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   A Reader Nails It [Plame Investigation]

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10/28/2005 9:00 pm

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Entered 10/28/2005, Updated 10/28/2005

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This blog's greatest resource is you. Here's an email that shows why: Just got through reading a transcript of the Fitz press conference, and a few things stood out. As bizarre as that baseball analogy was, I think it said a lot about what might happen in the next few days or weeks. Seems to me that when discussing the possibility of a leak-related crime, e.g. violation of either the Intelligence Identities Act or Espionage Act, Fitz focused on how such prosecutions were very difficult because they require proof of a mental state. (Hence the silly analogy about a pitcher throwing at guy's head.) Under both statutes, the disclosure of classified info must be intentional or purposeful, i.e., the perp must have "known" that the information was classified (for the Espionage Act) or that the agent was "covert," among other things (under the Intelligence Act). As Fitz asked, "was this something where he intended to cause whatever damage was caused? Or did they intend to do something else and where are the shades of gray?" I don't know what Fitz knows. But I think he is one inch from prosecuting the leak itself - at least his public comments leave the impression that he's pissed about it - and the only thing holding him back is that he's afraid he can't prove state of mind. Proving state of mind is really hard in any case -- and it's especially hard when the defendant is an intelligent career political operative with an expensive white collar defense lawyer. I think Fitz can do it, and I think Fitz thinks he can do it, but he seems to be playing it cautious. Why? Let's just take the Espionage Act. Fitz clearly said that Plame's position was classified, he implied strongly that it related to national security, and as Josh Marshall pointed out in a recent post, the indictment itself states that both Cheney and Libby knew the precise division of the CIA where she worked, which by definition made her covert. [Continued...]


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