Intriguing Speculation in the Plame Investigation

Over the last few weeks, I've been trying to prepare myself for the very real possibility that Patrick Fitzgerald's investigation will end in the next few weeks without any indictments being handed down. No frogmarching. No perp walks. No mega scandal. Yet whenever I feel I'm getting my wishful thinking under control, the Washington press corps provides some new tantalizing bit of information that sends my imagination soaring . Part of me suspects that I'm being jerked around by people who don't know any more about Fitzgerald's investigation than I do. But who can resist stuff like this, from Saturday's New York Times:

A lawyer who knows Mr. Libby's account said
the administration efforts to limit the damage
from Mr. Wilson's criticism extended as high
as Mr. Cheney. . . .

Mr. Libby has said he spoke with Mr. Cheney
on July 12, six days after Mr. Wilson's article.
Mr. Libby said he told Mr. Cheney that
reporters had been pressing the vice president's
office for more details about who sent Mr.
Wilson to Africa. The two men spoke when
Mr. Cheney was on a trip to Norfolk, Va., for
the commissioning of the carrier Ronald Reagan.

Mr. Libby said Mr. Cheney directed him to
refer reporters to Mr. Tenet's statement, which
said that the C.I.A. had been behind Mr.
Wilson's selection for the trip. After talking
with Mr. Cheney, Mr. Libby has said, he spoke
with reporters, including Ms. Miller. He told
her that the vice president had not sent
Mr. Wilson to Africa. Mr. Libby also spoke to
Matthew Cooper of Time magazine, who has
written, "Libby told me Cheney had not
been responsible for Wilson's trip."
In his conversation with Ms. Miller, Mr. Libby
added another detail. He said that he had
heard reports that Mr. Wilson's wife had
something to do with sending him on the
trip. But he has said he did not know her name
or position at the agency.

The clear implication here is that Cheney himself was very much involved in the White House response to Joe Wilson's accusations. Indeed, the Times seems to be suggesting that Libby was acting at Cheney's behest when he spoke to reporters about Wilson's wife.

Then, on Sunday, George Stephanopoulus drops this apparent bombshell on ABC's This Week (hat tip Think Progress):

Definitely a political problem but I wonder,
George Will, do you think it's a manageable
one for the White House especially if we don't
know whether Fitzgerald is going to write a
report or have indictments but if he is able
to show as a source close to this told me this
week, that President Bush and Vice President
Cheney were actually involved in some of
these discussions.

Finally, we get this intriguing bit of speculation from from Sunday's Washington Post:

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. . . .

One source briefed on Miller's account of
conversations with Libby said it is doubtful
her testimony would on its own lead to
charges against any government officials. But,
the source said, her account could establish a
piece of a web of actions taken by officials that
had an underlying criminal purpose.

After reading all that, it's hard not to let your imagination get carried away. In my mind's eye, I can almost see the headline. "ROVE, LIBBY, NOVAK INDICTED. PRESIDENT AND VICE PRESIDENT NAMED AS UNINDICTED CO-CONSPIRATORS."

But then I remember that this speculation is coming from people who have very little first-hand knowledge of what's actually going on in Fitzgerald's office; it's all pure conjecture. But is it plausible conjecture? Could Fitzgerald be working on a conspiracy case? Could such a case involve Cheney and/or Bush? A number of bloggers (mostly conservative) have their doubts.

Tom Maguire writes:

So let's see - Fitzgerald might try to prove a
conspiracy to do something legally that, if
done differently, would have been illegal?

Captain's Quarters writes:

Now the Post reports that inside sources in
Fitzgerald's office tell them that the strategy
has evolved. Instead of finding an act of
criminal behavior, which they have
apparently not found, Fitzgerald wants to
create a conspiracy to commit an overall
criminal end -- exposing Valerie Plame in
retribution for Joseph Wilson's
outspokenness -- bcommittingng a series of
non-criminal acts.

James Joyner of Outside the Beltway writes:

Aside from that, what exactly would Rove and
Libby "underlying criminal purpose" have
been? Rather clearly, the goal was to discredit
Joe Wilson not "out" his wife. So, their purpose
wasn't criminal. The allegation is that their
method--knowingly exposing an undercover
intelligence operative--was.

These points are well-taken. A conspiracy is merely an agreement to commit a criminal act. You can't conspire to do something that is not illegal. It's true that you can be charged with conspiracy even if the underlying crime is never carried out, but that does not seem to be the situation we are presented with. Valerie Plame was outed. That act was completed. Whether or not it was a crime depends on the knowledge and intent of those who outed her. The same would be true of an agreement to out her. Proving a conspiracy to violate the Intelligence Identities Protection Act or the Espionage Act would involve the same basic knowledge requirements as proving the underlying crime. Therefore, convicting someone of illegally conspiring to out Plame would be just as hard as convicting someone of illegally outing Plame. Conspiracy would not make sense as a stand alone charge.

There is another possibility, though. It could be that Fitzgerald is considering indicting individuals for conspiracy to obstruct justice. If, for instance, in the early days of the investigation, administration officials got together and came up with a false cover story, that could form the basis of a conspiracy charge, even if the actual outing of Plame was not a crime. This is the Martha Stewart scenario, where the real crime is lying to investigators. Along these lines, don't forget this old post by Murray Waas:

Also of interest to investigators have been a
series of telephone contacts between Novak
and Rove, and other White House officials, in
the days just after press reports first disclosed
the existence of a federal criminal investigation
as to who leaked Plame's identity.
Investigators have been concerned that Novak
and his sources might have conceived or
co-ordinated a cover story to disguise the
nature of their conversations.

If there is a stand-alone conspiracy charge being contemplated, I suspect it is for this sort of behavior, not for the underlying act of outing Plame.

On a final note, I direct your attention to the following strange paragraph from Sunday's Post:

By early June, several weeks before Libby is
said to have known Plame's name, the State
Department had prepared a memo on the
Niger case that contained information on
Plame in a section marked "(S)" for secret.
Around that time, Libby knew about
the trip's origins, though in an interview
with The Washington Post at the time,
he did not mention any role played by
Wilson's wife.

Is the Post hinting--in some cryptic sort of way--that Libby may have perjured himself? This paragraph seems to indicate that Libby knew the story behind Wilson's trip in early June, well before his conversations with Judith Miller. Doesn't that contradict Libby's grand jury testimony, as reported by the Post on Friday? And how does the Post know what Libby knew at the time if he didn't tell them in the interview? Does this paragraph make any sense to anyone? Am I misunderstanding it?