JURIST Guest Columnist Sandra Jordan of the University of Pittsburgh School of Law, former Associate Independent Counsel for the Iran/Contra prosecutions, says the prosecution of Scooter Libby and perhaps others in the Fitzgerald probe of the leak of CIA operative Valerie Plame's identity will be a delicate process that may end up telling us more than we should know...
The Fitzgerald probe centers on the unauthorized release of the identity of Valerie Plame, wife of former ambassador Joseph Wilson. Plame was an undercover operative, specializing in weapons of mass destruction, and had an extensive undercover career with the CIA. The unauthorized release of her identity compromised both her safety and the safety of her family, associates and other CIA operatives here and across the globe. Moreover, because of her special status as a non-official cover (one not attached to a state department and operating in very sensitive cases), her role within the CIA, her career, and the identity of other undercover operatives has been threatened. At this point, the CIA has not yet evaluated or assessed the damage done by Plame's outing, but one can expect the impact to be great.
Libby is not charged as the source of the unauthorized leak of Plame's name. Instead, he is charged with lying about it repeatedly, both to government agents and to the federal grand jury. In doing so, he obstructed justice by intentionally impeding a federal investigation. Using perjury, false statement, and obstruction of justice allows the prosecutor to bring serious federal criminal charges without involving the classification hurdles that might result if the case centered on classified information.
Some view this case as much larger than the leak of classified information: an indictment of the war in Iraq and the flawed information that Bush offered in support of the use of military force. Others see Fitzgerald's indictment as nothing more than a political action against a forgetful and busy public servant, focusing on the cover up crimes rather than the underlying criminal act of the release of classified information. The truth lies somewhere in between.
Fitzgerald did not charge Libby with knowingly disclosing the identity of a covert agent. To do so, Fitzgerald would have to establish that Libby knowingly disclosed classified information at the time that he revealed it. This is a more difficult level of proof, and government officials were obstructing the evidence gathering process. Cover up crimes of the type brought in this indictment are very serious and are directed to an independent harm: the integrity of government investigations. Federal obstruction of justice statutes, for example, criminalize efforts to interfere with official investigations and to obfuscate and mislead investigators. Perjury requires a lie under oath, and Libby is charged with doing so on two occasions, both times to the federal grand jury investigating the matter. False statement charges criminalize the making of a variety of sworn and unsworn statement in matters within the jurisdiction of the government. Libby is alleged to have lied to the FBI on two occasions. Each of these offenses seeks to ensure that governmental functions are not disrupted or compromised and that an investigation can be resolved through truthful evidence gathering.
Each of the crimes charged may be brought ancillary to a primary investigation or alone. Here, the identity of the person or persons who initially disclosed the name of Valerie Plame has not yet been revealed. It was obvious from Fitzgerald's announcement that this underlying unauthorized disclosure of classified information charge might be forthcoming. Whether it is or not is irrelevant to the present charges which stand alone.
The grand jury is entitled to every person's evidence if it is to ferret out criminal activity. In this case their critical nature of the lies and obstruction is compounded because of the sensitivity of the information that was compromised. With a typical perjury or false statement case, the lie must be material and central to the investigation. Trivial lies, such as those concerning a sex partner, are not usually prosecuted as a federal offense. By contrast, here, the lie is directly related to critical governmental function: the operation of the CIA and its undercover agents. Plame's classified status was released by high ranking government officials and this signals to the world that our own government does not stand behind its agents and is willing to compromise operations around the globe. This disclosure gives hostile governments an inside look at the operation of the CIA, something the agency vigorously protected.
Because Plame is an ambassador's wife, this tells the world that that the CIA uses an ambassador's spouse as an investigative tool. The fact that Plame's cover was protected for many years, even from her neighbors and family, puts into question the status of other spouses of ambassadors who might also be working for the CIA. Moreover, the fact that this revelation came from our own government makes it that much more troubling. The serious damage from this leak will be felt for years to come, and it is quite possible that we will never know the extent of the damage, given the fact that an internal CIA investigation into the leak will also be classified. These lies and attempts to prevent a full investigation are of the most serious type.
The use of perjury, false statements, and obstruction of justice has become a frequent occurrence in difficult white collar investigations recently. The reason is because the government can more easily prove these crimes rather than the difficult crimes revolving on the disclosure of classified information. In addition, the very obstruction charge Libby faces suggests that he mislead investigators when they attempted to get to the heart of the matter of the leak. Proof of disclosure may be more difficult because it involves evidence that may itself be classified. In fact, if the evidence is not declassified for trial, then a prosecutor may have difficulty presenting a criminal case beyond a reasonable doubt.
Proof difficulties here should not be understated. The outing of Plame is public knowledge now, but the reasons for her classified status and her precise duties are not. In order to prove the disclosure of classified information, the government must first establish its classified nature and other factors surrounding its classification. This information is not always declassified for use at trial, and the need to know or compromise this evidence is not necessarily warranted. For example, if Fitzgerald had to make a choice to forego charges based on the classified information and instead focus on the serous felonies of falsification and obstruction, he made a wise choice indeed. The basis of these prosecutorial decisions is rarely revealed.
Prosecutions based on classified information can become compromised in many ways, as witnessed by the Iran/Contra investigation, which entailed a struggle between the executive and independent counsel over classified information. Ultimately, the convictions were reversed because of the exposure of immunized evidence, and much of the evidence that was excluded at trial was not authorized for public use.
Evidence in the case will invariably involve a detailed chronology of events in the Vice President's office and conversations between the VP and his staff, as well as between the president and his staff. Proof in the case will reveal just what was said in the president and vice president's office about Plame and her role in the CIA. The chronological details will, perhaps, tell us much more than we should know. After all, in this day of terror alerts, don't we want CIA operatives who are acting in our best interests to be safe from harm?
Sandra D. Jordan is a law professor at the University of Pittsburgh School of Law, where she teaches white collar crime, evidence, criminal law and scientific evidence. She served as an Associate Independent Counsel for the Iran/Contra prosecutions.