David Limbaugh

The grand jury indictment against Scooter Libby puts Mr. Libby in serious legal jeopardy, but does little to put the Bush administration or the GOP in political jeopardy.

I've read the indictment, the relevant federal statutes and certain cases construing various elements of those statutes. Here's my nutshell report.

The indictment alleges that Valerie Plame was a CIA agent whose very affiliation with the CIA was classified information. Mr. Libby, as an aide to Vice President Dick Cheney, has clearance for classified information.

In such capacity, Libby allegedly learned of Plame's affiliation with the CIA and passed that information on to reporters who have no security clearance and thus are not entitled to receive it.

Libby allegedly lied to FBI investigators and the grand jury about the unauthorized disclosure, saying he'd first learned of the information from the reporters, instead of the other way around.

Based on these allegations, the grand jury indicted Libby for obstructing justice, perjury and false statements. It did not indict him for the "underlying crime" of leaking the classified information, under either the Identities Protection Act of 1982 or the Espionage Act of 1917.

Throughout, almost all legal commentators have agreed that the Identities Protection Act would be very difficult to prove. But they would have been more accurate had they said, "It is very difficult to violate."

To have violated that law, Libby must have known that Plame was a covert agent and intentionally disclosed that information and Plame must have served abroad within five years of the disclosure. Whether or not Plame was actually covert, which is very doubtful, it's highly unlikely that Libby knew she was. Even if Mr. Fitzgerald could have overcome that enormous hurdle, it's inconceivable that he could have demonstrated she served abroad within five years, since she has reportedly been stateside since 1997.

But what about the 1917 Espionage Act? The statute would require Fitzgerald to prove that Libby 1) acquired classified information in his official capacity, 2) willfully communicated that information to a person not entitled to receive it and 3) had reason to believe it could be used to the injury of the United States or the advantage of any foreign nation.

Based on his press conference, Fitzgerald seems convinced that Libby willfully leaked "classified" information (Plame's affiliation with the CIA) to reporters not entitled to receive it. But he couldn't be sure whether Libby had the criminal intent the statute requires.


David Limbaugh

David Limbaugh, brother of radio talk-show host Rush Limbaugh, is an expert on law and politics. He recently authored the New York Times best-selling book: "Jesus on Trial: A Lawyer Affirms the Truth of the Gospel."

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