Conspiracy and the White House Iraq Group

Putting those 16 words in the SOTU, or more generally lying the country into an unnecessary war, wasn’t a crime, so no one can be charged with conspiring to do it.

No one but God and Patrick Fitzgerald really knows what’s going on in the Plame investigation, and neither of them has told me. So I’m guessing along with everybody else.

But I tend to agree with Tom Maguire in attributing only modest significance to the Wall Street Journal story reporting that the prosecutor is looking back in time before Wilson’s op-ed of June 6, 2003, and looking at the entire White House Iraq Group rather than Rove and Libby alone.

That is, I think the story is likely correct, but I don’t think it’s any surprise.

One paragraph in the story seems to have excited several of my friends:

Mr. Fitzgerald’s pursuit now suggests he might be investigating not a narrow case on the leaking of the agent’s name, but perhaps a broader conspiracy.

“Aha!” some of my email correspondents say. “At last, Fitzgerald is going after the whole conspiracy to lie us into war by making up fairytales about uranium from Africa.”

Sorry, but no.

Under the law, “conspiracy” isn’t a free-standing charge. You can only “conspire” to do something that is itself a crime. There’s no “conspiracy to be naughty” statute.

I’ve been guessing for months that at the end of the day Fitzgerald will charge Rove and Libby with violating 18 U.S.C. 793(d), a section of the Espionage Act. They did so, I expect him to allege, by revealing to someone not entitled to know it information relating to the national defense which they had reason to believe could be used to injure the United States: to wit, telling Novak, Cooper, and others that Joseph Wilson’s wife worked for the CIA. That information, once it was published, enabled foreign intelligence agencies to identify the human “assets” Plame had recruited in their WMD acquisition and trading programs. That, in turn, would not only deprive us of information from those spies but also make it harder to recruit spies in the future.

I also expect that Fitzgerald will charge other officials with conspiring with the primary defendants to violate that law. Those other people, including members of the White House Iraq group, could either be indicted for conspiracy (i.e., conspiracy to break that particular law) or named as unindicted co-conspirators, which would make their actions admissible evidence against those who were indicted as members of the conspiracy. In addition, I expect ancillary charges of false statements, perjury, and obstruction of justice relating to attempts to frustrate the investigation, and perhaps of conspiracy to commit some of those ancillary offenses.

In my optimistic moments, I have allowed myself to imagine that Dick Cheney might be named as an unindicted co-conspirator. I have largely managed to repress the thought that Cheney might be indicted, or that George W. Bush might also be named as a co-conspirator. (No matter what the evidence shows, I strongly doubt that Fitzgerald would want to face the constitutional and politcal sh*t-storm that would be provoked if he indicted a sitting President.)

The Wall Street Journal article slightly reinforces those beliefs in that it shows that the WSJ reporters, and their sources, think the same thing I’ve been thinking. But there’s no actual new news there, as far as I can see.

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: