It now seems beyond question that, at the very least, Karl Rove will be indicted for perjury, false statements and/or obstruction of justice in what’s come to be known as “Plamegate” (the outing of a CIA agent to extract revenge against her husband, Ambassador Wilson, for challenging the President’s assertion that Saddam was buying nuclear materials from Africa). The corporate media and the blogosphere is abuzz, speculating on the timing of Rove’s indictment, and laying the foundation for such an indictment.

I have been on record for some time as being convinced that the real crime involved in Plamegate isn’t lying about it (though that, of course, is a crime), but the revelation of Valerie Plame’s identity itself. For several months the pundits have been pooh-poohing the entire investigation, suggesting that since no crime was committed by outing Plame’s identity, no foul was committed either, and that it’s a feeble fallback on Patrick Fitzgerald’s part to go after people for lying about something that wasn’t a crime in the first place.

We now know, however, thanks to the reporting of David Shuster on MSNBC, not only that Plame was a covert operative, but that she was working on issues involving Iran’s nuclear weapons program. , a fact to which even the somnolent Congress has awakened, with Senator Frank Lautenberg requesting a damage assessment from the CIA regarding the effect of the Plame outing on our Iran-related intelligence efforts. Fitzgerald, you may recall, was particularly outspoken at the press conference where he announced the Libby indictment about the damage to national security inflicted by the leak. He said:

The fact that she was a CIA officer was not well- known, for her protection or for the benefit of all us. It’s important that a CIA officer’s identity be protected, that it be protected not just for the officer, but for the nation’s security.

The Libby indictment (.pdf) makes it clear that Cheney told Libby about Plame’s status at the CIA. Paragraph 9 of the indictment says:

Libby was advised by the Vice President of the United States that Wilson’s wife worked at the Central Intelligence Agency in the Counterproliferation Division. Libby understood that the Vice President had learned this information from the CIA.

And, as I said in one of my earlier stories:

Anyone with knowledge of the CIA’s organizational chart (but particularly Cheney and Libby) knows that the Counterproliferation Division is part of the CIA’s Directorate of Operations (i.e., where the spooks are), and not where the more benign employees (e.g., analysts) are assigned.

That view was confirmed by a former CIA operative during the course of the David Shuster report on Plame’s Iran-related duties.

We also know that the original outing of Plame’s identity, at the hands of Robert Novak, followed his (Novak’s) conversation with a CIA official who warned him not to reveal Plame’s identity. We also know that Novak was warned not to reveal Plame’s identity by another CIA operative, who told him (Novak) that Plame was a specialist in weapons of mass destruction at the CIA. And, we know from the Libby indictment (Paragraph 11) that he discussed Plame directly with a “CIA briefer.”

Given the fact that Cheney learned of Plame’s identity (and role) from the CIA, and that both of them were well aware of the sensitive nature of Plame’s role at the CIA, is there really any doubt that either or both of them knew she was covered by the Intelligence Identities Protection Act? When you work at the CIA, you’re either an undercover agent, or you’re not, and anyone who knows anything about that entity’s organization structure knows that the division Plame worked in was an undercover operation. If that isn’t enough, there is no doubt that every contact between Libby, Cheney and the CIA (and between Novak and the CIA) about Plame included a warning, explicit or implicit, that Plame was a covert agent. So, Cheney and Libby either knew Plame was undercover, or they should have (i.e., they are chargeable with that knowledge). There is no “oops, I didn’t know she was undercover” defense available here.

I remain convinced that Fitzgerald, who has, by now, spoken with whomever it was at the CIA that told Cheney about Plame (and her role), has got the goods on Cheney, and on Libby, with regard to the underlying crime. It still remains open to him, and to the grand jury, to seek a superceding indictment of Libby, and to indict Cheney, who, unlike the President, does’t enjoy immunity from criminal prosecution. I think the reason he hasn’t indicted Cheney, or superceded the original Libby indictment is because he’s using the Libby indictment as a crow bar to get additional damaging information, and because he’s using that indictment to get Libby to turn on Cheney and others (which he—Libby—already has started doing in some of the filings his legal team has made in the document-discovery-related controversies in the case, most notably the one where he reveals that the President, through Cheney, authorized him to reveal classified intelligence to debunk Ambassador Wilson’s attack).

You may recall Fitzgerald’s explanation for why he couldn’t indict anyone for the underlying crime when he announced the Libby indictment:

And what we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He’s trying to figure what happened and somebody blocked their view.

I think the umpire has finally cleared the sand from his eyes, and is about to call the pitch as he now clearly sees it, and at least two batters are about to be called out on strikes.

Update [2006-5-6 6:30:44 by BooMan]:Update: In a report on MSNBC’s “Hardball” Friday evening (aired after my original post), reporter David Shuster commented on courtroom proceedings in the Libby case today (described, procedurally, at firedoglake), saying it was revealed by defense attorneys that Libby may have been warned by the CIA not to reveal the identity of Valerie Plame (as, noted in my earlier piece, were other recipients of the Plame information from the CIA), and that, while the warning came after one of his first conversations with Judith Miller of the New York Times, it also came before one of Libby’s later conversations with Miller, and before his conversation with Matt Cooper of Time Magazine.

Shuster notes (a full transcript won’t be available until Monday):

“It could also signal how close prosecutors may have been to charging Scooter Libby with the actual leak if, in fact, they had this evidence that Libby knew she [Plame] was classified and then went ahead and told reporters about it anyway. That brings the case much closer to a decision from prosecutors about, well, maybe we should indict Scooter Libby for the actual leak as opposed to the perjury and obstruction of justice.” (emphasis mine)

Thanks for that, David. I couldn’t have said it better myself. It also highlights the likelihood that Cheney (Libby’s first source for the Plame information) was also warned by his CIA source not to disclose Plame’s status as an agent. Judging from Shuster’s report, I think he was focusing on the considerations, as a historical matter, that went into the original Libby indictment, and not on the possibility that Libby might still be indicted for the underlying disclosure.

Neither Shuster (nor any other commentators I’ve seen) has focused on this possibility, but as I noted when the Libby indictment was announced:

[T]he fact that Libby wasn’t indicted for any of the possible classified-information-related offenses doesn’t mean he still can’t be, since the special prosecutor has the prerogative of getting a superseding indictment from the grand jury which is to follow (not unlike what the prosecutor in Texas did in Tom Delay’s case). Thus, Libby is still, technically under the gun, and the indictment itself is rife with indications that there is another shoe yet to drop, something Fitz also strongly foreshadowed in his responses to reporters’ questions during his press conference. And, of course, neither Rove nor any of a variety of other characters whose participation was described in shadowy terms are, as yet, off the hook.

BIOGRAPHY:

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.

[cross-posted at Memphis Flyer]

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