FITZGERALD'S MISDIRECTION

There is something that is confusing me about the issue surrounding the Plame Leak investigation.

“Scooter” Libby has been indicted for lying about what he knew and when he knew it.

Yet the prosecutor, Mr. Fitzgerald has not answered the central question: was a crime committed by saying to a reporter that Valerie Plame – Joe Wilson’s husband – worked for the CIA and was instrumental in having him sent to Niger?

Fitzgerald claims to be prosecuting Libby, in part, because Libby lied about who told him and when he found out about the Plame/Wilson connection. He claims that those lies inhibited his investigation.

But since he now knows the truth about who told what to whom, and who knew, and what the law is regarding disclosure of this information to the public, why is there no indictment on the fundamental case?

When did Fitzgerald find out that Libby lied about what he knew and when? Who actually outed Plame? Is outing Plame a crime?

After two years of investigations, millions of dollars spent, and an indictment that does not address the primary issues, I am coming to the conclusion that for all the great press Fitzgerald has gotten; as an investigator he is either incompetent or he decided that after all this effort he had to indict somebody so he served up the Libby indictment.

UPDATE: For the Libby Indictment click HERE.
For Fitzgerald's statement click HERE.

Bottom line, according to the Special Counsel, Libby lied to the FBI and in his Grand Jury testimony about what he knew and what he told reporters. A number of the counts are based on the word of Libby vs. the reporters.

The underlying question not addressed in the indictment, because he has not been charged with this crime, is whether what Libby did was criminal. There is an inference that Libby committed a crime before he alledgedly perjured himself, but there is no indictment for anything but his testimony.

Why not? In my opinion, the Special Counsel accepted the job of determining if a crime has been committed (past tense), not whether he can get a witness to commit a crime after he begins his investigation.

Failure to do so ...to resolve this issue, is a dereliction of his duty to the American people.

UPDATE 2: The Wall Street Journal chimes in:
Mr. Fitzgerald would not comment yesterday on whether he had evidence for the perjury, obstruction of justice and false statement counts beyond the testimonies of Mr. Libby and three journalists. Instead, he noted that a criminal investigation into a "national security matter" of this sort hinged on "very fine distinctions," and that any attempt to obscure exactly who told what to whom and when was a serious matter.

Let us stipulate that impeding a criminal investigation is indeed a serious matter; no one should feel he can lie to a grand jury or to federal investigators. But there is a question to be asked about the end to which the accused allegedly lied. The indictment itself contains no motive. And Mr. Libby is not alleged to have been the source for Robert Novak's July 14, 2003 column, in which Valerie Plame's employment with the CIA was revealed.

Rather, according to the indictment, Mr. Libby did a little digging, found out who Joe Wilson's wife was, and apparently told Judith Miller of the New York Times, who never wrote it up, and Matthew Cooper of Time magazine, who put it into print after Mr. Novak's column had run. What's more, he allegedly did not talk to Tim Russert of NBC about it, although he claimed that he had. Mr. Libby then didn't tell a grand jury and the FBI the truth about what he told those reporters, the indictment claims.
If this is a conspiracy to silence administration critics, it was more daft than deft. The indictment itself contains no evidence of a conspiracy, and Mr. Libby has not been accused of trying to cover up some high crime or misdemeanor by the Bush administration. The indictment amounts to an allegation that one official lied about what he knew about an underlying "crime" that wasn't committed. And we still don't know who did tell Mr. Novak -- presumably, it was the soon-to-be-infamous "Official A" from paragraph 21 of the indictment, although we don't know whether Official A was Mr. Novak's primary source or merely a corroborating one.

To the extent that the facts alleged in the indictment can be relied upon, the story goes something like this. Sometime in May 2003, or slightly before, Nicholas Kristof, a columnist for the New York Times, was informed of Joe Wilson's 2002 trip to Niger to investigate claims that Saddam Hussein had attempted to buy yellowcake there. Mr. Kristof wrote a column, and Mr. Libby began to ask around, to determine why a Democratic partisan had been sent on such a sensitive mission in the run-up to the Iraq war. He allegedly learned in the course of his inquiries that Mr. Wilson's wife worked for the CIA.

Mr. Fitzgerald alleges that Mr. Libby informed Judith Miller of the New York Times about Mr. Wilson's wife in June, but she never wrote it up. In the meantime, Mr. Wilson went public with his own account of his mission and its outcome, without reference to his wife's employment or possible involvement in his trip.

Mr. Libby also spoke to Mr. Cooper of Time about it, who did write it up, but only after Mr. Novak's column had run. In this same time period, he had a conversation with Mr. Russert, which may or may not have covered Mr. Wilson and his wife, depending on whom you believe.

So, we are left with this. Did Mr. Libby offer the truth about Mr. Wilson to Mr. Cooper "without qualifications," as Mr. Fitzgerald alleges, or did he merely confirm what Mr. Cooper had heard elsewhere? Did he, or did he not, discuss Mr. Wilson with Tim Russert at all?

On this much we can agree with Mr. Fitzgerald: These are "very fine distinctions" indeed, especially as they pertain to discussions that occurred two years ago, and whose importance only became clear well after the fact, when investigators came knocking. In a statement yesterday, Mr. Libby's counsel zeroed in on this point when he said "We are quite distressed the Special Counsel has now sought to pursue alleged inconsistencies in Mr. Libby's recollection and those of others' and to charge such inconsistencies as false statements." He added that they "will defend vigorously against these charges."

On the answers to these questions hang a possible 30-year jail term and $1.25 million in fines for a Bush administration official who was merely attempting to expose the truth about Mr. Wilson, a critic of the administration who was lying to the press about the nature of his involvement in the Niger mission and about the nature of the intelligence that it produced. In other words, Mr. Libby was defending administration policy against political attack, not committing a crime.

Mr. Fitzgerald has been dogged in pursuing his investigation, and he gave every appearance of being a reasonable and tough prosecutor in laying out the charges yesterday. But he has thrust himself into what was, at bottom, a policy dispute between an elected administration and critics of the president's approach to the war on terror, who included parts of the permanent bureaucracy of the State Department and CIA. Unless Mr. Fitzgerald can prove beyond a reasonable doubt that Mr. Libby was lying, and doing so for some nefarious purpose, this indictment looks like a case of criminalizing politics.