Why Fitz might have ducked the outing charge

I discount virtually everything that I hear on the news and read online (even at dKos) regarding the legalities of Plamegate. Instead, I read and reread Fitz's official statements and press conference transcript to try to understand what HE has said. As Darksyde's recent diary so eloquently states, I look to Fitz for the truth.

A good example is the apparent mystery about why Fitz didn't charge Scooter with the underlying 'outing'? Consider Fitz's own account in his press conference: (more)

According to Fitz, the case is as simple as ABC:

A) Scooter said he didn't convey Plame's name to reporters because he didn't know it. Fitz offers strong evidence that he did and did. Fitz adds that Scooter is the first government official known to have done so. So Scooter was the 'leaker'. Fitz says:

At the end of the day what appears is that Mr. Libby's story that he was at the tail end of a chain of phone calls, passing on from one reporter what he heard from another, was not true. It was false. He was at the beginning of the chain of phone calls, the first official to disclose this information outside the government to a reporter. And then he lied about it afterwards, under oath and repeatedly.

B) While Scooter tried to out Plame, Fitz didn't reach a conclusion about whether or not that outing was criminal. It may have been, it may not have been. To prove one way or the other, Fitz would have to figure out what was in Scooter's mind - and Libby's lies made that harder. This was the lengthy 'baseball analogy'. You can read that in the transcript.

C) By lying repeatedly and provably to the FBI and GJ, Libby acted as if HE thought he had done something criminal. Fitz doesn't quite say that, but I read it between the lines in the following part of his press conference:

You need to know at the time that he transmitted the information, he appreciated that it was classified information, that he knew it or acted, in certain statutes, with recklessness. And that is sort of what gets back to my point. In trying to figure that out, you need to know what the truth is.

So our allegation is in trying to drill down and find out exactly what we got here, if we received false information, that process is frustrated.

But at the end of the day, I think I want to say one more thing, which is: When you do a criminal case, if you find a violation, it doesn't really, in the end, matter what statute you use if you vindicate the interest.

If Mr. Libby is proven to have done what we've alleged -- convicting him of obstruction of justice, perjury and false statements -- very serious felonies -- will vindicate the interest of the public in making sure he's held accountable.

It's not as if you say, "Well, this person was convicted but under the wrong statute."

I think -- but I will say this: The whole point here is that we're going to make fine distinctions and make sure that before we charge someone with a knowing, intentional crime, we want to focus on why they did it, what they knew and what they appreciated; we need to know the truth about what they said and what they knew.

With nothing else to go on (thanks to Scooter), Fitz simply took his actions at face value and charged him with lying to cover up whatever it was Scooter thought he did.

Fitz did this even though he recognizes that everyone is dying to know more:

I know that people want to know whatever it is that we know, and they're probably sitting at home with the TV thinking, "I'm want to jump through the TV, grab him by his collar and tell him to tell us everything they figured out over the last two years." We just can't do that. It's not because we enjoy holding back information from you; that's the law.

So Fitz knows that enquiring minds want to know and it seems like Fitz could have added the charge if he wanted and let the jury decide - so why didn't he?

[speculation on]

I'm a bit surprised that I haven't seen much (any?) discussion of what an 'outing trial' would be like:

• Defense attorneys would try to prove that Plame wasn't covert - supoena CIA personnel (including covert), documents and procedures.
  
• Defense attorneys would try to prove that Plame was party to a politically motivated attack on VP - supoena CIA personnel (including covert), documents and procedures.
  
• Defense attorneys would try to suppoena accounts of the meeting that set up Wilson's trip - supoena CIA personnel (including covert), documents and procedures.
  
• Defense attorneys would try to prove that no harm was done - supoena CIA personnel (including covert), documents and procedures.
  
• Defense attorneys would try to prove that Wilson's Op-Ed was a scurrilous lie - supoena CIA personnel (including covert), documents and procedures.
  
• etc.
  
• Prosecution has to counter ... etc.

We know Scooter will happily steamroll national security if he feels threatened. Fitz might block some requests, but he probably couldn't stop them all. Some material would get into the trial and the appeals process. Inevitably, more secrets would leak. In short, an outing charge would be an invitation to a potentially disastrous (to national security) 3-ring circus. Many people may want that, but I can understand if Fitz would just as soon pass.

[speculation off]

As the tags indicate, this may just be my imagination. But I take support from the fact that Fitz repeatedly mentioned fears of harm to national security and repeatedly said that the charges have nothing to do with Plame, the CIA, yellowcake, or anything else security-related. More than an apology, his comments seemed to me to be preemptive:

This indictment is not about the war. This indictment's not about the propriety of the war. And people who believe fervently in the war effort, people who oppose it, people who have mixed feelings about it should not look to this indictment for any resolution of how they feel or any vindication of how they feel.

...

The indictment will not seek to prove that the war was justified or unjustified. This is stripped of that debate, and this is focused on a narrow transaction. And I think anyone's who's concerned about the war and has feelings for or against shouldn't look to this criminal process for any answers or resolution of that.

and again:

What we're talking about is why -- the investigation was why someone compromised her identity. And the issue in this indictment is whether or not Mr. Libby knowingly and intentionally lied about the facts.

And whatever happened in that trip and what role, if any, the wife played is really irrelevant and not our focus.

What is set forth is a belief on his part that she played a role in the trip, and that is set forth in the indictment.

Whether that belief is 100 percent, 100 percent false, or a mixture of both, is, sort of, irrelevant. But it does set forth in there that he had that belief that she was involved in the trip.

By accepting the gift that the dumb SOB gave him, Fitz totally avoids a circus. As of this morning, Libby's lawyers are talking about a defense of 'confusion and lapse of memory' with no reference to politics or national security. So far, so good.

[speculation on]

Scooter is in more jeopardy and has fewer options than if the 'outing' were part of the charge. His baldface lies about dates, times and phone calls are a mundane and tawdry crime - especially when Fitz presents them as the dirt-stupid, tacit admission of guilt that they really are.

Fitz at summation:

"Ladies and gentlemen, what the defendant is alleged to have done is depressingly common. I have seen it countless times. A person has done something for which they fear legal retribution and they lie to save their skin. Mr. Libby did something that he thought was wrong or illegal - and he lied doggedly and repeatedly to save his skin. There are thugs in courtrooms every day, all over America, that do exactly the same thing. Mr. Libby is just a thug in a button-down shirt that got caught in his lie."

The maliciousness and utterly mundane stupidity of Scooter's alleged crimes can only worsen his chances. This sort of mean-spirited, white-collar thuggery can provoke a judge and/or jury to dish out a loooong sentence. Think Bernie Ebbers. If I were Scooter, I would start digging deep for stuff to trade.

[speculation off]

P.S. I believe that Fitz is one hell of a smart, honest lawyer.