The Plame Endgame

Jim VandeHei and Walter Pincus report in the Sunday Washington Post on Karl Rove, Scooter Libby, and the endgame in the investigation into the Valerie Plame case. The meat of the reporting (most of it speculative from lawyers familiar with the case) is excerpted below:

What remains a central mystery in the case is whether special prosecutor Patrick J. Fitzgerald has accumulated evidence during his two-year investigation that any crime was committed. His investigation has White House aides and congressional Republicans on edge as they await Fitzgerald’s announcement of an indictment or the conclusion of the probe with no charges. The grand jury is scheduled to expire Oct. 28, and lawyers in the case expect Fitzgerald to signal his intentions as early as this week.

…Many lawyers in the case have been skeptical that Fitzgerald has the evidence to prove a violation of the Intelligence Identities Protection Act, which is the complicated crime he first set out to investigate, and which requires showing that government officials knew an operative had covert status and intentionally leaked the operative’s identity.

But a new theory about Fitzgerald’s aim has emerged in recent weeks from two lawyers who have had extensive conversations with the prosecutor while representing witnesses in the case. They surmise that Fitzgerald is considering whether he can bring charges of a criminal conspiracy perpetrated by a group of senior Bush administration officials. Under this legal tactic, Fitzgerald would attempt to establish that at least two or more officials agreed to take affirmative steps to discredit and retaliate against Wilson and leak sensitive government information about his wife. To prove a criminal conspiracy, the actions need not have been criminal, but conspirators must have had a criminal purpose.

…Conspiracy cases are viewed by criminal prosecutors as simpler to bring than more straightforward criminal charges, but also trickier to sell to juries. “That would arguably be a close call for a prosecutor, but it could be tried,” a veteran Washington criminal attorney with longtime experience in national security cases said yesterday.

Other lawyers in the case surmise Fitzgerald does not have evidence of any crime at all and put Miller in jail simply to get her testimony and finalize the investigation. “Even assuming . . . that somebody decided to answer back a critic, that is politics, not criminal behavior,” said one lawyer in the case. This lawyer said the most benign outcome would be Fitzgerald announcing that he completed a thorough investigation, concluded no crime was committed and would not issue a report.The criminal conspiracy theory seems like a tough sell for any prosecutor. If there are any charges filled, one or more charges of obstruction of justice (or possibly perjury) would seem like the more likely outcome.

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