Exonerating Libby of underlying crime, Post's Cohen confused about elements

In a June 20 washingtonpost.com discussion about Post columnist Richard Cohen's recent column arguing that former vice presidential chief of staff I. Lewis "Scooter" Libby was merely "practicing of the dark art of politics" when he leaked the identity of former CIA operative Valerie Plame, Cohen asserted that Libby "didn't commit the original crime" because he wasn't columnist Robert D. Novak's source for Plame's CIA identity. The investigation, Cohen wrote, should never have been pursued, and Libby should never have been charged with the crimes of which he was ultimately convicted: perjury, making false statements, and obstruction of justice.

The "genesis of the investigation had to do with the naming of Valerie Plame in Robert Novak's [July 14, 2003] column," Cohen wrote, "[b]ut that didn't come from Scooter Libby." But Libby did leak Plame's identity to then-New York Times reporter Judith Miller and then-Time reporter Matthew Cooper, and the statutes whose potential violation special counsel Patrick Fitzgerald set out to investigate, in particular the 1982 Intelligence Identities Protection Act (IIPA), do not specify that the identity of a covert operative has to be published for a crime to have been committed -- only that the information be intentionally disclosed to someone not authorized to know it. While Libby was not the source for the initial published report on Plame's identity, it was not because he didn't leak the information to someone not authorized to have it, but because the people to whom he leaked did not publish the first story containing the information.

As Media Matters for America has noted, during an October 2005 press conference announcing Libby's indictment, Fitzgerald said that it was Libby's obstruction that prevented the special counsel's office from determining if an underlying crime had been committed, although after Libby's conviction, Fitzgerald, in his May 29 sentencing memorandum, stated that the investigation turned up substantial evidence indicating that the leak itself may have constituted a crime.

As Media Matters for America has documented, journalist Murray Waas noted in his book The United States v. I. Lewis Libby (Union Square Press, June 2007) that Miller testified at Libby's trial that he had disclosed Plame's CIA employment to her at a July 8, 2003, meeting -- before Novak publicly revealed it in his July 14, 2003, column. But while she never wrote about Plame, Miller testified that she had suggested to her editor, Jill Abramson, that the Times look into Plame's employment at the CIA:

Q: You never wrote anything [at] anytime about Wilson's wife, did you?

A: No, I did not.

Q: Did you ever recommend doing so?

A: Yes, I did.

Q: Who did you make that recommendation to?

A: To the Washington Bureau Chief ... Jill Abramson at that time ...

Q: What is your recollection exactly of your conversation with Jill Abramson?

A: I remember that it was a very short time after my second meeting with Mr. Libby [on July 8], and I was about to go back to my home in New York ... I was in the Washington Bureau, and I went into her office and I closed the door. And I outlined some of the highlights of what I thought we knew so far about the hunt for weapons of mass destruction and the intelligence. Then I said that there was something I thought we ou[gh]t to follow up on, a tip.

Q: What did you say to her?

A: I said I think that you should have someone pursue this, whether or not [former Ambassador] Joe Wilson's wife works at the [Central Intelligence] Agency and, if so, what she does.

[...]

Q: What was her response?

A: She didn't have a response. She just said "uh-huh." Then we went on to talk about other things.

Waas provides some context for this discussion on Page 196 of his book:

Following her breakfast meeting with Libby, Miller claims she recommended to a New York Times editor that the paper pursue a story on the Wilsons. The story suggestion, if made at all, would not likely have been taken up anyway, because Miller -- unbeknownst to Libby -- had been restricted in her reporting by the Times as a result of her problematic earlier reporting on Iraqi [weapons of mass destruction]. Despite Libby's determined cultivation of Miller, she never wrote a story for The New York Times about Joe Wilson and Valerie Plame.

Indeed, to violate the IIPA, Libby did not have to ensure publication of the information about Plame's CIA employment. The act bans "intentionally disclos[ing] 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." From the IIPA, 50 U.S.C. 421:

(a) Disclosure of information by persons having or having had access to classified information that identifies covert agent

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 under title 18 or imprisoned not more than ten years, or both.

(b) Disclosure of information by persons who learn identity of covert agents as result of having access to classified information

Whoever, as a result of having authorized access to classified information, learns the identify of a covert agent and 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 under title 18 or imprisoned not more than five years, or both.

In addition, Cohen responded to a question about whether Libby was protecting others' "bad acts" by asserting that it "turns out not to be a crime" if Libby and Vice President Dick Cheney had "set out to destroy the credibility of Joe Wilson ... knowing that his wife was a covert CIA agent." It is not clear on what basis Cohen claimed that "it turns out not to be a crime" for Cheney and Libby to have disclosed Plame's identity, even knowing that she was covert, for the purposes of attacking Wilson's credibility. Neither the elements of the crime as set out in the IIPA nor the exceptions include an exemption for disclosing the identity of a covert operative if done for the purposes of discrediting her or someone related to her.

Cohen later asserted that Plame was not "covert," and that Plame "had to be stationed overseas in a covert position" for the IIPA to protect her. However, as Media Matters has noted, in his May 29 sentencing memorandum, Fitzgerald wrote that "[a]t the time of the leaks, Ms. Wilson in fact qualified as a 'covert agent' within the meaning of the IIPA." To support this claim, Fitzgerald included an "unclassified summary" of Plame's employment at the CIA -- which had been given to the defense in June 2006 -- which established that she had headed a counterproliferation operation focused on Iraq and had traveled overseas in an undercover capacity in the five years prior to the disclosure of her identity. The "unclassified summary" states that the CIA "declassified and now publicly acknowledges the previously classified fact that Ms. Wilson was a CIA employee from 1 January 2002 forward and the previously classified fact that she was a covert CIA employee during this period."

From Cohen's June 20 discussion on washingtonpost.com:

Alexandria, Va.: Dear Sir: As I see it, the investigation was started by the CIA (hardly a hotbed of Michael Moore liberalism) who asked the Department of Justice to look into the leak. Ashcroft (not exactly a Naderite) recused himself and put Fitzgerald (a Republican-appointed DA) in charge of the investigation. Libby was caught lying to a grand jury and found guilty after having the finest lawyers in the country (paid for by a Republican cadre of well-wishers) and was given a tough sentence by a Republican-appointed judge. In short, not a Democrat was involved in this -- and yet you have the temerity to suggest it was political. I just do not get it. Can you please explain? Your articles do not, so please don't ask me to go back and read them.

Richard Cohen: Well, if you'll excuse my temerity, the genesis of the investigation had to do with the naming of Valerie Plame in Robert Novak's column. But that didn't come from Scooter Libby, and the pressure for the appointment of a special counsel came from a whole lot of liberals who didn't trust the administration to investigate itself. The thinking was that this was an attempt by a pro-war member of the administration to tarnish a war critic who argued against the war in the New York Times. He was convicted of lying to a grand jury, and I don't excuse that, and I don't excuse the war either, but the fact is that he didn't commit the original crime. It's a hefty sentence, the end of a career, and there's no underlying crime -- as there wasn't with Bill Clinton. I don't like prosecutors going after someone who didn't commit the original crime. They have too much power, they can go after almost anybody.

[...]

Tempe, Ariz.: Mr. Cohen, I thought the column was interesting, given the idea that Libby is held responsible for a failed Iraq policy. Like the Abu Ghraib case, this seems to be a lot about punishing people that are guilty of something terrible but are punished to cover sins by higher-ranking people. Libby is beyond the point of making a deal, but could part of the move to pardon him be motivated to protect some other bad acts?

Richard Cohen: I don't know how to answer that question because I don't know what the bad acts might be. If it's simply a question of "did Vice President Cheney set out to destroy the credibility of Joe Wilson" that may be a bad act, but it's not a crime. Did they proceed knowing that his wife was a covert CIA agent? Maybe, but that turns out not to be a crime either. This whole thing happens in Washington all the time, which makes it hard for me to believe Libby's covering up for anyone.

I was reminded about this when reading about Watergate recently, about how the judge of [sic] in the Watergate break-in case smelled a cover-up and gave the burglars stiff sentences in order to encourage them to talk. That didn't happen here. The judge didn't say he was giving Libby a stiff sentence to encourage him to turn something else in -- he just said he did this because he lied to the grand jury. So there's not a cover-up involved.

[...]

San Jose, CA: The spin seems to be that because [former deputy Secretary of State Richard] Armitage may have been the initial leaker and he didn't violate the IIPA, no one who subsequently disclosed Plame's name or status could have committed a crime. I don't think that is a correct interpretation of the statute. Is it?

Richard Cohen: My understanding of it is that a covert agent -- in order for you to commit a crime by exposing a CIA agent, they had to be stationed overseas in a covert position, and then there is a time limit on it. My understanding further is that this law only has been invoked once, when a secretary at an African embassy told her boyfriend there was a CIA agent there. I really don't think that anybody thought Valerie Plame fit that because, she wasn't overseas -- no one thought they were risking her life, she was working in McLean, Va.

You have to ask yourself, what was Joe Wilson thinking? Did he really think he could write a column in the New York Times without risking blowing the cover of his wife? I find that hard to believe.

The important thing here is that, just to give you an example of this being routine Washington stuff, is that Woodward was told this by Armitage and did nothing with it. He didn't see it as news. Novak used it in a column but it was a while before anyone viewed this as being important. Matt Cooper, Judith Miller, [Washington Post reporter] Walter Pincus, a lot of people had this information, and it wasn't a page one story. No one thought it was the outing of a covert CIA agent -- and in fact she wasn't covert -- it was just a leak.