Yesterday both the Prosecution and Defense rested in the Scooter Libby perjury trial. Exactly how the case will turn out is still anyones guess. With the defense arguing that "Libby was a busy man" and "simply couldn't remember" - it's possible that some of the jurors could buy his story even though at least seven people contradicted what he told the grand jury about when and where he first heard about CIA agent Valerie Plame-Wilson.
It's possible... except for one bit of testimony. One question that Libby put to White House Counsel David Addington that puts a match to his house of cards defense case.
The issue as I last discussed concerning the Libby trial is - what is his motivation to lie be? The most obvious answer to that question is the likelyhood that he realized that an CIA employee working in the Counter Proliferation Division just might be an undercover operative, and that revealing their identity was a crime.
Did Libby consider this after he'd revealed Plame's identify to both Judith Miller and Matt Cooper?
Yes he did, because he asked David Addington about it.
A: He asked me how you would know if you met someone from CIA if they were undercover. I responded when I worked out there, you'd ask if someone if they were undercover. He asked if they introduced themselves how you'd know. I told him you wouldn't know unless you asked or saw a piece of paper that said it was classified. (Like the INR Report!) I volunteered to him I could get him a copy of IIPA that makes it a crime to reveal identity of covert agent. I took it to his office and gave it to him.
From this we can see that Libby knew it was a crime and that he had clearly considered the possibility that Wilson's wife was undercover even if he didn't mention her specifically, just like Robert Grenier the CIA's Iraq Mission Manager who was the second person tell Libby about "Wilson's wife" following Marc Grossmam who had mentioned it earlier in the day on June 11th based on information he read in the INR Report on Wilson's trip.
Q. Some time after you testified in the GJ in January 2004. Did you continue to think about that question?
I was going over it in my mind. I was hoping that I hadn't mentioned anything to Mr. Libby, I really didn't remember anything new. But what I did remember was the way I felt immediately after.
I briefly felt guilty, that I had relayed too much information. I was going through a mental justification about why it was alright to have relayed this to Mr. Libby.
Q. What part were you having concerns about. Having mentioned that Wilson's wife worked at the CIA, revealing the identity of an agency officer, although it was indirect.
I didn't know her name, so I didn't give her name, but by saying Joe Wilson's wife worked at the CIA, I was revealing the identity of a CIA officer. It wasn't absolutely necessary, that is information that we guard pretty closely, and if we don't have to say it, we don't.
Q. You went through a mental justification. Senior Govt official, has every security clearance known to man. He may have met this person in the course of his business, this person may have briefed him. Did you come to any conclusions?
It wasn't as if one day I had a revelation. But as I thought about it over time, as I remembered specifically I developed a growing conviction that I had said it, I said to myself wake up and smell the coffee.
During defense cross examination Grenier went even further.
Z If the person at the CPD that you spoke to did not tell you Wilson's wife was covert. Why were you feeling uncomfortable.
G Because I knew that that person could be undercover. We were talking about a unit in DO the vast majority of whose employees are undercover.
It's clear that much of the prosecution's case depend on this issue particular based on this exchange between counsel and Judge Walton.
Walton: I just talked to a security expert. And I think if jury doesn't have somebody who explains this, they'll be confused about whether there was a violation. As I understand it there was a violation of 5A, if they start looking at those, they'll become confused. Even given what was explained to me, I'd have to have some testimony in order to make the assessment you're asking for.
B: The jury is not going to be asked to assess whether there was a violation, only
Walton: Only whether he thought there was a violation.
Walton: What he did, is it from Govt's idea that he could have violated something without also violating 5A?
B: No, he would also violate 5A, including paragraph 3.
W: The issue they have to focus on is whether defendant would have thought that conceivably there was a problem,he would have obligation to check. It seems to me they focus on his mental state. If he had concerns about whether it was appropriate to reveal this.
B: The real issue here is that the defendant made up a story that took the classified nature of information out of the picture.
W: You're saying he did that because he throught there was a violation.
J There's no evidence he is worried about this.
B There's already BEEN evidence–the question to Addington.
W: Conceivably, maybe it was only the political revelation, but maybe it did. And I don't think that that determination can be made. Question is whether there is sufficient evidence in the record that he didn't want that out there. If he knows he signed a nondisclosure, that seems relevant. The jury has a right to be able to take that into consideration.
What Judge Walton is describing are the requirements of the Classified Information Non-Disclosure Agreement that anyone with a Security Clearance is required to sign. That agreement requires that a person in possesion of classified information must first verify the level of security of that information prior to sharing it even with other cleared persons. You have to ensure they have a need to know.
Addington had given him a copy of the IIPA which makes it a crime to knowingly reveal the identity of covert agent (but not a crime to do so unwittingly) - so Libby made sure that he never really knew if Plame was covert or not, that way he wouldn't be liable for violating that law - but by sharing information about Wilson's Wife which came from the classified INR with reporters, Libby (as well as Fleischer, Rove and Armatage) violated the NDA.
Fliescher to his credit figured it out as soon as the CIA began their investigation.
Fl As I recall it was Amb Joseph Wilson's wife. I was absolutely horrified. I thought I may have played a role in outing, oh my god did I play a role in outing a CIA officer, even though I had no idea that she was classifed or covert,
The odds that Libby didn't also figure this out are somewhere between slim and nil. He knew what he'd done and unlike the others he choose to come up with a cockamamie story about Tim Russert telling him about Plame.
It's possible that admit all the smoke and mirrors of the defense, the false promises that Vice President Cheney, Karl Rove and Libby would testify, the jury just might become confused on this point as it appears Judge Walton is somewhat confused.
If so, Libby will walk.
If not, he's be convicted and immediately appeal waiting for President Bush to pardon him on his way out of office in 2009.
Not exactly a satisfying ending either way. He's to hoping we get the latter, rather than than the former outcome.
Vyan
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