Muddying The Waters

The latest “bombshell” revelation from the Libby case is that President Bush authorized the declassification of the National Intelligence Estimate on Iraq – which is something we already know. First of all, the already-formed lefty talking point that Bush released the NIE just to spite Joe Wilson is unsupported by the paper. We already know that Bush released the contents of the NIE in June of 2003. He’s the President, he has full authority to declassify documents, and Fitzgerald makes absolutely no claim that the release of the NIE was in any way related to the Plame matter.

Tom Maguire, who’s been doing yeoman’s work in following this case, has a detailed look into the actual substance of the decision handed down. The Bush “revelations” are only a part of the material, and the news is mixed for Libby’s defense team. The judge set down some rather clear limits as to Mr. Fitzgerald’s authority in withholding evidence, but at the same time the judge also limited what Libby’s defense team can request in discovery.

Maguire also follows up with a detailed analysis of the political implications of the recent release, which are unsurprisingly a lot less cut-and-dried than the usual raving partisan blather spread throughout the blogosphere and mainstream media. Was Bush’s release of information from the NIE even related to the Plame case? It doesn’t seem that way, which makes it a rather large red herring in the grand scheme of things. However, that doesn’t necessarily mean that Fitzgerald is left with nothing either.

All in all, I don’t think this case is going anywhere. Fitzgerald has to prove that Libby intentionally conspired to withhold relevant information from his probe. That’s a difficult case for Fitzgerald to prove even if Libby really did “leak” anything. Meanwhile, the Libby defense team has a very credible argument that says that Fitzgerald is cherry-picking material and can’t provide enough evidence for either side without violating executive privilege. If the Libby team can’t have full access to exculpatory evidence in discovery, then the trial is basically a show. I don’t think that Fitzgerald is necessarily playing politics here, I think he was given a case and he’s prosecuting it as strongly as he possibly can. That’s what a prosecutor does in our system of law. However, the Libby team can argue that Plame’s status was not known at the time, and they can argue that whatever Fitzgerald alleges that Libby perjured himself about was not material to the case on hand – and materiality of statements will be an issue if this case goes to trial.

We know that Joe Wilson was a liar, and that the Senate Iraq Report called him out on his misstatements. The fact that Bush was trying to clear the air about what intelligence they had is hardly a shocker. What we have here only muddies the waters, although it appears for some, the benefit of a trial should simply be a formality – they’ve already made up their minds about Libby’s (and by extension, the President’s guilt). Fortunately our system of law isn’t run by those people, and Fitzgerald will either have to put up or shut up eventually – and I’m guessing that he doesn’t have anywhere near enough to successfully prosecute Libby and prove that there was an intentional leak of Plame’s name to the press.