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Late Nite FDL: What Was That About “No Underlying Crime?”


One of the many fine lessons we learn from our upstanding wingnut betters is that perjury, obstruction of justice and false statement are only crimes if they are being committed by Bill Clinton’s cock. Unless there is an underlying crime, the law’n’order brigade think it is perfectly okay to disregard the law and say any such shit as might invade your head at the moment.

But let us not get lost in the dark forest of wingnut talking points (or perhaps more aptly the "toothpick village.")  Let’s take a look at the words of Judge Thomas Hogan, appointed by St. Ronald Reagan, as he looks back on the decision he made to compel testimony from Judith Miller and Matt Cooper:

"Blood was spreading in the water," Hogan said. "The sharks were gathering. It’s typical Washington politics, except that this involved the commission of a crime."

While the White House sought to deny Wilson’s accusations, the identity of his wife — CIA officer Valerie Plame — was leaked to reporters, apparently in violation of a law designed to protect covert operatives.

I. Lewis "Scooter" Libby, 55, Vice President Cheney’s former top aide, has been charged with perjury and obstruction of justice for lying to FBI agents and a federal grand jury about when he learned of Plame’s identity and when he subsequently discussed it to reporters.

Hogan, who oversees grand juries, got involved in the CIA leak investigation when Special Counsel Patrick Fitzgerald sought to compel several reporters to reveal their sources and what they were told about Plame.

Fitzgerald tried to get evidence he needed elsewhere, Hogan said, describing the prosecutor as "dogged" and "one of the best I have seen."

Only Miller, then working for the Times, and Time magazine reporter Matthew Cooper refused to cooperate with Fitzgerald, saying they did not believe that the waivers of their confidentiality agreements with sources were granted voluntarily.

Eventually, Cooper’s source — White House adviser Karl Rove — provided a waiver that satisfied the reporter. But Miller wasn’t, and she refused to name her source, who turned out to be Libby.

Hogan, an appointee of President Reagan, said he rejected imposing a fine on Miller because he did not believe anything other than jail would get her to obey his order to testify. She spent 85 days behind bars before Libby gave her a waiver she thought was sufficient.

Miller wasn’t an innocent bystander, Hogan said. "She was an actor in the commission of a crime," he said. "She was part of the transfer of information that was a crime."

The judge said he did not enjoy sending Miller to jail. But he said the law is clear: Reporters do not have a special privilege under the First Amendment to keep their sources secret, especially when a crime has been committed.

I’m going to take a perilous leap here and say Judge Hogan believes there was an underlying crime committed. 

Remind me what the underlying crime in Whitewater was?  I must have a very bad memory.

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Jane Hamsher

Jane Hamsher

Jane is the founder of Her work has also appeared on the Huffington Post, Alternet and The American Prospect. She’s the author of the best selling book Killer Instinct and has produced such films Natural Born Killers and Permanent Midnight. She lives in Washington DC.
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