Gadfly is Marty Aussenberg, a columnist for the weekly Memphis Flyer. Marty is a former SEC enforcement official, currently in private law practice in Memphis, Tennessee. (A full bio is below the fold.) Cross-posted at The Memphis Flyer.

Since the momentous announcement of the indictment of Scooter Libby, pundits on the right, and the thundering herd of apologists for the Bush administration, have trumpeted their elation — first that no one (including Libby) was indicted for the crime of outing a covert CIA agent, and second, that Karl Rove wasn’t indicted at all. (See my “Fitz’s Knuckle Ball.”) Their talking point seems to be that the fact the grand jury didn’t charge a criminal violation of one of the classified information statutes must mean (or at least can be spun to mean) that neither Libby, nor any of the other officials implicated in the outing of Plame, did anything wrong (with a capital W) in doing so, even if Libby himself may have done something wrong (with a small w) in lying about it.

David Brooks said it best, during his Sunday appearance on Meet the Press:

[T]he American people have to know that the wave of hysteria, the wave of paranoia, the wave of charges and allegations about Karl Rove and everybody else is unsupported by the facts.

This, of course, is an echo of the standard established by this White House for judging the seriousness of the conduct in this case. Recall that at one point the President and his spokesperson, Scott McClellan, proclaimed repeatedly that anyone “involved” in the leak at issue would be fired from the administration.

This was consistent with a well-known personal bugaboo of Bush’s regarding leaks, not so much (in fact, not at all) because of their effect on the integrity of government, but because of Bush’s obsession with secrecy, an axiom for the way this administration conducts its business.

But as it gradually became obvious that White House officials were, in fact, “involved” in leaking, and more importantly, as the identity of one of those White House officials in particular came into focus, the president quickly recast his standard of tolerance for leakers in his midst by raising the bar for discipline to the commission of a crime.

In other words, it became OK with the President, and wouldn’t disqualify anyone from continued employment by him, if they violated his own well-known prohibition against leaking, compromised national security, or, for that matter, even lied about it to him or to the press, just as long as they didn’t get caught by anyone with the power to slam the jailhouse door on them.

What is misunderstood about the indictment in this case, or indeed, about the criminal law altogether, is that it is entirely possible for an act to be “wrong,” judged by any generally-accepted standard (i.e., moral, ethical, and yes, even legal), and yet not rise to the level of criminality. The leak of Ms. Plame’s identity by Libby and others may have been, and undoubtedly was, wrong, and even arguably illegal, but what facts the prosecutor was able to establish (hindered, in part, by Libby’s treachery) were not sufficient, in his estimation, to establish violations of applicable criminal statutes. Prosecutors are loathe to charge crimes if they think they’re going to have any difficulty proving them. That hurts their batting averages, and Fitzgerald is, at least so far, batting at Hall of Fame levels.

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But for anyone to take any comfort from the absence of a criminal indictment on the charge of outing a covert CIA operative, as though the whole thing had been given the Good Housekeeping seal of approval, is perverse, because the clear image that emerges from the indictment is that what was done in the leaking of Ms. Plame’s identity and employment was wrong, on any imaginable basis, if for no other reason because of the harm it inflicted on her, and on her country.

This is especially significant given the fact that no one else, not Congress (Sam Ervin, where are you now that we need you?), and certainly not the White House, has shown the slightest inclination to conduct a parallel investigation of the incident, broader in scope and less stringent in procedure than the one conducted by the special prosecutor. Thus, the last word on the propriety of what was done by operatives of this administration in this disgraceful episode will hinge on the artificial standard of criminality, and that will be an outrage.

If you read the indictment (and I suspect many more people claim they’ve done so than actually have, based on some of the off-the-wall interpretations of the document we’ve been treated to in the last 48 hours), what comes through very clearly is: first, the identity (and worse, the employment status) of Valerie Plame got disclosed by one or more White House functionaries, and second, the revelation (i.e., leak) violated the classified nature of that information, and, in the process, endangered a CIA agent and compromised national security as well. The indictment makes that point very clearly. So did Fitzgerald at his press conference announcing it (recall his hyper-patriotic, nearly pontifical statements.)

But (admittedly a big but) what the indictment stops short of doing is charging that the revelation of classified information, as damaging as that may have been to national security, violated the arcane, narrowly-defined crimes encompassed by the Intelligence Identities Protection Act of 1982, or by the Espionage Act of 1917.

The difficulty of proving violations of the IIPA has long been touted by the defenders of the White House leak as a reason, not only that a crime was not committed in doing so, but that nothing that was done was wrong either.

Indeed, one of the self-satisfied authors of the IIPA (also, not surprisingly, one of the principal talking-head apologists for the administration in this affair), Victoria Toensing, was quoted in the LA Times as saying, “what is it that somebody did wrong if they didn’t break the law?” I guess ruining a CIA agent’s career, endangering her (and arguably others’) life and compromising this country’s national security at a time of war doesn’t qualify as “wrong,” in Ms. Toensing’s world.

It must be remembered, though, that the standard for criminality imports two very important criteria that don’t exist under any other standard: first, that every one of the elements of what a statute defines as criminal conduct, some of which can be quite esoteric (e.g., to be a “covert agent, under the IIPA, one must have served outside the United States within the last five years) are satisfied, and second (even more importantly), that all of those elements can be proved by a standard that exists only in criminal law—beyond a reasonable doubt. Fitzgerald most definitely was not saying that what was done to Valerie Plame, or to the country’s national security, wasn’t wrong, damaging or even reprehensible; he was just saying he couldn’t prove it was a crime.

Blessedly, there isn’t a criminal statute that applies to every wrong in our society. But when we start using criminality as the go-to criterion for judging the rectitude of human behavior, especially behavior that has seriously deleterious consequences, we have abandoned several important layers of responsibility for that behavior, and in the process, denigrated the quality of life in a civilized society.

Cross-posted at The Memphis Flyer.


Mr. Aussenberg is an attorney practicing in his own firm in Memphis, Tennessee. He began his career in the private practice of law in Memphis after relocating from Washington, D.C., where he spent five years at the Securities and Exchange Commission as a Special Counsel and Trial Attorney in its Enforcement Division, during which time he handled or supervised the investigation and litigation of several significant cases involving insider trading, market manipulation, and management fraud. Prior to his stint at the S.E.C., he was an Assistant Attorney General with the Pennsylvania Department of Banking in Philadelphia and was the Attorney-In-Charge of Litigation for the Pennsylvania Securities Commission, where, in addition to representing that agency in numerous state trial and appellate courts, he successfully prosecuted the first case of criminal securities fraud in the state’s history.

Mr. Aussenberg’s private practice has focused primarily on investment, financial, corporate and business counseling, litigation and arbitration and regulatory proceedings. He has represented individual, institutional and governmental investors, as well as brokerage firms and individual brokers, in securities and commodities-related matters, S.E.C., NASD and state securities regulatory proceedings, and has represented parties in shareholder derivative, class action and multi-district litigation, as well as defending parties in securities, commodities, and other “white-collar” criminal cases.

Mr. Aussenberg received his J.D. degree from the University of Pittsburgh School of Law, and his B.A. degree in Honors Political Science from the University of Pittsburgh. Immediately following law school, he served as a Reginald Heber Smith Community Lawyer Fellow with the Delaware County Legal Assistance Association in Chester, Pennsylvania.

He is admitted to practice in Tennessee, Pennsylvania and the District of Columbia, before the United States Supreme Court, the Third and Sixth Circuit Courts of Appeals, and the United States Tax Court, as well as federal district courts in Tennessee, Arkansas, Mississippi and Louisiana. He is an arbitrator for the NASD, New York Stock Exchange and American Arbitration Association, has published articles (“Stockbroker Fraud: This Kind of Churning Doesn’t Make Butter”, Journal of the Tennessee Society of C.P.A.’s,; Newsletter of the Arkansas Society of C.P.A.’s; Hoosier Banker (Indiana Bankers Association), and been a featured speaker on a variety of topics at seminars in the United States and Canada, including: Municipal Treasurers Association of the United States and Canada, Ottawa, Canada; Government Finance Officers Association; National Institute of Municipal Law Officers, Washington, D.C. ; Tennessee Society of Certified Public Accountants, Memphis, TN; Tennessee Association of Public Accountants, Memphis, TN (1993)

Mr. Aussenberg has two children, a daughter who is a graduate of Columbia University and holds a Masters in Public Health from Johns Hopkins University and is currently a student at the University of Pittsburgh School of Law, and a son who is a graduate of Brown University and is working with a conservation organization in Marin County, California while he decides what to do with the rest of his life.

Mr. Aussenberg is an avid golfer whose only handicap is his game, an occasional trap shooter whose best competitive score was a 92, and an even less frequent jazz drummer.

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