Answer: Sooo Fucked.

We all know the cover-up is usually more legally perilous than the original crime. But, in this case there was a re-election to secure and some things had to be sacrificed on that altar. Scooter Libby’s freedom was one of those things. Scooter is going to jail. He’s going to jail without an iota of a doubt…unless…he would prefer that his boss, Dick Cheney, go in his stead.

So far, I can clearly see Libby facing indictments on obstruction of justice, multiple counts of perjury (possibly dozens), passing classified information to those not cleared to see it, possible conspiracy charges, a possible violation of the federal espionage and censorship law, and, of course, the Intelligence Identities Protection Act of 1982.

That’s enough legal liability to convince your average Yale graduate that it is time to cut a deal. Let’s look at each of these potential counts in turn.

OBSTRUCTION OF JUSTICE

Miller’s account of her testimony makes it crystal clear that Scooter Libby discussed Joseph Wilson’s wife’s identity (if not necessarily her name) and her employment. And yet, he wrote a letter to Miller while she was in prison that suggested he had nothing to fear from her testimony because “the public report of every other reporter’s testimony makes clear that they did not discuss Ms. Plame’s name or identity with me.” Since Libby knew that Miller could not testify honestly to that effect, his letter constitutes a clear case of attempted witness tampering. As Bloomberg News explains:

Miller, 57, said she went to jail rather than testify because, unlike other reporters, she didn’t feel Libby had given her specific and voluntary permission to speak about their confidential conversations. She relented when Libby contacted her by telephone and letter last month, saying he had always expected her to testify.

Those communications with Miller may pose legal problems for Libby. His letter to her stated that “the public report of every other reporter’s testimony makes clear that they did not discuss Ms. Plame’s name or identity with me.”

Miller wrote in her Times article that Fitzgerald asked her to read that portion of the letter aloud to the grand jurors and asked for her reaction to Libby’s words. She said that part of the letter had “surprised me because it might be perceived as an effort by Mr. Libby to suggest that I, too, would say we had not discussed Ms. Plame’s identity. Yet my notes suggested that we had discussed her job.”

Bennett, Miller’s attorney, yesterday called that part of Libby’s letter “a very stupid thing to do.” Other lawyers suggested it could become part of any obstruction-of-justice charge Fitzgerald might bring.

Stupid or desperate? You decide. There is no escaping an obstruction charge over this incident. Scooter is toast.

MULTIPLE COUNTS OF PERJURY

We don’t know what Scooter Libby has told FBI investigators and the Grand Jury, but we can be sure he lied, and lied quite extensively.

It is highly unlikely that Libby volunteered that he met Judith Miller on June 23rd, 2003 and discussed Valerie Plame. In fact, according to Scooter’s wiki-file: “The American Prospect magazine revealed in August 2005 that Libby had testified that he met with Judith Miller on July 8, 2003 and discussed Plame with her at that time.” It’s doubtful that he volunteered that he confirmed Plame was in the CIA for Matt Cooper.

It is hard to calculate how many dishonest answers Libby has provided to hide his early role in discussing Wilson’s wife, but it could easily encompass dozens of statements. Some of them would be in response to questions such as:

When did you first learn that Valerie Wilson worked at the CIA?
When did you first discuss Valerie Wilson with reporters?
At the time you spoke to Rove, Novak, Miller, Pincus etc. did you know that Valerie Wilson worked at WINPAC?
Did you share classified material with Miller?

SHARING CLASSIFIED INFORMATION

From all indications, it appears that Fitzgerald has information/testimony that Libby inappropriately shared classified information with Miller. Some excerpts from Miller’s account of her Grand Jury testimony:

In my grand jury testimony, Mr. Fitzgerald repeatedly turned to the subject of how Mr. Libby handled classified information with me. He asked, for example, whether I had discussed my security status with Mr. Libby…

…Mr. Fitzgerald asked if I had discussed classified information with Mr. Libby. I said I believed so, but could not be sure…

…Mr. Fitzgerald asked me to examine a series of documents. Though I could not identify them with certainty, I said that some seemed familiar, and that they might be excerpts from the National Intelligence Estimate of Iraq’s weapons. Mr. Fitzgerald asked whether Mr. Libby had shown any of the documents to me.

I told Mr. Fitzgerald that Mr. Libby might have thought I still had security clearance, given my special embedded status in Iraq. At the same time, I told the grand jury I thought that at our July 8 meeting I might have expressed frustration to Mr. Libby that I was not permitted to discuss with editors some of the more sensitive information about Iraq.

Miller attempted to shield Libby and to make excuses for him, but the bottom line is that she said ‘I believe so’ when asked whether Libby shared classified information with her. More importantly, Fitzgerald was obviously pursuing information about specific classified information, which means he has testimony from someone that implicates Libby in inappropriate leaking. And it appears to be unrelated to the case of Valerie Plame.

This could lead to charges under the:

FEDERAL ESPIONAGE AND CENSORSHIP LAW

Recently lawyers said that they believed the prosecutor may be applying new legal theories to bring charges in the case. One new approach appears to involve the possible use of Chapter 37 of the federal espionage and censorship law, which makes it a crime for anyone who “willfully communicates, delivers, transfers or causes to be communicated” to someone “not entitled to receive it” classified information relating the national defense matters. Under this broad statute, a government official or a private citizen who passed classified information to anyone else in or outside the government could potentially be charged with a felony, if they transferred the information to someone without a security clearance to receive it.

And then there is the law that started this whole investigation:

INTELLIGENCE IDENTITIES PROTECTION ACT OF 1982

Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the
information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert
agent’s intelligence relationship to the United States, shall be fined not more than $50,000 or imprisoned not more than ten years, or both.

Let’s go down the list as it pertains to Libby:

1. had authorized access to classified information that identifies a covert agent: check
2. intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information: proving intentionality may prove difficult, but as for the rest? check.
3. knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States: proving this may prove difficult, but given all Libby’s trips to visit the CIA and discuss WMD is hardly seems impossible to prove.
4. shall be fined not more than $50,000 or imprisoned not more than ten years, or both: potentially, CHECKMATE.

And then there are the potential conspiracy charges. As the Washington Post reported on October 1st, 2005:

a new theory about Fitzgerald’s aim has emerged in recent weeks from two lawyers who have had extensive conversations with the prosecutor while representing witnesses in the case. They surmise that Fitzgerald is considering whether he can bring charges of a criminal conspiracy perpetrated by a group of senior Bush administration officials. Under this legal tactic, Fitzgerald would attempt to establish that at least two or more officials agreed to take affirmative steps to discredit and retaliate against Wilson and leak sensitive government information about his wife. To prove a criminal conspiracy, the actions need not have been criminal, but conspirators must have had a criminal purpose.

If you ask me, added all up, that is a lot of potential charges and a lot of potential jail-time. And that is why we are hearing more and more rumblings about whether Dick Cheney may be implicated. In other words, how much jail-time is Libby willing to risk in order to protect the Vice-President?