The instinct might be most acute when the lawyer suspects, in an ass-puckering moment, that he himself might actually be in legal jeopardy. For an ethical violation, or an error or omission, or even the commission of a crime. Given that lawyers are often operating right out there at the fringe of legal permissibility (it's why they're hired, to take on a legally fraught situation where the client is in dire straits and needs a risk-taker), such moments are not as rare as the lay public might think. Every litigating lawyer, as a wise senior attorney once told me long ago, lives in his own private hell.
At such a moment, the lawyer's mind seeks frantically for the escape route, the exception within the statute, the bulletproof defense. If none seems immediately available, the legal instinct is to examine what has already happened to see if the tweaking of reality might improve things. The invention of a "new" fact, one that never happened, just might take the pressure off. A substitute matrix, a better reality than the bitter one that keeps the lawyer awake at night.
Scooter Libby is now on trial in Washington, D.C. for perjury, lying and obstruction of justice, but all the counts relate to the same central dilemma. Libby told Patrick Fitzgerald and the grand jury that he learned about Valerie Plame's CIA connection from reporters, and not the other way around. It wasn't true. At trial, Scooter now must sell the argument that he was so busy he can't remember how he first found out. This is isn't true either, and Fitzgerald knows it. Fitzgerald knows it because of Title 50, Section 421, United States Code Annotated, the Protection of Certain National Security Information, or the "Identities Act."
Here are the elements, the matrix. The perpetrator must:
1. Have authorized access to classified information that identifies a covert agent; and
2. Intentionally disclose information identifying such agent to an individual without classified clearance; and
3. Know that the information disclosed identifies such covert agent; and
4. Know that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States.
Those are a lot of semicolons and ands. Yet Scooter, looking down that list (after David Addington, one hears, informed him about its nasty applicability), could find little solace within it. (1) is all too easy: Scooter had high security clearance as the Vice President's chief of staff, and his knowledge of Valerie Plame's name and role were the result of a classified CIA briefing. (2) Well, he told a bunch of reporters about Valerie Plame's connection to Joe Wilson's trip, and threw in that she worked for the Agency. The reporters did not have clearance. (3) Not too tough there: he gave the reporters her name, the best kind of information for identifying a covert agent. And (4) Oops. The CIA immediately demanded an investigation after Novak's column "outed" Valerie Plame, contending it was a violation of this very Section 421 --highly suggestive of a previous intent to keep her name secret.
So Scooter, simply doing a piece of typical hatchet work for Dick Cheney, trying to please the old Side-Smiler, suddenly found himself the point man for a heavy fine and a possible ten-year stretch in the federal pen. When questioned by Fitzgerald, and while testifying before the grand jury, Scooter didn't know whether anyone was going to be charged under the Identities Act. So he came up with something. Something a little desperate and frankly unworthy of a published novelist. He decided to finesse matters by short-circuiting the very first requirement up there. Element #1. He would say that he didn't learn Valerie's name from his access to classified information. Scooter would say that the reporters told him. The bear trap of Section 421 could remain unsprung.
There were two problems with this neat evasion. First, it wasn't true. Second, it was transparent as hell, and a prosecutor as smart as Fitzgerald would immediately recognize it for the pathetic dodge it was.
But, to be fair, I have a question: so what? Patrick Fitzgerald never indicted anyone for the real crime, the real, serious damage, which was the intentional disclosure of a covert agent's name. A covert agent who worked undercover in anti-proliferation issues through the "brass plate" cover of Brewster Jennings Co., who may have run foreign agents whose lives were placed in jeopardy by the sudden disclosure of their cover by the Executive Branch of the United States of America. Fitzgerald passed on that. So if Scooter obstructed an investigation underlying a prosecution that Fitzgerald never intended to pursue, what does an incidental lie about disclosure have to do with...well, anything? Is Fitzgerald's righteous zeal about protecting the "integrity of the system?" Not worth the candle, in my opinion. Fitzgerald knew why Scooter lied, Scooter knew, and now you do if you didn't before.
Fitzgerald's case is makeweight, an excuse for pulling back from the real issue, an alibi for not pursuing Rove and Cheney, a reason to hang around the power center of Washington D.C. for a couple of years. Scooter's life is wrecked, but he never seemed like the baddest of the bad. He was doing a dirty job, as lawyers often do. And, as lawyers often do, he got too creative at the wrong moment and found there was hell to pay.
January 30, 2007
"Why, Sir, a man who talks nonsense so well, must know that he is talking nonsense." Dr. Johnson, about 200 years ago.
I'm not so sure in W's case, although this may simply result from Bush's position outside the bell curve of normal human stupid-variation. He's always talked nonsense about Iraq. "It's the central front in the war on terror," "we fight them there so we don't have to fight them here," and so on. Always, always I get the sense that Bush, confined as he is to the emotional age he achieved before descending to the bottom of countless whiskey bottles, thinks like a 9 year old, and not like a precocious 9 year old. More precisely, like a 9 year old cribbing a social studies paper on Iraq from the I-J volume of the World Book Encyclopedia, circa 1955. What distinguishes the truly simple mind from the discerning mind is the inability of the former to think in terms of simultaneous complex variables, and the tendency of the simpleton to use "concepts" instead of "facts." Facts are hard to deal with, because you have to read, think and synthesize them into a pattern with other facts you have learned the same way. This is what really smart people instinctively know, and always do. They know there are never any shortcuts to understanding anything. Bush doesn't do things like that. He grabs at the broadest generalities he can find and settles there, permanently.
Bush began his Iraq war on the simple proposition that everyone in Iraq was an "Iraqi" who was a "person" just like every other person in the world, and all people like Western-style democracy because it's the best system. That's it. He started there, and he's still there. If you listen to anything he says about Iraq, that reductive nullity lies at the very root. Thus, he identifies the "enemy" in Iraq (as he did in the SOTU address) as a non-specific, freedom-hating killer. Period. The "government" in Iraq is not an Iranian-influenced coalition of Shiite parties in an opportunistic alliance with Kurdish leaders (the Kurds cooperating in order to assure their eventual complete independence in Kurdistan, with the inclusion of Kirkuk), but the "democratically elected government of Iraq." Thus, anyone not cooperating with this central government holed up in a six-mile fortress in Baghdad is the "enemy" who should be hunted down and killed, with the assistance of as many American soldiers as we can scrounge up.
I read other blogs, of course, including the big collating blogs like the Huffington Post, and where I probably part company with a lot of dissident commentary is in the ascription of cupidity to Bush, or the tendency to place him at the center of a vast criminal conspiracy with other Bushian malfeasors. I can probably be quoted to my own contradiction on this point, but I don't see Bush's awful incompetence, secrecy, and (in effect) evil-doing as primarily the result of bad intentions. Cheney, I see otherwise. There the charges of malice aforethought make sense. Cheney is an undermining force in American life with huge destructive tendencies. While not half as smart as he thinks he is, he's clever enough to engineer war-profiteering on an enormous scale and to play Bush like a badly-tuned violin.
Bush is not now, nor is he likely to become, Big Rich by Texas standards. He doesn't even have $100 million, the minimum "Unit" necessary to hang with J.R. Ewing and the boys at the Oil Barons Club. Cheney, on the other hand, has gotten very, very rich, and while he'll never live long enough to enjoy the bonanza he could have reaped after this Administration sinks beneath the oil slick of history (so many grateful CEO's would have crowded round), he loves that game of making rich people even richer, of basking in the reflected glow of other Insiders who love war and all the money it can make.
Bush is just a natural born screw-up, a guy who could never become a pro at anything. A permanent amateur, and not a talented one. I continue to think, as I have said before, that his presence in the Oval Office says something profoundly disturbing about the state of the union, and maybe what it says most of all is that the abandonment of the political arena by all the talented Americans who decided to make money instead left behind only two classes of people to run the country and take our money in taxes for their own use: fools and liars, and they're both in ascendance in Washington now.