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Broder Defends Judge Walton:

In today's Washington Post, columnist David Broder defends Judge Walton's decision to sentence Scooter Libby to 30-months in prison.

I think [conservatives] have a point. This whole controversy is a sideshow -- engineered partly by the publicity-seeking former ambassador Joseph Wilson and his wife and heightened by the hunger in parts of Washington to "get" Rove for something or other.

Like other special prosecutors before him, Fitzgerald got caught up in the excitement of the case and pursued Libby relentlessly, well beyond the time that was reasonable.

Nonetheless, on the fundamental point, Walton and Fitzgerald have it right. Libby let his loyalty to his boss and to the administration cloud his judgment -- and perhaps his memory -- in denying that he was part of the effort to discredit the Wilson pair. Lying to a grand jury is serious business, especially when it is done by a person occupying a high government position where the public trust is at stake.

byomtov (mail):
How exactly did Wilson and Plame "engineer" the controversy? Did they force the Administration to tell reporters about Plame?

This is just typical CYA by Broder. He's saying Fitzgerald was right, so he has to throw a bone to the other side.
6.10.2007 11:13am
Bruce Hayden (mail) (www):
Well, I for one am not happy with the sentence. My understanding is that it was enhanced due to the investigation of the alleged IIPA violations, despite the fact that by the time the SP caught Libby doing whatever, he had known for quite awhile both that there had not been an IIPA violation and that Libby was not the leaker. Also, the alleged IIPA violation was specifically off-limits during the trial itself. That later I think is the thing that bothers me the most, the enhancement based on evidence that was never before the court.

I am also troubled by the fact that Libby's sentence was substantially higher than Sandy Berger, despite the latter having intentionally smuggled classified documents out of the archives and then destroying them.
6.10.2007 11:25am
Bruce Hayden (mail) (www):
How exactly did Wilson and Plame "engineer" the controversy? Did they force the Administration to tell reporters about Plame?
Armitage, the primary leaker, can only be considered a part of the Administration if the term is stretched to cover all appointed officials. He was apparently not in favor of the incursion into Iraq, etc.

Wilson claimed that the Administration was out to get him because of his NYT article. And, at first, that had some ring of plausibility. But, in the end, it turned out that his wife's role in getting him his trip to Niger was disclosed by the State Dept. in a turf war with the CIA. Wilson and Plame were merely pawns there. In other words, it wasn't that Wilson had said that the OVP had sent him, but rather that the State Dept. was involved, that got his wife outed.
6.10.2007 11:32am
byomtov (mail):
Bruce,

I don't think you answered my question.

And talk about stretches - the Deputy Secretary of State is not a part of the Administration???
6.10.2007 11:41am
Anonymous Jim (mail):


Libby was not the leaker


Libby was not a source for Novak, but the Libby indictment alleges that Libby leaked information about Wilson's wife twice (to Miller) before Novak's column ran. Libby just leaked to a journalist who wouldn't publish the information. Probably frustrated him at the time.


I am also troubled by the fact that Libby's sentence was substantially higher than Sandy Berger.


There is no way for me to know for sure but it is completely plausible that these disparate sentences could be be explained by the fact that Berger entered into a plea agreement and Libby still denies his guilt.
6.10.2007 11:54am
JosephSlater (mail):
I'm mildly surprised nobody on this blog has mentioned this pointed footnote in one of Judge Walton's orders (granting leave to file an amicus brief on behalf of Libby).

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant.
The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.
6.10.2007 12:02pm
lostingermany (mail):
Anonymous Jim wrote

"There is no way for me to know for sure but it is completely plausible that these disparate sentences could be be explained by the fact that Berger entered into a plea agreement and Libby still denies his guilt."

There is a great difference between the actions. Berger was probably doing a cyoa action and the documents went no further than his pants. In the Plame case, when her cover was blown, so was the cover of the front corporation she worked in, all the other employees of that front corporation, and ever single person who came into contact with her, the corporation, or any other employees of the corporation. The development and maintenance of such cover is long, hard, and expensive, and it is impossible to estimate the cost of the loss of such cover. Consider only the situation of informants on weapons proliferation in any of the "axis of evil" countries, or in the former Soviet Union. It is not implausible that someone has "disappeared", or worse, due to this leak.
6.10.2007 12:19pm
davod (mail):
Joe: WTF?

Broder is just like a lot of people here. He is now guilty so the juddge is right to give him what he did based on his guilt.

It is my understanding that Libbey was questioned before the grand jury for 10 hours about something which happened some time ago. He was not allowed to refer to any appointment books or diaries.

During the trial, the very people who were brought in to rebut what Libbey said gave evidence inconsistent with their grand jury testimony.

The judge bans all reference to the IIPA during the trail denying the defence the opportunity to comment yet the prosecuter brings in the information during his closing and as part of the sentencing phase.

And they found Libbey guilty?

The good thing about Libbey's expensive lawyers is that at least the tricks, and that is what they are, of the prosecution have been revealed.

Tricks that go on in every court every day. My hope is that this trial will result in changes for the way all federal trials are conducted.
6.10.2007 12:35pm
EricRasmusen (mail) (www):
Thank you, Mr. Slater, for posting that footnote from Judge Walton. The amicus brief is morally justified, however, in two ways. 1. We usually do not hear about miscarriages of justice for the poor, and we might well submit amicus briefs for them if we did. 2. A poor and obscure person would never have been charged with perjury in a case like this and pursued with the unlimited resources of a special prosecutor.

Also, this case may be an important precedent. WOuld it not be true, following this, that if a prosecutor doesn't like someone, he can call them in front of a grand jury even if there is no crime that has been committed, catch them in a lie, and prosecute them for perjury? For example, he could say that he was investigating whether my neighbor was burglarized, have me testify as to my whereabouts at the time, and if I was embarassed to say I had been seeing my mistress and lied, he could go after me.
6.10.2007 12:40pm
rlb:
I still can't understand how a CIA employee's husband managed to get a sensitive CIA assignment without any obligation to keep his mouth shut afterwards. What did they expect would happen when he started defaming the administration in the national media?

I can't help but feel that Libby and Armitage would be courageous whistle-blowers, if only Bush had been a Democrat.
6.10.2007 12:53pm
frankcross (mail):
I don't think those distinctions work. (1) suggests that lawprofs let the media set their agenda, which is neither wise nor necessary. It would not be hard for lawprofs in many towns to uncover miscarriages for the poor, and the weakness of criminal defense is certainly covered. (2) looks at the numerator but not the denominator. The relative ratio of resources for a poor person vs. the gov't is probably worse than that for Libby.

But the footnote was snarky and illegitimate. Lawprofs have a right to their own concerns and causes and may reasonably prefer a higher profile case to a lower one. We're not saintly and we don't universally have to have our every action dictated by a judge's sense of what's morally best for society. And criminal defense is a fairly high priority for law school clinics and some professors
6.10.2007 12:56pm
MnZ (mail):

How exactly did Wilson and Plame "engineer" the controversy? Did they force the Administration to tell reporters about Plame?


Bymotov,

In his NYT article, Wilson obviously wanted to engineer a controversy. Wilson was more or less betting that no one would call him on his misrepresentation about the genesis of his mission or his misrepresentation on the conclusiveness of the evidence that he found.

Now, he certainly did not force the administration to out Plame. However, to deny that Wilson was trying to engineer a controversy is absurd.

P.S. One of the biggest scandals in this entire episode is the incompetence of the CIA. What sort of intelligence agency sends the husband of an undercover agent on a mission to Africa and then allows him to write an article in the NYT about it?
6.10.2007 12:57pm
byomtov (mail):
In his NYT article, Wilson obviously wanted to engineer a controversy.

Whatever the reason for Wilson's article, he obviously did not intend to provoke a controversy about Plame's outing, since the article preceded the outing.

What did they expect would happen when he started defaming the administration in the national media?

Well, I suppose they expected that the Administration would try to refute the substance of what was written, but not resort to personal attacks on Wilson's wife.
6.10.2007 1:10pm
David Drake:
Lostingermany: You state:

"In the Plame case, when her cover was blown, so was the cover of the front corporation she worked in, all the other employees of that front corporation, and ever single person who came into contact with her, the corporation, or any other employees of the corporation."


Could you please give me the source of these "facts"? I have been unable to find any reference to anything like this.
6.10.2007 1:22pm
Crunchy Frog:

Also, this case may be an important precedent. WOuld it not be true, following this, that if a prosecutor doesn't like someone, he can call them in front of a grand jury even if there is no crime that has been committed, catch them in a lie, and prosecute them for perjury? For example, he could say that he was investigating whether my neighbor was burglarized, have me testify as to my whereabouts at the time, and if I was embarassed to say I had been seeing my mistress and lied, he could go after me.

I've seen your mistress. I'd be embarassed too. -:grin:-

In all seriousness, we've all seen how "secret" grand jury testimony can become not-so-secret when it serves the publicity needs of someone involved (See: Barry Bonds steroid case).
6.10.2007 1:29pm
David Drake:
Eric Rasmussen said, "WOuld it not be true, following this, that if a prosecutor doesn't like someone, he can call them in front of a grand jury even if there is no crime that has been committed, catch them in a lie, and prosecute them for perjury?"

This is the most worrying aspect of this case, and the Martha Stewart case: in neither was any underlying offense charged.

Both of these cases will lead to less cooperation with law enforcement authorities: If the police or the FBI want to talk with me in the future (about anything), my response is going to be: "I have the right to remain silent and I am going to remain silent." If it could happen to people as well connected as Mr. Libby and Ms. Stewart, it could happen to anyone.
6.10.2007 1:32pm
Joe Bingham (mail):
I agree, that footnote really does make the judge sound like a jerk. Does anyone know how many of these lawprofs were personal friends of Libby's? After reading the letters written by his acquaintances, I understand that he is a pretty inspiring person with a loyal personal following because of his past behavior.
6.10.2007 1:40pm
ATRGeek:
Bruce Hayden,

Your "understanding" of the facts is incorrect. You should stop using whatever sources supplied you with such misinformation.
6.10.2007 2:00pm
Kazinski:
Byomtov:

One of the facts Joe Wilson made up was that he was sent at the "behest" of the Vice President. But as has been proven by a smoking gun memo, it was actually Valerie Plame that proposed sending him. So it was Joe Wilson that brought his wife up by making a to-do about who sent him on his junket.

Anonymous Jim:
Judy Miller never wrote about Plame, and she claims, and her notes support that she had another source that peddeled the story. Where on the other hand Armitage leaked the story first (Woodward), second (Pincus), and when nothing got printed kept leaking (Novak) until the story finally got out. Why Armitage wasn't charged, especially since he concealed the Woodward and Pincus leaks from Fitzgerald, is a mystery. Unless of course Valerie Plame was not covered by the IIA, or Fitzgerald was on a witch hunt and wanted the biggest scalp he could garner.

That said, I have come to the reluctant conclusion that Libby did lie or at least tried to deliberately mislead the Grand Jury, so he deserves at least some punishment.
6.10.2007 2:01pm
Elliot123 (mail):
Can someone tell us the crime what Fitzgerald was investigating? Is it a crime to say someone who drives into the CIA parking lot everyday is a CIA employee? Is it a crime to say someone who gives lectures to members of the pubic at CIA headquarters is a CIA employee? What exactly were we paying Fitzgerald to do? Did he ever demonstrate that any particular set of actions constituted a crime under statute?

After all that has happened, can anyone tell us if a crime was committed in revealing Plame's identity? If so, what was the crime, and why was it a crime?
6.10.2007 2:04pm
PersonFromPorlock:

There is no way for me to know for sure but it is completely plausible that these disparate sentences could be be explained by the fact that Berger entered into a plea agreement and Libby still denies his guilt.

Libby has a Fifth Amendment right to refuse to admit guilt, and a longer sentence in consequence of his exercising that right would be a clear violation of 18 USC 241 & 242. But don't hold your breath waiting for the government to act on it.
6.10.2007 2:05pm
ATRGeek:
EricRasmusen,

Basically, no. There are a variety of rules prosecutors have to follow before initiating investigations, and not liking someone would not be grounds for opening an investigation. A prosecutor also could not bring someone he disliked into an open investigation and try to set a perjury trap unless the person actually had information material to the investigation (since materiality is an element of perjury).

Of course, this hypothetical person could also avoid commiting perjury by not lying.
6.10.2007 2:10pm
David Drake:
ATRGeek:

But by the time Fitzgerald was interviewing Libby, he already knew the identity of the source that he was allegedly to find.

So why couldn't a prosecutor initiate an investigation into anything, then interview the person he wants and attempt to catch him or her in a lie?

Did Fitzgerald ever state why no one was charged for "outing" Ms. Wilson?
6.10.2007 2:22pm
HaHa:
Where'd all the law and order conservatives go? It's so fun watching smart people squander their credibility. Hypocrites is too kind a word!
6.10.2007 2:29pm
EricRasmusen (mail) (www):
I did have materiality in my example. The prosecutor invents the possibility of a crime in which I might be involved (I live next door to where he claims a burglary took place).

If there are rules on when prosecutions can be initiated, that would help. But remember that I am thinking of abusive chief prosecutors too-- that is, the U.S. District Attorney, or elected county prosecutor, or attorney-general is out to get someone.

The issues are very similar to those involved in entrapment. Fitzgerald knew, it seems, that no crime had occurred--- that is, the leak itself was not criminal, whoever had done the leaking--- but he kept going in the hopes of creating a new crime. Libby did commit perjury-- but it was like when a policeman who goes to a suspect in a burglary case, realizing he can't arrest him for that but disliking him anyway, and offers to hire him to commit a murder.
6.10.2007 2:30pm
byomtov (mail):
Libby has a Fifth Amendment right to refuse to admit guilt, and a longer sentence in consequence of his exercising that right would be a clear violation of 18 USC 241 &242. But don't hold your breath waiting for the government to act on it.

You may be right, but it's a violation that happens probably tens of thousands a time a year. Are you equally sympathetic to a bank robber, say, who refuses a plea bargain, gets convicted, and receives a sentence longer than the offer? Or to a prisoner who is refused parole for no reason other than a refusal to admit guilt?

One of the facts Joe Wilson made up was that he was sent at the "behest" of the Vice President.

Oh stop it. He said the VP asked the CIA to send someone, not that the VP asked that he be sent.

Is it a crime to say someone who drives into the CIA parking lot everyday is a CIA employee?

Yes, if the employee is covert. Really, these last-gasp desperation talking points get more ridiculous every day.
6.10.2007 2:33pm
Montie (mail):

Yes, if the employee is covert. Really, these last-gasp desperation talking points get more ridiculous every day.


If Plame had not been outed, it is fully possible that an enterprising reporter could have followed Plame to work one day and say, "Whoa, she works at the CIA."

Would that have been illegal? (Keep in mind the implications of your answer.)
6.10.2007 2:40pm
byomtov (mail):
Montie,

OK. I'll amend. It's a crime if you know the employee is covert. This information will usually not be available to a reporter. An Administration official, yes, like Armitage, might not know, but is plainly more likely to know.
6.10.2007 2:46pm
JosephSlater (mail):
Also, this case may be an important precedent. WOuld it not be true, following this, that if a prosecutor doesn't like someone, he can call them in front of a grand jury even if there is no crime that has been committed, catch them in a lie, and prosecute them for perjury? For example, he could say that he was investigating whether my neighbor was burglarized, have me testify as to my whereabouts at the time, and if I was embarassed to say I had been seeing my mistress and lied, he could go after me.

Or a special prosecutor could be appointed to investigate me for, let's say, a failed land deal. He can't pin anything on me on that issue, but later he finds somebody who claims I sexually harassed her. The allegations are so weak the claim is thrown out as a matter of law, but during a deposition, I'm asked about a consensual affair with my mistress. Because I'm a public figure, I lie about it. And people go after me for in all sorts of ways, legal and otherwise, for that lie.

Yeah, it would be a bad state of affairs if stuff like that could happen.
6.10.2007 3:05pm
Erasmus (mail):
Elliot123, not everyone who is currently working at CIA HQ is a former spy. Regardless, what's your point? The fact is that she was a spy who worked on WMD issues.

If you were a current CIA spy, hopw comfortable would you feel that the Administration won't blow your cover? So comfortable that you'd be willing to risk your life?
6.10.2007 3:21pm
Jay Myers:
JosephSlater:

Or a special prosecutor could be appointed to investigate me for, let's say, a failed land deal. He can't pin anything on me on that issue, but later he finds somebody who claims I sexually harassed her. The allegations are so weak the claim is thrown out as a matter of law, but during a deposition, I'm asked about a consensual affair with my mistress. Because I'm a public figure, I lie about it. And people go after me for in all sorts of ways, legal and otherwise, for that lie.

Of course if you hired your mistress because of the consensual affair that would be a violation of sexual harassment law and an abrogation of your duty to the public trust. On the bright side, at least it was a paid position (kneeling?) in the Office of Legislative Affairs so the snicker factor was high.

The perjury would not only be a crime but a violation of your oath of office to see that the laws are faithfully upheld. Even Nixon told his people not to lie and his ethical standards weren't exactly sky high.
6.10.2007 4:10pm
Jay Myers:
Erasmus:

Elliot123, not everyone who is currently working at CIA HQ is a former spy. Regardless, what's your point? The fact is that she was a spy who worked on WMD issues.

If you were a current CIA spy, hopw comfortable would you feel that the Administration won't blow your cover? So comfortable that you'd be willing to risk your life?

First, her (non-official) cover was already blown at least once and perhaps twice. That's why she was reassigned to Langley. It was strongly suspected that her identity was sold to the Russians by Aldrich Ames and her name was in an unredacted, unencoded document sent to an embassy in Cuba. The Cubans opened the diplomatic bag and read the documents therein and learned her identity as a CIA asset investigating proliferation. But I'm sure the Cubans would never share that info in order to hurt us, right?

Second, if I was a current spy I would not allow my non-spy spouse write a newspaper column about being sent on a mission for the CIA. Not even if they lied about what they discovered during that mission. People might begin to wonder why the CIA picked them for the mission and start digging into our lives.
6.10.2007 4:21pm
ATRGeek:
Reducing a sentence because of an acceptance of responsibility does not violate the Fifth Amendment. The person is not be forced to be a fact witness against themselves, because their guilt was already established. Their sentence is also not being enhanced because of a refusal to testify. Rather, their sentence is being reduced because their acceptance of responsibility indicates they are farther on the road to rehabilitation.

If the highest prosecutorial authority is abusing their power then the remedy is impeachment. If the relevant impeaching authority refuses to do that--well, then the entire government is corrupted and there is little the law can do about that.
6.10.2007 4:31pm
A. Zarkov (mail):
To my knowledge we still don't know exactly what Plame did at the CIA when Armitage revealed that she worked for the CIA to Novak. Was she really a NOC (no official cover) as many pundits claimed, or did she have a more passive desk job? In other words, was she placed in any kind of jeopardy? Was any project or mission compromised because her status as an employee was revealed? Lots of people work for the CIA and it doesn't matter if anyone knows.

Daniel Ellsberg caused top-secret documents to be published and the case against him was dropped because the government "misbehaved." Nixon and the "plumbers" team did misbehave by breaking into Ellsberg psychiatrist office, but so what? The charge against Ellsberg had nothing to do with any evidence improperly obtained there. Perhaps there was additional government misconduct, but I don't understand why that should matter.
6.10.2007 4:37pm
Hattio (mail):
EricRasmussen says;


The issues are very similar to those involved in entrapment. Fitzgerald knew, it seems, that no crime had occurred--- that is, the leak itself was not criminal, whoever had done the leaking--- but he kept going in the hopes of creating a new crime. Libby did commit perjury-- but it was like when a policeman who goes to a suspect in a burglary case, realizing he can't arrest him for that but disliking him anyway, and offers to hire him to commit a murder.



But that gets several things wrong. First, as he implicitly acknowledges, just because the leak wasn't criminal (and I'm not agreeing it wasn't, just assuming arguendo) doesn't mean that no crime was committed. Perjury is still a crime.

Second, and more importantly, the analogy of an officer trying to entrap somebody by proposing murder for hire is completely inapt. The more accurate analogy would be the police suspect you of something, can't get the goods on you, but when they came to ask your name, you told them Tony Rasmussen instead of Eric. Fitzgerald never asked Libby to lie. He asked him to get on the stand and tell the truth.
If you lied to the police, you would be charged with false information, and I've defended several people who have been already. It happens every day.
6.10.2007 4:42pm
Erasmus (mail):
A. Zarkov, in Fitz's sentencing memo, he stated that Plame was in fact a covert agent and that disclosure of that fact violated the law. I'll take Fitz's word on that over "Jay Myers."
6.10.2007 4:43pm
raj (mail):
Broder has shown yet again that he's a blithering idiot.
6.10.2007 4:56pm
byomtov (mail):
Was she really a NOC (no official cover) as many pundits claimed,

"Many pundits?" You mean like the people at the CIA and Fitzgerald, who just might have relevant information?
6.10.2007 5:07pm
David M. Nieporent (www):
Erasmus: "Fitz," even if you are close enough to him personally to give him a nickname, doesn't get to determine issues of fact, let alone ultimate issues of guilt, in a criminal case. Is this the first time you've taken the prosecutor's word of a defendant's guilt in an uncharged crime, or do you defer to the prosecutor all the time?
6.10.2007 5:09pm
David M. Nieporent (www):
Second, if I was a current spy I would not allow my non-spy spouse write a newspaper column about being sent on a mission for the CIA. Not even if they lied about what they discovered during that mission. People might begin to wonder why the CIA picked them for the mission and start digging into our lives.
Indeed, if I were a current spy I probably wouldn't marry a U.S. Ambassador in the first place.
6.10.2007 5:11pm
NickM (mail) (www):
Any further mentions of the Paula Jones suit should at least acknowledge that the AR judge who dismissed the case was following the old 8th Circuit standard, where you needed to show adverse employment action against you, which was the same as the 7th Circuit standard rejected by the Supreme Court while the case was on appeal. The standard the Supreme Court adopted is more expansive, and allows a sexual harassment claim even if the claimant did not receive adverse employment action if others who agreed to sexual favors received favorable employment action.

When the Supreme Court decision came out, many scholarly commentators predicted that Jones v. Clinton would be summarily reversed and remanded. Instead, it settled with a sizable payout to Jones before the 8th Circuit could consider the case. Common sense should dictate that you don't pay $800,000 to settle a case on appeal when you won a MSJ unless you are very worried that it won't stand up on appeal and that you will have significant exposure at trial.

The materiality of Clinton's lies about his relationship with Lewinsky is therefore an open legal question.

Nick
6.10.2007 5:19pm
lostingermany (mail):
David Drake --

Just do a google search for the firm "Brewster Jennings &Associates".
6.10.2007 6:14pm
Erasmus (mail):
David M. Nieporent, since whether Plame was covered under the act would not be hard to determine if you were aware of the facts, yes, I will take Fitz's word on that. And if she is covered by the act, releasing that fact violates the law assuming you have the requisite criminal intent.
6.10.2007 6:22pm
David Sucher (mail) (www):
I never thought to much about Broder before the last few months -- he always struck me as an intellectual non-entity.

Now I have come to dislike and disrespect him.

Broder wants it both ways -- or rather, he wants to be seen as the only one with any sense. Libby et al were wrong but then Fitzgerald et al were wrong for catching him out.
6.10.2007 6:26pm
byomtov (mail):
"Fitz," even if you are close enough to him personally to give him a nickname, doesn't get to determine issues of fact, let alone ultimate issues of guilt, in a criminal case.

Maybe you could point me to where the defense argued that Plame was not covert. In fact the defense sentencing memo says,

"No evidence suggests that Libby learned Ms. Wilson's status was covert or classified before her identity was publicly disclosed."

Now, that's not quite an admission, but considering all the energy the diehards have poured into the "she wasn't covert" argument, it's not very helpful to that argument either. Note too that the defense successfully argued at trial that Plame's status should not be introduced as evidence, because it would be prejudicial. Wonder why?

Think I'll take Fitzgerald's, and the CIA's, word this time around.
6.10.2007 6:37pm
JosephSlater (mail):
Jay Myers writes: Of course if you hired your mistress because of the consensual affair that would be a violation of sexual harassment law

No, it wouldn't. There are actually a number of cases in which a man (typically) promotes or otherwise favors a woman (typically) with whom he is having a consensual affair or entirely proper romantic relationship, and the general rule is that this is neither sexual harassment nor sex discrimination. It's not even a close question re sexual harassment. Who, in your view, would be "harassed" if the relationship is consensual, as your hypo has it and as the reality of Clinton/Lewinsky was?

Oh, and IIRC, Lewinsky was not "hired" by Clinton because of their affair; rather, she was hired, and later she and Clinton did what they did.
6.10.2007 7:20pm
rlb:
The issue of whether Plame was or wasn't "covert" is pretty tricky. The law apparently requires out-of-the-country assignment. Plame seems to have run a number of weekend errands out of the country in the last five years, which the CIA and Fitzgerald assert is sufficient. Both have a very strong interest in this being the case; the CIA wants to protect its people and Fitzgerald would look bad, very bad otherwise.

Others have said "This requirement does not mean jetting to Berlin or Taipei for a week's work. It means permanent assignment in a foreign country."

The issue hasn't been brought to a court [and never will in this case], so Fitzgerald can go on saying whatever he likes, without technically speaking in bad faith, and will never be called on it.
6.10.2007 7:36pm
JosephSlater (mail):
NickM:

Sure, if a number of Paula Jones's co-workers were having sex with Clinton and for that reason, they were getting promoted, Jones might have gotten past summary judgment. But I don't recall any evidence of that being true, or even plausibly alleged.

The bottom line in a quid pro quo case such as this is that plaintiff must show some adverse action was taken against her because of her refusal to have sex. There was never any plausible evidence of that in Jones's case.
6.10.2007 7:59pm
ATRGeek:
rib,

The relevant statute (50 USC 426(4)(A)(ii)) merely requires that the agent "served outside the United States." It says nothing about the nature or duration of that service outside the United States. Toensing is simply making things up when she claims that the statute requires a "permanent assignment in a foreign country" (there is not such requirement in the statute).
6.10.2007 9:36pm
ATRGeek:
rib,

Oh, and to my knowledge the CIA has never defined the nature of Plame's overseas service (as one would hope they would not). So, I would suggest that you stop paying attention to whatever source of misinformation told you that "Plame seems to have run a number of weekend errands out of the country in the last five years" (unless you just made that up yourself).
6.10.2007 9:56pm
Richard Aubrey (mail):
If none of the known suspects, Armitage et al, illegally leaked Plame's status, then prosecuting them would be wrong. Problem is, which doesn't seem to interest anybody, is where they learned it.
Got a Bush guy. All done.
The leak stuff was just to fool people.
You don't care about the leak, really. There are several possible reasons. One is that you suspect it was not damaging to the US, no harm, no foul. Another is that you suspect that no amount of investigation will ever find the original, illegal leak. A third is that the suspected illegal leaker might be an anti-Bush 'crat someplace and we wouldn't want to inconvenience an anti-Bush 'crat. See Berger.
But it was a useful ploy.
6.10.2007 10:26pm
ATRGeek:
Richard,

Fitzgerald's investigation has not yet closed.
6.10.2007 10:55pm
Jay Myers:
JosephSlater:

No, it wouldn't. There are actually a number of cases in which a man (typically) promotes or otherwise favors a woman (typically) with whom he is having a consensual affair or entirely proper romantic relationship, and the general rule is that this is neither sexual harassment nor sex discrimination. It's not even a close question re sexual harassment. Who, in your view, would be "harassed" if the relationship is consensual, as your hypo has it and as the reality of Clinton/Lewinsky was?

Anyone not sleeping with the boss who wanted or applied for that job. They suffered harm to their career due to not having sex with the boss.

Oh, and IIRC, Lewinsky was not "hired" by Clinton because of their affair; rather, she was hired, and later she and Clinton did what they did.

Wrong. The affair started when Lewinsky was an intern and assigned to the WH during the government shutdown. Once the shutdown was over she would have returned to the executive office building but Clinton intervened to have her hired as White House staff so that the affair could continue.
6.11.2007 12:45am
Elliot123 (mail):
Erasmus: Elliot123, not everyone who is currently working at CIA HQ is a former spy. Regardless, what's your point? The fact is that she was a spy who worked on WMD issues.

If you were a current CIA spy, hopw comfortable would you feel that the Administration won't blow your cover? So comfortable that you'd be willing to risk your life?


My point is that the employer of someone who drives into the CIA parking lot everyday is not a secret, nor is there any attempt to make or keep it a secret.

If I were a spy working for the CIA I would presume that my cover was blown each and every day I drove into that parking lot. The administration doesn't have to do anything.

If I drove into the CIA parking lot everyday, I certainly would not stake my life on the notion that my employer is secret.
6.11.2007 1:00am
c.gray (mail):

in Fitz's sentencing memo, he stated that Plame was in fact a covert agent and that disclosure of that fact violated the law.



Odd that he refused to bring charges along those lines, isn't it? Well, not really. Fitz knew he could not prove Plame was covert within the meaning of the act. But like all federal prosecutors he pads the sentencing memo with "facts" impossible to prove at trial when dealing with a non-cooperative witness.

It's all irrelevant anyway. If Libby's appeals fail he'll be pardoned around Christmas 2008. This is one of the most pointless boondoggles in the history of federal prosecutions.
6.11.2007 2:33am
rlb:
ATRGeek:

The employment history indicates that while she was assigned to CPD, Plame, "engaged in temporary duty travel overseas on official business." The report says, "she traveled at least seven times to more than ten times." When overseas Plame traveled undercover, "sometimes in true name and sometimes in alias -- but always using cover -- whether official or non-official (NOC) -- with no ostensible relationship to the CIA."


http://www.msnbc.msn.com/id/18924679/

Also, I'm aware of what the statute says, but it certainly doesn't have to contradict Toensing's take. I assume that she, as one of the drafters, has a solid basis for her description of the law.
6.11.2007 2:45am
David M. Nieporent (www):
David M. Nieporent, since whether Plame was covered under the act would not be hard to determine if you were aware of the facts, yes, I will take Fitz's word on that.
First, that statement isn't true. Second, it doesn't matter whether it's "hard to determine" or not; prosecutors still don't get to decide questions of guilt or innocence.

As to why it isn't true, ATRGeek and rlb's debate provides a perfect illustration of at least one reason: because the definition of "served outside the United States" isn't clear. Putting aside any factual disputes about Plame's service, the question of how to interpret a statute is one for a court, not the CIA and not a prosecutor.
6.11.2007 5:10am
PersonFromPorlock:
ATRGeek:

Reducing a sentence because of an acceptance of responsibility does not violate the Fifth Amendment. The person is not be forced to be a fact witness against themselves, because their guilt was already established. Their sentence is also not being enhanced because of a refusal to testify. Rather, their sentence is being reduced because their acceptance of responsibility indicates they are farther on the road to rehabilitation.

If I face a longer sentence for refusing to admit guilt, I am being coerced to testify against myself in the sentencing phase of my trial. My already having been found guilty is beside the point.

The notion that confession shows rehabilitation is just silly: the genuinely guilty can cynically crawl before the judge, and surely do.
6.11.2007 8:52am
JosephSlater (mail):
Jay Myers writes, in response to my asking who was "harassed" by Clinton hiring/promoting someone with whom he was having a consensual affair:

Anyone not sleeping with the boss who wanted or applied for that job. They suffered harm to their career due to not having sex with the boss.

Except courts have routinely rejected that theory when, as with Clinton, it involves one consensual relationship. If I have a consensual affair with a female subordinate, and I then promote her, it is well-established that I am not sexually harassing anyone nor even discriminating against anyone based on their sex. I have merely promoted one individual because of my personal affection for her -- which is not, courts repeatedly hold, "because of sex."

To get a different result, you would need different facts: I sleep with a series of subordinates, only promote the ones I sleep with, and don't promote (or otherwise punish) the ones that refuse to sleep with me. But that wasn't the case with Clinton.

You are free to agree or disagree with this interpretation of Title VII, but that's the way courts have interpreted it.

It is fascinating, however, to see the broad view of sex discrimination and harassment law conservatives take when it comes to Clinton.
6.11.2007 11:16am
rarango (mail):
Broder, it seems to me, is the epitome of the inside the beltway pundit whose content is based on maintaining a network of bureaucratic leakers for his stories. I suspect his concern is that investigations and sentencing of leakers directly threatens his status as "dean of the Washington Press corps." God forbid leaders should be pursued, prosecuted and sentenced (and yes, I know Libby was convicted for perjury, not leaking--I am only suggesting that Broder is concerned that leakers might be "chilled" to use that quaint term.)
6.11.2007 12:45pm
ATRGeek:
rlb,

I see nothing about "weekend errands" in the excerpts from the CIA summary you quoted.

As for Toensing, her status as one of the drafters of the statute is irrelevant.

First, as Justice Scalia would point out, it does not matter what Toensing wanted the statute to do. It only matters what the statute actually says (otherwise, there would be no point in written laws). Of course, some would reply that legislative history can be used as an interpretative tool if the statute is ambiguous. But the statute isn't ambiguous: it does not require a permanent assignment overseas, but rather just requires service overseas. So, even if Toensing really did wish the statute to contain such a requirement, by failing to write a statute which did in fact contain such a requirement, her claimed intentions on this subject are irrelevant.

Second, Toensing's intentions are irrelevant anyway, since even if you believe intentions can be an aid to interpretation, it is the legislators' intentions, not the drafters' intentions, which matter. Of course, sometimes legislators adopt drafters' comments as part of the statute or legislative history. But that still requires the legislators to adopt the relevant material, and again it is only the legislators' intentions which matter.

Third, even if Toensing had been a legislator, in order for her claims to have any weight she would have had to place her views on the record at the time of the vote. It is too late to record your intentions once the law has been passed and is being applied in a way you don't like, for obvious reasons (you would have a strong incentive to report your intentions with the benefit of hindsight).

So, at this point Toensing is simply another advocate, and her claims about her intentions at the time are simply irrelevant. And in any event, the statute simply is not ambiguous: it contains no such "permanent assignment" requirement.
6.11.2007 1:51pm