The Libby Indictment

David Limbaugh, a practicing lawyer, offers his take on the Libby indictment.

Based on his press conference, Fitzgerald seems convinced that Libby willfully leaked "classified" information (Plame's affiliation with the CIA) to reporters not entitled to receive it. But he couldn't be sure whether Libby had the criminal intent the statute requires. Notice Fitzgerald didn't say he would have difficulty proving Libby's criminal intent but that he didn't know what Libby's intent was. That's a significant distinction because it's the difference between Libby having committed a crime that is difficult to prove, and not having committed it at all. Also note that the United States Supreme Court held that in order to be guilty of violating the Espionage Act, the accused must not only have intent or reason to believe the leaked information could be used to injure the United States or benefit a foreign country. He must also have acted in "bad faith." So, popular legal opinion aside, it seems it would have been quite difficult for Fitzgerald to make a case against Libby under the Espionage Act as well. And this is where the legal becomes relevant to the political. Democrats have been saying from the outset that Bush evildoers conspired to disclose Plame's "covert" identity to exact revenge on her husband Joe Wilson for undermining their claim that Saddam Hussein had tried to acquire uranium "yellowcake" from Niger. But no amount of posturing and yelling will make true their false charge that the Bush administration "outed" Valerie Plame to hurt its political enemies, to the detriment of national security. It's not just unprovable; it's false. Democrats are going to have come to come up with a better plan to criminalize the war.