Maguire on Fitzgerald on Plame

Nothing the prosecutor said contradicts what the judge said: a crime was committed, and that crime wasn’t the one defined by the Intelligence Identities Protection Act, but the broader crime defined by the Espionage Act.

In his latest discussion of the Valerie Plame case, (about which his obession level matches mine, which is to say that we’re both well into clinical territory)

Tom Maguire of Just One Minute makes two profound mistakes: well under his quota, but perhaps he was just having an off-day.

First, Tom tries to walk past the flat statement by the judge in the case that the disclosure Judith Miller is keeping silent about was a crime, and that her use of it would also have been a crime. (That statement couldn’t be true about the Intelligence Identities Protection Act but would be true about the Espionage Act.) Tom cites in response two statements by the prosecutor that leave open the question of whether a crime has been committed.

Nice try, but Fitzgerald doesn’t actually contradict Hogan; he merely speaks with the caution appropriate to a prosecutor in dealing with a case in which the grand jury has not yet returned an indictment. Maguire makes no attempt to reinterpret the judge’s comments, which seem to me decisive on the question of whether he thinks a crime was committed, and which crime that was.

(Similarly, the fact that Fitgerald has told Rove’s lawyer that Rove isn’t a “target” simply means that Fitzgerald isn’t — or wasn’t, when that statement was made — confident that he has enough evidence in hand to justify an indictment. It doesn’t mean that Fitzgerald doesn’t believe that such evidence exists or that he isn’t working like a demon to accumulate such evidence.)

Maguire’s second mistake is to imagine that Congressional hearings “under bright lights” are, or were, an option in this case. I’m very sorry to inform Maguire of a fact that he no doubt deplores as much as I do, but right at the moment both Houses of Congress are run by Republicans, who are about as likely to investigate the misdoings of the Bush Administration as they are to appear on the floor naked and dance the macarena.

Recall that Porter Goss, then the chair of the House Select Committee on Intelligence, said of the Plame case that he might consider holding hearings if someone brought him “a blue dress and some DNA.” (Goss has since, of course, been rewarded for his loyalty, in good HMS Pinafore style, by being made Director of Central Intelligence.)

Surely Maguire doesn’t imagine that mere Democratic demands for hearings that never actually take place, or pseudo-hearings at which no witness could be compelled to testify, would substitute politically for a nice juicy criminal trial? (One of the DKos diarists makes a point I hadn’t considered: that the indictment of the President’s chief political strategist for “espionage” would be much more powerful than his indictment under the “Intelligence Identities Proection Act.”)

What might have substituted for — or even eventually forced — Congressional hearings would be Watergate-style press coverage. But that ain’t happ’nin’ neither. The current mainstream media are far less willing to stick their necks out in general than was the Watergate-era norm — witness the very delicate treatment of the Downing Street Memos — and in this case are so complicit that they’d really rather have it go away than make a fuss about it. (If it handn’t been for the CIA’s referral of the case to DoJ and, secondarily, some pressure from Blogistan, this story would have been buried completely, left in the limbo inhabited by the flight of the bin Ladens after 9/11 and the funny vote-counts in Ohio in 2004.)

Notice, for example, that none of the outraged editorials attacking Fitzgerald for doing his job has demanded that Rove resign or Bush fire him if he was, in fact, a source for the Plame revelation.


The invaluable PBD points to this Larry O’Donnell note, which points to a second judge who seems to have no doubt that non-technical crimes were committed:

In February, Circuit Judge David Tatel joined his colleagues’ order to Cooper and Miller despite his own, very lonely finding that indeed there is a federal privilege for reporters that can shield them from being compelled to testify to grand juries and give up sources. He based his finding on Rule 501 of the Federal Rules of Evidence, which authorizes federal courts to develop new privileges “in the light of reason and experience.” Tatel actually found that reason and experience “support recognition of a privilege for reporters’ confidential sources.” But Tatel still ordered Cooper and Miller to testify because he found that the privilege had to give way to “the gravity of the suspected crime.”

Judge Tatel’s opinion has eight blank pages in the middle of it where he discusses the secret information the prosecutor has supplied only to the judges to convince them that the testimony he is demanding is worth sending reporters to jail to get. The gravity of the suspected crime is presumably very well developed in those redacted pages. Later, Tatel refers to “[h]aving carefully scrutinized [the prosecutor’s] voluminous classified filings.”

Some of us have theorized that the prosecutor may have given up the leak case in favor of a perjury case, but Tatel still refers to it simply as a case “which involves the alleged exposure of a covert agent.” Tatel wrote a 41-page opinion in which he seemed eager to make new law — a federal reporters’ shield law — but in the end, he couldn’t bring himself to do it in this particular case. In his final paragraph, he says he “might have” let Cooper and Miller off the hook “[w]ere the leak at issue in this case less harmful to national security.”

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: