That's what I can't figure out. It's like Fitz is saying that Libby "thought" (rightly or wrongly) Plame was classified and so actual status does not matter. I don't understand what Fitz would be claiming the motive is otherwise besides releasing classified info. But then Fitz never charges anyone with releasing classified info. How is Fitz going to show Libby thought she was classified? And the 'throwing dirt in the umpire's eyes does not seem to be a good reason not to have an answer.
Even if her job was classified, should it have been? It is easy to classify every person and every job to be safe. One job I had, they discouraged us from putting 'classifed' on every document for fear it would render the status meaningless for all documents.
I think even Harlow didn't think she was classified when he confirmed her employment to Novak.
I assumed when Dow Jones sought the redacted pp in the Miller opinion (remember Tatel's opinion about balancing calssified stuff?) we'd see some evidence that she her employment was classified(and what a curious circumlocution that is). But, aparently nothing like that was in the redacted pp.
And, yes, even if she were--for which we've seen no evidence--she might have been in error; Fitz has indicated she no longer is; and as I said earlier he never claimed Libby knew she was classified.
He doesn't have to. He has to show that Libby knew Plame's status "for a fact," because Libby called the CIA and asked - and then that Libby consciously withheld from investigators that he knew Plame's status "for a fact," having called the CIA and inquired.
Exactly what her status is isn't pertinent to the question of whether or not his answers to investigators were deliberate misdirection.
Libby's attorney's are first going to establish whether Plame was or was not subject to the Intelligence Identities Protection Act.
When they discover that she was not, Fitzgerald's entire case will fall apart, since there was no basis for his ongoing investigation.
It's like accusing someone of robbing a 7-11 when no such crime occurred, yet continuing an investigation into that non-robbery regardless of the facts.
Eventually one alleged "suspect" asserts he stopped at a 7-11 near his home during the non-crime. Later that same "suspect" says he stopped at the very 7-11 where no crime was actually committed.
He's obviously confused about which 7-11 he visited, so the prosecutor decides to charge him with perjury for those two conflicting statements.