How to Prosecute the Plame Case

[G_j]

http://www.commondreams.org/views05/0812-22.htm

Published on Friday, August 12, 2005 by TomDispatch.com

How to Prosecute the Plame Case

by Elizabeth de la Vega

Pundits right, left, and center have reached a rare unanimous verdict about one aspect of the grand jury investigation into the Valerie Plame leak: They've decided that no charges can be brought under the Intelligence Identities Protection Act of 1982, because it imposes an impossibly high standard for proof of intent. Typically, writing for Slate on July 19th, Christopher Hitchens described the 1982 Act as a "silly law" that requires that "you knowingly wish to expose the cover of a CIA officer who you understand may be harmed as a result." Similarly, columnist Richard Cohen, in the July 14 Washington Post, said he thought Rove was a "political opportunist, not a traitor" and that he didn't think Rove "specifically intended to blow the cover of a CIA agent." Such examples could be multiplied many times over.

Shocking as it may seem, however, the pundits are wrong; and their casual summaries of the requirements of the 1982 statute betray a fundamental misunderstanding regarding proof of criminal intent.

Do you have to intend to harm a CIA agent or jeopardize national security in order to violate the Intelligence Identities Protection Act? The answer is no.

Before presenting any case, a prosecutor like Special Counsel Patrick Fitzgerald in the Plame case has to figure out "the elements of the crime"; in other words, the factors he has to prove under whatever statute he is considering. If a grand jury finds probable cause to believe that each element has been proved, it may then return an indictment. At trial, the judge instructs the jury about these same elements. Parties can argue about whether the elements have been proved beyond a reasonable doubt, but neither side can add, delete, or modify the elements even slightly to suit their arguments.
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[G_j]

1. kick

[Doo_Revolution]

2. Very important.....

And Miller wonders why we despise her. Aiding enemies, spies and otherwise is criminal.

[H2O Man]

3. Good article.

There is one area that I would expand upon. There are two different types of grand juries. Usually the prosecutor has determined what the crime is, then presents the evidence needed to get an indictment against the person he targets from day one.

There is a second type of grand jury, and that is what this is. Fitzgerald needed to start by presenting that a crime appears to have taken place. In this case, the first witness was from CI, and was able to show the grand jury that Plame was a covert agent, and that her status was highly classified, and that it then appeared in a newspaper article, attributed to "two senior White House officials."

The grand jury then becomes the investigatory unit. Fitzgerald is "leading" it, but the grand jury is very active in the investigation. There are not the same limitations one associates with a regular grand jury.

At the beginning, Fitzgerald left his options for determining what crimes may have been commited open. Thus, for example, the espionage act is as much an option as the violation of the identies' act. This grand jury is not restricted.

Many of the rational concerns about the fellow who replaces Comey in his role with Fitzgerald involve the possibility he would try to put in place restrictions on where the grand jury could go. This is far more likely to be an issue than his simply "firing" Fitzgerald. It is where there administration can say, "national security!" to try to reduce the threat of having their crimes exposed -- and this should sound very familiar to old folks who remember Watergate.

[G_j]

4. thanks

for adding some clarity. We can only hope justice will prevail somehow.

[GreenPartyVoter]

5. Yep. Cindy is weakening the BFEE.. this stuff is gonna hit REALLY

hard when the indictments come down.