Author: Marty Aussenberg

Now that Scooter Libby has done his crutch-assisted version
of the perp hop for his arraignment, the second biggest question on everyone’s
mind in the CIA leak case (the first, of course, being a multiple choice one of
whether Karl Rove will either (a) be indicted, (b) resign, (c) both, (d)
apologize and throw himself on the mercy of the American people, or (d) none of
the above), is whether Libby’s case will go to trial. 

I have already weighed in on this question, in no uncertain terms.

Much has been made of the fact that Libby has now “lawyered
up” with the addition of two prominent criminal defense attorneys,

Theodore Wells and

William Jeffress, Jr. both of whom accompanied Libby to his arraignment, and
one of whom, Wells, made what could only be described as a resounding
pronouncement on the courthouse steps that

in pleading not guilty, he has declared to the world that he is innocent, he has
declared that he intends to fight the charges in the indictment, and he has
declared that he wants to clear his good name and he wants a jury trial.

YEAH, RIGHT!  This is the same kind of speech every
criminal defendant’s lawyer gives who, for whatever reason, hasn’t worked out a
deal for his client before he’s been indicted.  It goes hand in glove
with the “innocent until proven guilty,” flag-waving pablum everyone spouts
about the accused, even if they really believe he’s guilty (which most people
usually do).  But here, because Libby has hired two “trial lawyers,” one of whom
has made a stentorian speech about his client’s innocence and desire to clear
his name, the uninitiated are assuming it must mean he really does want to go to
trial.  Nothing could be farther from the truth, and the fact that accomplished
trial lawyers have been hired is the strongest evidence of that.

As in all adversary legal proceedings, where each party is
represented by counsel, there is a stage of the proceeding (sometimes more than
one) where the parties’ lawyers do what I call the “war dance.” It’s a bit like
what goes on in the animal kingdom when two beasts who have come to loggerheads
square off against each other and

strut their stuff in an effort to convince their adversary it would be a
mistake to rumble.  So, one party bellows, followed by the other; then one party
thumps the table, followed by the other, and so on.  And, of course, the more
credibly each participant in the “war dance” struts his stuff, the more they may
be able to avoid, or at least mitigate, the inevitability of a rumble. 
Sometimes that means the party that brandishes the biggest weapon during this
stage of the preliminaries can walk away without having to fire a shot.  And big
guns require big (read: expensive) gunslingers. That, my friends, is also why
high profile criminal defendants hire high power defense lawyers.

What’s happened so far in the Libby criminal proceedings is
that the prosecutor has had his opportunity to bellow and thump the table (with
the indictment and during his press conference announcing the indictment), and
now Libby’s lawyers have had the same opportunity (Mr.  Wells’ pronouncement on
the courthouse steps).  Libby has now said to Fitzgerald, “OK, Mr. Big Stuff
Prosecutor; my defense team can beat your prosecution team any day of the week” 
(or in GWB vernacular, “bring it on”). Now the parties will retreat to their
separate corners and, yes, go through the motions of preparing for trial. 

But let me assure you, behind the scenes there will be some
intense negotiations between the government and Libby’s lawyers to enter into
some kind of plea agreement.  And, those negotiations will get even more intense
as Libby’s defense team finds out what the evidence against their client is,
which they will.  Key in those discussions will be whether Libby will rat out
his boss, the Vice President, or lead prosecutors to where any other bodies may
be buried in the whole Wilson/Plame debacle (i.e., the Italian connection).  But
even if he doesn’t turn on his boss, his boss may turn on him, trying to force
him to cop some kind of plea to lesser, or limited charges, in order to avoid a
full-blown trial.  In fact,

most criminal defendants (96% in 2003) choose to plead guilty or no contest.

But don’t kid yourself.  Just because Libby has hired
“trial” attorneys, or even these particular ones, doesn’t mean they won’t be
doing everything they can to explore ways in which they can avoid going to
trial, not because they’re afraid to, but because they know the risks and costs
of doing so.  For example, one of Mr. Wells’ most prominent clients was the
famed junk bond king, Michael Milken http://en.wikipedia.org/wiki/Michael_Milken
Milken, who, despite the same kinds of pronouncements of innocence and intended
vindication at the time of the indictments (which included 98 counts of
racketeering, and securities fraud, among others), didn’t go to trial.  Instead,
the prosecutor in the case, Rudy Giuliani (back before he started making the big
bucks) and Milken’s lawyers, including Mr. Wells, entered into a plea agreement
under which Milken eventually served 22 months in federal prison, paid $600
million in fines and restitution and agreed to be barred from the securities
industry for life. Some bargain, eh? 

And Mr. Jeffress?  One of his high profile criminal clients
was the CEO of the drug chain, Rite-Aid, Martin Glass.  Glass was indicted on
numerous counts of securities fraud, mail fraud, wire fraud, conspiracy, perjury
and obstruction of justice.  Instead of going to trial, he pleaded to two
conspiracy charges, and payment of a $500,000 fine, and

was sentenced to an eight-year jail term.

I mention these two examples (and I assume there are
probably others) in the case of Libby’s new legal team only to point out that
just because these are hotshot trial lawyers doesn’t mean they aren’t more than
able and willing to pack their trial weapons in, and go for the best deal they
can possibly get for their client.  This is especially so, given the effect of
plea bargains on the federal sentencing

guidelines  (one of which has substantially
increased the time required to be served for the crime of obstruction of
justice), and the ability to have more say about which of the

“glamour slammers” one gets to go to when one plays ball with the
prosecutors.

The simple fact is that in any
criminal prosecution, but even more so in this one, both the stakes and the
costs are simply too high to Libby (and to the people for whom he’s acting as
the patsy) to go all the way.  The proceedings leading up to and including a
trial for a very high profile defendant can easily run into seven figures, and
sometimes higher.  And, while no price may be too great to pay for freedom, a
well-negotiated plea agreement that obviates the pain, suffering and financial
distress associated with going all the way through a trial, even if it may be at
the expense of some kind of negotiated punishment, is almost always better than
going “all the way.” No, my friends, there will be no trial for Scooter Libby.

P.S. Let’s also remember, by way
of explaining why a trial in this case will never happen, that if worse comes to
worst, and it really looks like Libby’s case is going to go to trial, and that
Cheney (and who knows who else the White House doesn’t want to testify) might
actually have to testify, there are at least two other alternatives available to
the powers that be: first, they can always involuntarily (and permanently) put
Libby in one or another (official or otherwise) witness “protection” program

“glamor slammers”, and second, they can always send him to one of the
recently disclosed

CIA secret prisons,  where they’ll never have to worry about seeing him
appear in a courtroom in the District of Columbia (or, for that matter, any
courtroom anywhere else either) again.  Hey, let’s not forget, those “detainees”
are innocent until proven guilty too—aren’t they?

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The indictment of vice-presidential aide Lewis “Scooter” Libby — only Scooter Libby and only on investigation-related charges (perjury, obstruction of justice, lying to investigators) — is bound to be misinterpreted (read: spun) by ideologues at both ends of the political spectrum.

Lefties (in addition to being disappointed that their favorite bete noire, presidential main-man Karl Rove, has seemingly evaded the prosecutor’s net) will feel that some of the wind has been knocked out of their sails because no crime was charged in connection with the underlying revelation of erstwhile CIA agent Valerie Plame’s identity. And righties will revel in that same fact.

But there is no reason for either joy or sorrow in Mudville. Mighty Casey (Fitzgerald) didn’t strike out. He has, in essence, only taken a base on balls. And just as a base on balls doesn’t count as an at-bat, in some ways Fitzgerald still hasn’t stepped up to the plate. I suggest that what he may have done is cork a bat for his next up.

The obstruction charged late last week against Libby, as the grand jury’s time was running out, prevented the prosecutor from furnishing the one element of the underlying crimes that may be the most difficult to prove: mens rea, as it’s known in the criminal law (i.e., a culpable state of mind). But be assured: The last out in this game is still to come.

First, we know that Fitz intends to continue the investigation, albeit with a new grand jury, and the new grand jury won’t be starting from scratch — not by a long shot.

Second, the fact that Libby wasn’t indicted for any of the possible classified-information-related offenses doesn’t mean he still can’t be, since the special prosecutor has the prerogative of getting a superseding indictment from the new grand jury. Thus, Libby is still technically under the gun. And neither Karl Rove nor a variety of others whose participation was described in shadowy terms are as yet off the hook.

The first 25 paragraphs of last week’s indictment of Libby laid out a factual scenario, replete with the identity (if not by name, then by title) of the entire cast of characters. When carefully parsed, the indictment seems to set out the elements of at least one of the underlying classified-information crimes, if not both.

For example, the indictment indicates that the White House was well aware that Valerie Plame (spouse of envoy Joseph Wilson, whose pre-war debunking of a uranium link between Niger and Saddam Hussein had clearly angered the administration) was a covert operative.

The indictment also makes it clear that Plame’s status at the CIA was classified and that disclosure of such status could jeopardize national security.

Further, the indictment states that Libby was authorized to have access to classified information and takes pains to point out that he was obligated not to disclose that information and that he had signed a “Classified Information Nondisclosure Agreement” — the primary purpose of which was to let its signatories know that disclosure of classified information is a big no-no.

Voila! All of the elements — at least of the Espionage Act, if not the Intelligence Identities Protection Act — have been made out in the indictment. So why go to all the trouble of setting up the factual predicates for violations of the classified-information statutes (especially when he didn’t have to) and then stop short of charging anyone with them?

The explanation Fitzgerald gave during his press conference (that he was balancing the interests of the First Amendment with the wisdom of charging the crime) doesn’t fly. And his expressed concern that the U.S. statute governing classified information not become subject to the loose application that has characterized its British analog (i.e., the “Official Secrets Act”) also rings hollow, especially given the fact that during his press conference he trumpeted the serious violations of national security the conduct in this case appears to have constituted.

No, the real reason Fitz laid out as much factual detail as he did was to show the world (and in particular, the world within the White House) that he has the goods and that he won’t hesitate to drop the dime on some additional malefactors, particularly Vice President Dick Cheney. Let’s face it: Libby is only the consigliere to Cheney’s don.

Even though the threat of spending 30 years in the pokey will be a powerful incentive for Libby to cut some kind of deal that might include turning on his boss, the possibility of additional charges of revealing classified information being made, particularly against Cheney, is even more powerful, since at this point Cheney doesn’t appear to be at risk of an indictment.

This much is certain: Libby’s case will never get to trial, primarily because such a trial could become precisely the kind of exposé of the administration’s motives and actions in the run-up to the war that Bush and Cheney were worried the indictments would bring about. It would be their worst nightmare to have their war machinations presented to a jury of 12 ordinary citizens in the District of Columbia (read: predominantly African Americans). They would be sitting in as proxies for the families of the 2,000-plus military fatalities in Iraq and the plurality of the country that opposes the war. The risk there is not just exposure to the possibility of conviction in Washington, D.C., but a subsequent prosecution in The Hague as well.

Yes, my friends, Fitz is about to grab the pine-tar rag, choose another very special piece of lumber, and step back into the on-deck circle for the home run that is sure to follow. Batter up!

The hermetic sealing of the Senate chamber  on Tuesday,
following the invocation by Majority Leader Harry Reid of a little-used
provision of the Senate’s rules, may have demonstrated something far greater
than the rival parties’ capacity for playing “gotcha last;” it also proved that
the Senate can accomplish more, in a shorter time, behind closed doors, that it
ever seems to be able to in the full glare of the public eye.  Once C-Span,
spectators, staffers and other hangers-on were ejected from the Senate chamber,
the Senate accomplished in less than three hours what it hasn’t been able to
accomplish in 18 months—getting one of its recalcitrant committees to honor a
promise to finish an investigation into the misuse by the Bush administration of
intelligence about WMD’s, one which it’s been dragging its feet on for all that
time. 

 

If there’s a lesson here, it may be that sunshine is not
the universal disinfectant proponents of open government, freedom of
information, and the like actually believe.  It may actually be an occasional
repellant. Of course, that’s not to sanction the many abuses of the public’s
right to know perpetrated by the administration of Boris Bush and Natasha Cheney
(the latter being the one that brought us the famous “secret energy task
force”). But just as we marvel at the mystery of what actually happens to the
light in our refrigerators when we close the door, but are never tempted to get
in and close the door behind us to find out, it was far better that we saw the
light that emerged after the Senate’s doors were re-opened.  Which is not to say
that I would have minded being the proverbial fly on the wall during those
roughly three hours.

 

For anyone like me, who’s fascinated by C-Span‘s
coverage of Congressional goings-on (I first got hooked during the Bert Lance
hearings—yes, that makes me a dinosaur, but how many people who still have all
their teeth remember the cartoon characters Boris and Natasha, for that
matter?), the machinations of the gang of aging white men who comprise the U.S.
Senate are ten times  better than any episode of “Bored Housewives” (or whatever
the name of that insipid show is).  The only problem is, the cameras, I’m
afraid, sometimes get in the way of our deliberative bodies’ real work—getting
something meaningful done.  So, even though it will rank up there in the
pantheon of all-time television moments, the announcement by Senator Frist that
he could diagnose a person’s neurological condition just by looking at a video
of them ,
that moment, and all the histrionics accompanying the shameful meddling by the
Senate in the Terry Schiavo tragedy, graphically demonstrated how jockeying for
public eyeball position distracted senators from doing the country’s business. 
I’m beginning to think C-Span should title its coverage of what goes on on the
floor of the Senate as “The Posturing and Bickering Shows.”

 

In a way, I’m sorry the country didn’t get to see, in real
time, the miraculous moment when the Democrats emerged from their
three-year-long persistent vegetative state caused by the trauma they inflicted
on themselves in voting to give the President the authority to wage war in
Iraq.  Benefiting from an apparent reverse orchiectomy (with apologies to my
hero, Lance Armstrong), the Democrats finally stood up to the evasion and phony
lip service they’ve been subjected to for lo these many months.  Enough of the
bogus “my good friend, Senator So-and-so,” and “the Honorable Gentleman/Gentlelady”
crap, a charade we’d already seen viciously outed in the three-word epithet
uttered by Dick Cheney (the Senate’s “president”) to Patrick Leahy in the
cloakroom of that august body. 

 

Any further doubt we had about the collegiality of the band
of Senate brothers was firmly resolved when, in a speech responding to the
apparently outlandish suggestion by Senator Tom Coburn that New Orleans could
use use $250 million dollars to rebuild a portion of its destroyed interstate
highway more than the 50 residents of a remote Alaskan island could use it to
build a bridge to their outpost they obviously never needed or wanted, Senator
Ted Stevens, in what the Washington Post characterized as a “hissy fit”, engaged in the ultimate act of gentility by threatening to resign from the
Senate and be taken out on a stretcher (how did they resist that temptation?).
Then, with veins popping and head trembling, he bellowed his response to
Coburn’s suggestion: “NO”.  And, of course, he was overwhelmingly supported by
the majority of his fellow porkmeisters. So much for the dignity of the Senate.

 

At a time when virtually everything from gory surgical
procedures to tearful testimony in murder trials can be viewed on one TV channel
or another, and when broadcasting such other spellbinding events as Supreme
Court arguments (yawn!) to the administration of lethal injections to
condemned murderers (yikes!) is being debated, it may be time to take a
step back, and even to see whether we can put back some of the milk that’s been
spilled from the TV bottle. It’s likely to remain easier to consume there.

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Since the momentous announcement of the indictment
of Scooter Libby, pundits on the right, and the thundering herd of apologists
for the Bush administration, have trumpeted their elation — first that no one
(including Libby) was indicted for the crime of outing a covert CIA agent, and
second, that Karl Rove wasn’t indicted at all.(See my “Fitz’s Knuckle Ball.“) Their talking point seems to be
that the fact the grand jury didn’t charge a criminal violation of one of the
classified information statutes must mean (or at least can be spun to mean) that
neither Libby, nor any of the other officials implicated in the outing of Plame,
did anything wrong (with a capital W) in doing so, even if Libby himself may
have done something wrong (with a small w) in lying about it.   David Brooks said
it best, during his Sunday appearance on Meet the Press:

[T]he American people have to know that the wave of
hysteria, the wave of paranoia, the wave of charges and allegations about Karl
Rove and everybody else is unsupported by the facts.

This, of course, is an echo of the standard
established by this White House for judging the seriousness of the conduct in
this case. Recall that at one point the President and his spokesperson, Scott
McClellan,  proclaimed repeatedly that anyone “involved” in the leak at issue
would be fired from the administration. 

This was consistent with a well-known personal
bugaboo of Bush’s regarding leaks, not so much (in fact, not at all) because of
their effect on the integrity of government, but because of Bush’s obsession
with secrecy, an axiom for the way this administration conducts its business.
But as it gradually became obvious that White House officials were, in fact,
“involved” in leaking, and more importantly, as the identity of one of those
White House officials in particular came into focus, the president quickly
recast his standard of tolerance for leakers in his midst by raising the bar for
discipline to the commission of a crime.  In other words, it became OK with the President,
and wouldn’t disqualify anyone from continued employment by him, if they
violated his own well-known prohibition against leaking, compromised national
security, or, for that matter, even lied about it to him or to the press, just
as long as they didn’t get caught by anyone with the power to slam the jailhouse
door on them.

What is misunderstood about the indictment in this
case, or indeed, about the criminal law altogether, is that it is entirely
possible for an act to be “wrong,” judged by any generally-accepted standard
(i.e., moral, ethical, and yes, even legal), and yet not  rise to the level of
criminality.  The leak of Ms. Plame’s identity by Libby and others may have
been, and undoubtedly was, wrong, and even arguably illegal, but what facts the
prosecutor was able to establish (hindered, in part, by Libby’s treachery) were
not sufficient, in his estimation, to establish violations of applicable
criminal statutes.  Prosecutors are loathe to charge crimes if they think
they’re going to have any difficulty proving them.  That hurts their batting
averages, and Fitzgerald is, at least so far, batting at Hall of Fame levels.

But for anyone to take any comfort from the absence
of a criminal indictment on the charge of outing a covert CIA operative, as
though the whole thing had been given the Good Housekeeping seal of approval, is
perverse, because the clear image that emerges from the indictment is that what
was done in the leaking of Ms. Plame’s identity and employment was wrong, on any
imaginable basis, if for no other reason because of the harm it inflicted on
her, and on her country.  This is especially significant given the fact that no
one else, not Congress (Sam Ervin, where are you now that we need you?), and
certainly not the White House, has shown the slightest inclination to conduct a
parallel investigation of the incident, broader in scope and less stringent in
procedure than the one conducted by the special prosecutor.  Thus, the last word
on the propriety of what was done by operatives of this administration in this
disgraceful episode will hinge on the artificial standard of criminality, and
that will be an outrage.

If you read the indictment (and I suspect many more
people claim they’ve done so than actually have, based on some of the
off-the-wall interpretations of the document we’ve been treated to in the last
48 hours), what comes through very clearly is: first, the identity (and worse,
the employment status) of Valerie Plame got disclosed by one or more White House
functionaries, and second, the revelation (i.e., leak) violated the classified
nature of that information, and, in the process, endangered a CIA agent and
compromised national security as well.  The indictment makes that point very
clearly. So did Fitzgerald at his press conference announcing it (recall his
hyper-patriotic, nearly pontifical statements.)

But (admittedly a big but) what the indictment
stops short of doing is charging that the revelation of classified information,
as damaging as that may have been to national security, violated the arcane,
narrowly-defined crimes encompassed by the Intelligence Identities Protection
Act of 1982, or by the Espionage Act of 1917. 

The difficulty of proving violations of the IIPA
has long been touted by the defenders of the White House leak as a reason, not
only that a crime was not committed in doing so, but that nothing that was done
was wrong either.  Indeed, one of the self-satisfied authors of the IIPA (also,
not surprisingly, one of the principal talking-head apologists for the
administration in this affair), Victoria Toensing, was quoted in the LA Times as
saying, “what is it that somebody did wrong if they didn’t break the law?”
I guess ruining a CIA agent’s career,
endangering her (and arguably others’) life and compromising this country’s
national security at a time of war doesn’t qualify as “wrong,” in Ms. 
Toensing’s world.

It must be remembered, though, that the standard
for criminality imports two very important criteria that don’t exist under any
other standard: first, that every one of the elements of what a statute defines
as criminal conduct, some of which can be quite esoteric (e.g., to be a “covert
agent, under the IIPA, one must have served outside the United States within the
last five years) are satisfied, and second (even more importantly), that all of
those elements can be proved by a standard that exists only in criminal
law—beyond a reasonable doubt.  Fitzgerald most definitely was not saying that
what was done to Valerie Plame, or to the country’s national security, wasn’t
wrong, damaging or even reprehensible; he was just saying he couldn’t prove it
was a crime.

Blessedly, there isn’t a criminal statute that
applies to every wrong in our society.  But when we start using criminality as
the go-to criterion for judging the rectitude of human behavior, especially
behavior that has seriously deleterious consequences, we have abandoned several
important layers of responsibility for that behavior, and in the process,
denigrated the quality of life in a civilized society.

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The indictment of “Scooter” Libby, ONLY Scooter Libby, and ONLY on investigation- related charges (perjury, obstruction of justice, lying to investigators), is bound to be misinterpreted (read: spun), by ideologues on both sides of the political spectrum. Lefties (in addition to being disappointed that their favorite bete noire, Karl Rove, has seemingly evaded the prosecutor’s net) will feel like some of the wind has been knocked out of their sails because no crime was charged in connection with the underlying revelation of Valerie Plame’s identity (a key element in their assertion that such revelation was motivated by the need to discredit a vocal critic of administration’s casus belli for the war–Iraq’s possession or acquisition of nuclear weapons capability). And righties will revel in that same fact (i.e., since no crime was committed by the Plame outing, the outing was nothing more than a legitimate defense against the attack on the motivation for the war–in other words, politics as usual).

But, to continue Patrick Fitzgerald’s somewhat tortured baseball analogy, there is no reason either for joy or sorrow in Mudville. Mighty Casey (a/k/a Fitzgerald) has, in essence, taken a base on balls, four (or, in Libby’s case, five) lousy pitches, none of which he could really swing at, much less hit out of the park. And, just like a base on balls doesn’t count as an at-bat, in some ways Fitz still hasn’t stepped up to the plate. But, I suggest that what he may have done is to cork a bat for his next up.

Yesterday’s indictment was dictated by time more than anything else. With the grand jury’s term expiring today, if any indictment was going to be returned, this was the day, and I, for one, don’t question Fitzgerald’s statement that Libby’s obstruction of the investigation prevented him from getting to the truth about the so-called “underlying” charges (e.g., those associated with outing a CIA operative). Indeed, the obstruction charged against Libby prevented the prosecutor from furnishing the one element of the underlying crimes that may be the most difficult to prove: mens rea, as it’s known in the criminal law (i.e., a culpable state of mind). But, be assured: the last out in this game is still to come, and the indictment is a shot across the bow for a whole host of characters in this unfolding drama that should indicate to them sighs of relief would be premature.

First, we know that Fitz intends to continue the investigation, albeit with a new grand jury. That’s no big deal, since the evidence that was presented to the first grand jury will be available, word-for-word and page-for-page, to the next one for their examination and, if necessary, for further elaboration or elucidation either by the prosecutor or by additional witnesses. In other words, the new grand jury won’t be starting from scratch—not by a long shot.

Second, even the fact that Libby wasn’t indicted for any of the possible classified-information-related offenses doesn’t mean he still can’t be, since the special prosecutor has the prerogative of getting a superseding indictment from the grand jury which is to follow (not unlike what the prosecutor in Texas did in Tom Delay’s case). Thus, Libby is still, technically under the gun, and the indictment itself is rife with indications that there is another shoe yet to drop, something Fitz also strongly foreshadowed in his responses to reporters’ questions during his press conference. And, of course, neither Rove nor any of a variety of other characters whose participation was described in shadowy terms are, as yet, off the hook

Under the applicable federal rule, indictments are only required to be a “plain, concise, and definite written statement of the essential facts constituting the offense charged.” The rule goes further to say indictments “need not contain a formal introduction or conclusion.”

The Libby indictment goes considerably beyond what the rule requires, or even envisions. It is what’s called, in courthouse vernacular, a “speaking indictment.” The purpose of a “speaking” filing, in any court proceeding, is to show the other side some of the stronger cards you’re holding in your hand, and this indictment is no exception.

The first 25 paragraphs of the indictment take great pains to lay out a factual scenario, replete with the identity (if not by name then by title) of the entire cast of characters, which, when carefully parsed, seems to set out the elements of at least one of the underlying classified information crimes, if not both. For example, the indictment indicates that the White House was well aware than Valerie Plame was a covert operative. Paragraph 9 states:

Libby was advised by the Vice President of the United States that Wilson’s wife worked at the Central Intelligence Agency in the Counterproliferation Division. Libby understood that the Vice President had learned this information from the CIA.

Anyone with knowledge of the CIA’s organizational chart (but particularly Cheney and Libby) knows that the Counterproliferation Division is part of the CIA’s Directorate of Operations (i.e., where the spooks are), and not where the more benign employees (e.g., analysts) are assigned. The indictment also makes it clear that Plame’s status at the CIA was classified, and that disclosure of such status could jeopardize national security.
Paragraph 13 of the indictment takes the guilty knowledge of Plame’s status one step farther:

Libby spoke by telephone with his then Principal Deputy and discussed the article. That official asked Libby whether information about Wilson’s trip could be shared with the press to rebut the allegations that the Vice President had sent Wilson. Libby responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line.

The indictment makes it clear that Libby was authorized to have access to classified information (Paragraph 1), but also takes pains to point out not only that he was obligated not to disclose that information, but that he had signed a “Classified Information Nondisclosure Agreement” the primary purpose of which was to let its signatories know, in no uncertain terms, that disclosure of classified information would be a big no-no.

Voila! All of the elements, at least of the Espionage Act (if not the Intelligence Identities Protection Act), have been made out in the indictment. So, why go to all the trouble of setting up the factual predicates for violations of the classified information statutes in the indictment (especially when he didn’t have to) and then stop short of charging them? The explanation he gave during his press conference (i.e., that he was balancing the interests of the First Amendment with the wisdom of charging the crime) does’t fly. Subpoenaing reporters, sending one to jail and threatening to do the same to another one demonstrate, I suggest, his less-than-overarching concern about the First Amendment. And, his expressed concern that the U.S. statute governing classified information not become subject to the loose application which has characterized its British analog (i.e., the “Official Secrets Act”) also rings hollow, especially given the fact that he trumpeted, loud and long, during his press conference the serious violations of national security the conduct in this case appears to have constituted.

No, the real reason to lay out as much factual detail as he did was for Fitz to show the world (and in particular, the world within the White House) that he has the goods, and that he won’t hesitate to drop the dime on some additional malefactors, particularly, Cheney. Let’s face it: Libby is only the consigliere to Cheney’s don. Even though the threat of spending 30 years in the pokey will be a powerful incentive for Libby to cut some kind of deal that might include turning on his boss, the possibility of the additional charges of revealing classified information, particularly against Cheney, is even more powerful since, presumably, Cheney does’t appear to be at risk of a truth-telling-related indictment.

Let’s agree on something else right now: Libby’s case will never get to trial, primarily because Bush and Cheney will never allow such a trial to become precisely the kind of exposé of the administration’s motives and actions in the run-up to the war they were worried the indictments would constitute. It would be their worst nightmare to have their war machinations presented to a jury of 12 ordinary citizens in the District of Columbia (read: predominantly African Americans) who would be sitting as proxies for the families of 2,000 plus military fatalities in Iraq and the plurality of the country that opposes the war. The risk there is not just exposure to the possibility of conviction in Washington, D.C., but a subsequent prosecution in The Hague as well.

Yes, my friends, Fitz is about to grab the pine tar rag, choose another, very special, piece of lumber and step back into the on-deck circle for the home run that is sure to follow. Batter up!

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Bill Clinton, in his book My Life, explained that the reason he dallied with Monica was because he could. What he meant by that was that he had the opportunity and knew no one was going to stop him. The energy industry has obviously adopted that rationale.

Having seen how successfully it could artificially spike the price of gasoline during the past two months by using everything from hurricanes to China as an excuse, the industry is about to do it to us again; only this time the commodity is natural gas.

In a supplement stuffed into its September bills, our own local energy utility, MLG&W, has predicted an imminent 71% increase, based on government estimates which are, in turn, based on — you guessed it, what the gas companies tell it. And what’s our “hometown” utility doing about it? Telling us to put on another pair of socks.

We have come to realize that oil companies have been profiting excessively at our expense (“gouging” us, to put it bluntly). The same is true for the gas industry, most of which is also owned by oil companies. Thanks to deregulation and the virtual elimination of price controls at the local and — at least in Tennessee — state levels, gas production and transmission companies, as well as the retailers of gas (e.g., MLG&W), have the unfettered ability to charge customers whatever they want.

The result has been a nearly 200 percent increase in the price of gas since 1999.Though the price of gas has been deregulated, the markets for gas are still, to a limited extent, controlled by two federal agencies, the Federal Energy Regulatory Commission (FERC) and the Commodity Futures Trading Commission (CFTC). So it should tell us something quite profound that even with that limited authority, and even though those agencies are populated by appointees of an oil-and-gas-besotted administration, they have levied more than $2 billion (yes, that’s “billion,” with a “b”) in fines against gas companies in just the last three years for manipulating the natural gas market.

The manipulation of energy markets has a vivid recent history. Remember Enron? It succeeded in ripping off California’s electric power consumers to the tune of $9 billion. Energy rip-offs aren’t hard to perpetrate, given the absence of competition and the unlimited elasticity of consumer demand.

As for MLGW, the only check on what it decides to charge for gas is the city council’s oversight of its budget. As a practical matter, however, the city council has little to say about what MLG&W charges for the gas it purchases and re-sells to its customers; so it’s basically whatever the market (that’s us) will bear. Remember the winter of 2001, when some folks got bills that were two or three times the normal charge?

MLGW has been profiting quite nicely, thank you. According to its annual reports, the utility’s margin on gas sales during the past several years has been between 27 percent and 42 percent Not bad for a publicly owned, supposedly not-for-profit utility that’s supposed to provide for us, its customers (and, not coincidentally, also its owners), at the lowest possible rate. MLGW tells us it hedges against the increased cost of gas by speculating in the futures and spot markets (manipulated though they may be), but does it look to you like it’s passing that savings along to us?

Even though MLGW has known for many months (precisely because it’s in the futures market) that it would be dramatically jacking up our bills, it waited until September to tell us – leaving us virtually no time to budget for heating bills that may shock us even more than the ones in 2001 did.

MLGW levies a “purchased gas adjustment” charge on us that has, on occasion, actually exceeded the cost of the gas we’ve consumed, and then it stealthily stops itemizing that charge on our bills so we can’t actually see how dramatically that charge jacks up our bills. Then, to top it all, it gives us little more than two weeks to pay our bills, and if we don’t, it tacks on a charge that would be considered usurious even in the states where credit card companies have hijacked interest rates.

Sooner or later, the chickens will come home to roost for the oil and gas companies. Meantime, us clucks will just have to go find those extra socks.

P.S. Don’t be fooled by the recent “drop” in gasoline prices. With third quarter earnings about to be announced, with a recent survey showing that 90 percent of Americans believe they’re being gouged, and with bills being introduced in Congress to levy an excess profits tax, the oil companies are dong their best to blunt the consequences of what will soon be announced as record profits. Be assured: This drop in gasoline prices is temporary; By the time winter is over, we’ll have used up some extra shoe leather, too.

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