Challenge update

Tom Maguire responds to my challenge. Yes, VPW’s employment status was classified. That being the case, the charges of prosecutorial misconduct against Patrick Fitzgerald fall to the ground.

Tom Maguire, alone of those I challenged on the question of the classified status of Valerie Plame Wilson’s employment at the time Scooter Libby and friends started blabbing it all over Washington, responds. Yes, he says, her employment status was classified, but (maybe) she wasn’t, or couldn’t be proven to have been, a “covert agent” under the Intelligence Identities Protection Act.

But that makes nonsense of the Byron York/Glenn Reynolds/Victoria Toensing thesis that Patrick Fitzgerald is a Very Bad Man for running a big investigation where there was no underlying crime to investigate, and that therefore Scooter Libby is morally innocent because the lies he told the investigators and the grand jury took place in the course of an investigation that never should have happened. (More or less like Bill Clinton’s lies about Monica Lewinsky.)

If VPW’s employment by the CIA was classified information, as Maguire concedes it was, then revealing it could have been a violation of the Espionage Act, if the person doing the revealing had “reason to believe” that the information “could be used” to damage the United States. (If the information couldn’t be so used, then it shouldn’t have been classified.)

Whether anyone had actually broken that law, and whether that could be proven beyond reasonable doubt, and whether under the circumstances there should be a prosecution under Espionage Act (given what a potential threat it is to freedom of the press), couldn’t have been determined without doing an investigation. That’s what Fitzgerald was told to do, and that’s what he did. Moreover, Libby couldn’t have known when he testified that he was in the clear, giving him an excellent motive for perjury and obstruction of justice.

Whether Fitzgerald has proven that Libby was guilty of those charges is a question for the jury. But Fitzgerald is certainly innocent of the reckless charges made against him by the reckless partisans of the reckless ruling clique.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: