OUT OF CONTROL?….One of the points frequently made by right-wing critics of Patrick Fitzgerald is that he must have figured out pretty quickly that outing Valerie Plame wasn’t itself a crime, and at that point he should have simply terminated his investigation. Result: no questioning of Scooter Libby, no charges brought, no conviction.

The Washington Post repeated this point in its editorial today, but Wagster points out that it’s specious:

The indictment dates the first instance of lying to the [FBI] investigators on October 14, 2003. Patrick Fitzgerald was not appointed as Special Prosecutor until December 30, 2003. Investigators had already spent three months speaking with witnesses who contradicted Libby’s account.

….Fitzgerald didn’t go on a hunt for administration blood. He did not lay perjury traps. He walked into an office and was immediately presented with some damning facts about a possible crime. He would have been derelict in his duty if he did not pursue this matter.

I’ll add that the perjury charges (lying to the grand jury) date from early March 2004, a mere eight weeks after Fitzgerald’s appointment. There’s no way that Fitzgerald had come to any conclusion about the underlying outing charges by that point. By the time he finally did, Libby had already lied about Plame on four separate occasions.

Now, I’m still curious about whether Fitzgerald thinks that outing Plame was itself illegal. During his initial press conference he said that Plame’s identity was classified, but he carefully didn’t say whether she was “covert,” a term that has a precise legal meaning. He also suggested that state of mind was important: under the law, outing Plame might have been a crime only if it was done with intent to harm the United States. But whatever else you can say about the leakers, nobody thinks they were deliberately trying to undermine American national security.

The fact that Fitzgerald didn’t indict Richard Armitage, who originally leaked Plame’s name to Robert Novak, suggests pretty strongly that he didn’t think he could win a case based on the leak itself. My guess is that this is because he decided the law didn’t support an outing charge. IIPA didn’t apply because Plame didn’t fit its precise rules, and the Espionage Act didn’t apply because nobody had any deliberate intent to pass along classified information with an intent to harm the United States. More here.

It’d still be nice to hear Fitzgerald’s take on this, though. But of course we never will.

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