Marty Aussenberg, Author at Progress Pond

No Crime, No Foul

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.

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)
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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.

Fitz’s Knuckle Ball

[editor’s note, by susanhu] See Martin’s Nov. 2 article, “No Crime, No Foul.”

The indictment of “Scooter” Libby, ONLY Scooter Libby, and ONLY on investigation- related charges (perjury, obstruction of justice, lying to investigators), is bound to be misinterpreted (read: spun), by ideologues on both sides of the political spectrum. Lefties (in addition to being disappointed that their favorite bête noire, Karl Rove, has seemingly evaded the prosecutor’s net) will feel like some of the wind has been knocked out of their sails because no crime was charged in connection with the underlying revelation of Valerie Plame’s identity (a key element in their assertion that such revelation was motivated by the need to discredit a vocal critic of administration’s casus belli for the war–Iraq’s possession or acquisition of nuclear weapons capability). And righties will revel in that same fact (i.e., since no crime was committed by the Plame outing, the outing was nothing more than a legitimate defense against the attack on the motivation for the war–in other words, politics as usual).

But, to continue Patrick Fitzgerald’s somewhat tortured baseball analogy, there is no reason either for joy or sorrow in Mudville. Mighty Casey (a/k/a Fitzgerald) has, in essence, taken a base on balls, four (or, in Libby’s case, five) lousy pitches, none of which he could really swing at, much less hit out of the park. And, just like a base on balls does’t count as an at-bat, in some ways Fitz still hasn’t stepped up to the plate. But, I suggest that what he may have done is to cork a bat for his next up.

Yesterday’s indictment was dictated by time more than anything else. With the grand jury’s term expiring today, if any indictment was going to be returned, this was the day, and I, for one, don’t question Fitzgerald’s statement that Libby’s obstruction of the investigation prevented him from getting to the truth about the so-called “underlying” charges (e.g., those associated with outing a CIA operative). Indeed, the obstruction charged against Libby prevented the prosecutor from furnishing the one element of the underlying crimes that may be the most difficult to prove: mens rea, as it’s known in the criminal law (i.e., a culpable state of mind). But, be assured: the last out in this game is still to come, and the indictment is a shot across the bow for a whole host of characters in this unfolding drama that should indicate to them sighs of relief would be premature.

First, we know that Fitz intends to continue the investigation, albeit with a new grand jury. That’s no big deal, since the evidence that was presented to the first grand jury will be available, word-for-word and page-for-page, to the next one for their examination and, if necessary, for further elaboration or elucidation either by the prosecutor or by additional witnesses. In other words, the new grand jury won’t be starting from scratch—not by a long shot.

Second, even the fact that Libby wasn’t indicted for any of the possible classified-information-related offenses does’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.

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[editor’s note, by susanhu] See Martin’s Nov. 2 article, “No Crime, No Foul.”

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Under the applicable federal rule, indictments are only required to be a “plain, concise, and definite written statement of the essential facts constituting the offense charged.” The rule goes further to say indictments “need not contain a formal introduction or conclusion.”

The Libby indictment goes considerably beyond what the rule requires, or even envisions. It is what’s called, in courthouse vernacular, a “speaking indictment.” The purpose of a “speaking” filing, in any court proceeding, is to show the other side some of the stronger cards you’re holding in your hand, and this indictment is no exception.

The first 25 paragraphs of the indictment take great pains to lay out a factual scenario, replete with the identity (if not by name then by title) of the entire cast of characters, which, when carefully parsed, seems to set out the elements of at least one of the underlying classified information crimes, if not both. For example, the indictment indicates that the White House was well aware than Valerie Plame was a covert operative. Paragraph 9 states:

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.

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. The indictment also makes it clear that Plame’s status at the CIA was classified, and that disclosure of such status could jeopardize national security.

Paragraph 13 of the indictment takes the guilty knowledge of Plame’s status one step farther:

Libby spoke by telephone with his then Principal Deputy and discussed the article. That official asked Libby whether information about Wilson’s trip could be shared with the press to rebut the allegations that the Vice President had sent Wilson. Libby responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line.

The indictment makes it clear that Libby was authorized to have access to classified information (Paragraph 1), but also takes pains to point out not only that he was obligated not to disclose that information, but that he had signed a “Classified Information Nondisclosure Agreement” the primary purpose of which was to let its signatories know, in no uncertain terms, that disclosure of classified information would be a big no-no.

Voila! All of the elements, at least of the Espionage Act (if not the Intelligence Identities Protection Act), have been made out in the indictment. So, why go to all the trouble of setting up the factual predicates for violations of the classified information statutes in the indictment (especially when he didn’t have to) and then stop short of charging them? The explanation he gave during his press conference (i.e., that he was balancing the interests of the First Amendment with the wisdom of charging the crime) does’t fly. Subpoenaing reporters, sending one to jail and threatening to do the same to another one demonstrate, I suggest, his less-than-overarching concern about the First Amendment. And, his expressed concern that the U.S. statute governing classified information not become subject to the loose application which has characterized its British analog (i.e., the “Official Secrets Act”) also rings hollow, especially given the fact that he trumpeted, loud and long, during his press conference the serious violations of national security the conduct in this case appears to have constituted.

No, the real reason to lay out as much factual detail as he did was for Fitz to show the world (and in particular, the world within the White House) that he has the goods, and that he won’t hesitate to drop the dime on some additional malefactors, particularly, Cheney. Let’s face it: Libby is only the consigliere to Cheney’s don. Even though the threat of spending 30 years in the pokey will be a powerful incentive for Libby to cut some kind of deal that might include turning on his boss, the possibility of the additional charges of revealing classified information, particularly against Cheney, is even more powerful since, presumably, Cheney does’t appear to be at risk of a truth-telling-related indictment.

Let’s agree on something else right now: Libby’s case will never get to trial, primarily because Bush and Cheney will never allow such a trial to become precisely the kind of exposé of the administration’s motives and actions in the run-up to the war they were worried the indictments would constitute. It would be their worst nightmare to have their war machinations presented to a jury of 12 ordinary citizens in the District of Columbia (read: predominantly African Americans) who would be sitting as proxies for the families of 2,000 plus military fatalities in Iraq and the plurality of the country that opposes the war. The risk there is not just exposure to the possibility of conviction in Washington, D.C., but a subsequent prosecution in The Hague as well.

Yes, my friends, Fitz is about to grab the pine tar rag, choose another, very special, piece of lumber and step back into the on-deck circle for the home run that is sure to follow. Batter up!

BIOGRAPHY:

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.