Monday, November 21, 2005

Idle speculation

Trying to make sense of Woodward's blizzard of chaff is difficult at this point. Ditto, for diametrically opposed reasons, with Fitzgerald's game plan. Lots of folks are trying to figure out how they intersect.

I'm as confused as the next guy. But here are a few what-ifs to ponder. I'm about to head out of town, and don't have the bandwidth to really run these ideas down. But perhaps someone else could pursue the inquiry or shoot me down.

One of the current Plamegate puzzlements is the fact that Libby's indictment goes into considerable detail regarding things that are not strictly necassary to the charges brought. Fitz essentially offers up a pretty good Intelligence Identities Protection Act fact pattern, but doesn't charge it. Lots of bloggers have offered up possible explanations, but here is one I haven't seen -- what if an IIPA count was in the indictment until the last minute? In other words, what if he planned to charge it, and something happened at the last minute that made him back it out?

Now from a forensic standpoint, this makes some sense. Having done all the work to add the factual predicate for those charges, it is easier to leave it in than to take it out and reconstruct the indictment. (If Fitz is convinced that the underlying crime occurred whether or not he can prove it, that would be another vote in favor of leaving it in.)

So what could have happened to change Fitz's plans? If Fitz got hold of a new fact at the eleventh hour that muddied his case slightly, he might well have decided to go with the airtight counts only.

Maybe this is where Woodward and his mystery source come in. One of the requirements of the IIPA is that the "United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States." So here is my off-the-wall hypothetical: The first guy who leaks knowing that the agent he exposes was a NOC is screwed on this issue. But what if you are not the first? If 20 government officials have already blabbed, one could argue that, simply by virtue of those prior leaks, the U.S. is no longer taking affirmative measures to conceal the relationship. I have no idea if case law or legislative history precludes this intepretation, but if I were on Libby's defense team, and I knew others had leaked the name before me, I would at least take a look at arguing this defense.

See where I'm going here? Maybe what happened is that word of Woody and his mystery date reached Fitzgerald on the eve of his announcement and the IIPA count got pulled as a result.



Post a Comment

<< Home

see web stats