Published in Sully's blog today.
Just got through reading a transcript of the Fitz press conference, and a few things stood out.
As bizarre as that baseball analogy was, I think it said a lot about what might happen in the next few days or weeks. Seems to me that when discussing the possibility of a leak-related crime, e.g. violation of either the Intelligence Identities Act or Espionage Act, Fitz focused on how such prosecutions were very difficult because they require proof of a mental state. (Hence the silly analogy about a pitcher throwing at guy's head.) Under both statutes, the disclosure of classified info must be intentional or purposeful, i.e., the perp must have "known" that the information was classified (for the Espionage Act) or that the agent was "covert," among other things (under the Intelligence Act). As Fitz asked, "was this something where he intended to cause whatever damage was caused? Or did they intend to do something else and where are the shades of gray?"
I don't know what Fitz knows. But I think he is one inch from prosecuting the leak itself - at least his public comments leave the impression that he's pissed about it - and the only thing holding him back is that he's afraid he can't prove state of mind. Proving state of mind is really hard in any case -- and it's especially hard when the defendant is an intelligent career political operative with an expensive white collar defense lawyer. I think Fitz can do it, and I think Fitz thinks he can do it, but he seems to be playing it cautious. Why?
Let's just take the Espionage Act. Fitz clearly said that Plame's position was classified, he implied strongly that it related to national security, and as Josh Marshall pointed out in a recent post, the indictment itself states that both Cheney and Libby knew the precise division of the CIA where she worked, which by definition made her covert. So right there - as soon as he tells that to Miller - you have a prima facie violation of the Espionage Act.
Fitz also said, "I don't buy that theory [that one should never use the Espionage statute], but I do know you should be very careful in applying that law because there are a lot of interests that could be implicated in making sure that you picked the right case to charge that statute ... You want to know what their motive is, you want to know their state of knowledge, you want to know their intent, you want to know the facts." He went on to lament the fact that Libby had lied, thus throwing the proverbial sand in his eyes.
What's all this mean? Well, seems like Fitz has a pretty strong case for the Espionage Act, and if Plame met the objective standards in the Intelligence Act, for that one too. And it seems like the fact that Libby lied repeatedly is very strong evidence of a culpable state of mind, belying any claim that he didn't "know" the info was classified or that divulging it was wrong. Add that to the very specific allegation in the indictment that he knew exactly where she worked, and there it is.
So why not charge it? Because Fitz has Libby nailed on the 5 counts from today's indictment. Just nailed. So he's bringing Libby in on those charges, they're going to talk some turkey, and Fitz is going to see if Libby will talk, maybe about VP, maybe about Official A (who's clearly Rove), or maybe about the VP's moles at State and in the CIA. Offer some carrots - maybe no jail - but if Libby refuses, then Fitz brings down the espionage or intelligence act charges. Libby has nowhere to go, and Fitz knows it. In my view, he's going to try to exploit that opening before wrapping this thing up.
Is Cheney the ultimate target of Fitzgerald's investigation? If so, this thing might just be ready to blast wide open.