson, in order to debunk Wilson's article, that was the classified nature of Plame's identity.

Indeed, I wonder if Fitzgerald looked at this, and decided not to get into the question of the extent of the President's plenary core Article II powers and responsibilities (and leave that for the NSA TSP cases). I think it would have been hard for him to prove the element that her identity was "information related to the national defense" without getting heavily involved in this matter.  

By Blogger JM Hanes, at Tue Sep 05, 02:40:00 AM:

At the risk of being tedious, I reiterate my initial question: Why conflate Armitage and Powell? The potential jeopardy faced by the former is clear enough. Absent some bizarre secret twist, even the theoretical jeopardy Mr. McCarthy is at such pains to supply does not attach to Powell -- which means his primary obligation was abolutely clear.  

By Blogger sirius_sir, at Tue Sep 05, 06:26:00 PM:

Tigerhawk, I agree with the thrust of your opening remark that the fact that this investigation should not have proceeded does not justify telling an intentional lie under oath. And I'm not about to try to justify Mr Libby's behaviour if that is what he did.

But what does one make of the fact that the DOJ was in possession of the fact that Mr Armitage was the leaker and, presumbably, gave this information to Mr Fitzgerald? Would you agree that the investigation should not have proceeded from there? Or, at least, not in the fashion it did?

And how does anyone justify keeping this information secret given the damage the supposition of guilt was doing to the Administration's standing with the public during the runnup to the election? Even Armitage's supposed jeopardy seems minor in comparison.

calls it mere irony "that the initial leak, seized on by administration critics as evidence of how far the White House was willing to go to smear an opponent, came from a man who had no apparent intention of harming anyone..." and yet... given State's unhappiness with and animus towards the White House over the war, why shouldn't we consider a possible role for perfidy too?  

By Blogger sirius_sir, at Tue Sep 05, 06:28:00 PM:

Michael Isikoff calls it mere irony...  

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