Fitzgerald: Was Any Damage Done By the Valerie Wilson Leak? I Don’t Know.

Watchers of the CIA leak investigation are buzzing over a series of letters between prosecutor Patrick Fitzgerald and lawyers for former Cheney chief of staff Lewis "Scooter" Libby. In the letters, contained in motions filed recently by Libby's defense team and released by the court, Fitzgerald steadfastly refused to reveal whether he has any evidence that Bush administration officials violated the Intelligence Identities Protection Act, the Espionage Act, or any other law by revealing the identity of CIA employee Valerie Wilson.

Libby is charged with perjury and obstruction of justice in the leak investigation, but Fitzgerald has so far not alleged that anyone acted illegally by revealing Wilson's identity. In the letters, which give outsiders a glimpse of the intense behind-the-scenes maneuvering going on in the case, Libby's lawyers asked Fitzgerald to turn over evidence that might point toward such an underlying crime. Fitzgerald refused.

In a December 14, 2005, letter to Fitzgerald, Libby's lawyers asked for "Any assessment done of the damage (if any) caused by the disclosure of Valerie Wilson's status as a CIA employee." In the same letter, Libby's team asked for "All documents, regardless of when created, relating to whether Valerie Wilson's status as a CIA employee, or any aspect of that status, was classified at any time between May 6, 2003 and July 14, 2003." (Those dates mark the period in which some Bush-administration officials discussed Wilson with reporters.)

Fitzgerald declined both requests. "A formal assessment has not been done of the damage caused by the disclosure of Valerie Wilson's status as a CIA employee, and thus we possess no such document," he wrote in a January 9, 2006, response. In any event, Fitzgerald argued, "we would not view an assessment of the damaged caused by the disclosure as relevant to the issue of whether or not Mr. Libby intentionally lied when he made the statements and gave the grand jury testimony that the grand jury alleged was false."

On the question of Wilson's status, Fitzgerald wrote, "We have neither sought, much less obtained, 'all documents, regardless of when created, relating to whether Valerie Wilson's status as a CIA employee, or any aspect of that status, was classified at any time between May 6, 2003 and July 14, 2003.'" Although Fitzgerald said that "if we locate" such documents, he might turn them over, he argued that he has no responsibility to do so, because they are not relevant to the perjury and obstruction of justice prosecution.

In a later letter, dated January 23, 2006, Fitzgerald went further, refusing to provide information about whether Wilson was an undercover agent during the last five years. Referring to a 1963 Supreme Court decision in Brady v. Maryland, which requires prosecutors to turn over evidence that might point toward the defendant's innocence, Fitzgerald wrote, "We do not agree that if there were any documents indicating that Ms. Wilson did not act in an undercover capacity or did not act covertly in the five years prior to July 2003 (which we neither confirm nor deny) that any such documents would constitute Brady material in a case where Mr. Libby is not charged with a violation of statutes prohibiting the disclosure of classified information."

Fitzgerald's January 23 letter also referred to a conflict between the two sides over the actions of Valerie Wilson's husband, former ambassador Joseph Wilson. "You demand access to all documents referencing Mr. Wilson's 2002 trip to Iraq," Fitzgerald wrote to Libby's lawyers in what is apparently a mistaken reference to Joseph Wilson's 2002 trip to Niger that became the focus of contention after his wife's CIA employment was made public. Prosecutors will not turn it over, Fitzgerald wrote. "The relevance of Mr. Wilson's 2002 trip is the fact that it occurred and that it became a subject of discussion in spring 2003. What took place during that trip is not relevant to the issue of whether Mr. Libby lied about his spring 2003 conversations with various reporters and government officials about Mr. Wilson's wife's employment at the Central Intelligence Agency."

Still, Fitzgerald wrote that his office will turn over "all documents in our possession reflecting conversations involving defendant Libby about Wilson's trip, or meetings Mr. Libby attended during which Mr. Wilson's trip was discussed." Fitzgerald also wrote that he does not expect to call Wilson to testify at the Libby trial.

So far, there has been little attention paid to Fitzgerald's statements on the possibility of underlying crimes in the CIA leak case. Instead, much attention has focused on a paragraph at the end of Fitzgerald's January 23 letter in which Fitzgerald wrote that "We have learned that not all e-mail of the Office of Vice President and the Executive Office of President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system." That statement has fueled much speculation on left-wing blogs that some sort of cover-up has taken place and that the White House has destroyed evidence in the leak investigation. In all the documents made public so far, however, Fitzgerald has not suggested that that has happened.

"Fitzgerald wrote that "We have learned that not all e-mail of the Office of Vice President and the Executive Office of President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system." That statement has fueled much speculation on left-wing blogs that some sort of cover-up has taken place and that the White House has destroyed evidence in the leak investigation. In all the documents made public so far, however, Fitzgerald has not suggested that that has happened."

Tonight on Hardball, Chris Matthews not only accuses the Bush White House of destroying emails, he says, "they have learned the lesson of Watergate....destroy the evidence".

True to form for Matthews, he harkens back to Nixon days, totally ignoring Bill Clinton. I post the following to remind everyone...a walk over Clinton's Bridge, back to the 1990s. To real, not wished for, "missing emails".

(and there's plenty more you can find by googling "Beth Nolan White House emails") _______________________________________________________

http://www.realclearpolitics.com/Commentary/com-7_13_00.html

"July 13, 2000

The Case of the Missing Emails
By Tom Bevan

"We're trying to do an incredibly complicated task. We're doing our best to preserve the integrity of the material." -White House spokesman Jake Siewert responding to why the Clinton Administration has - after more than 20 weeks - been unable to produce any of the "missing" emails ordered by the U.S. District Court.

With all due respect to Mr. Siewert, we're sure the task of recovering lost emails is difficult - especially when your boss wants them to stay lost - but to suggest that the White House is somehow concerned about the "integrity" of the information contained in the emails is laughable. Should any emails ever be recovered, they will have been vetted by Clinton operatives to insure they contain no incriminating evidence against the President or the Vice President.

Nevertheless, U.S. District Judge Royce Lamberth will be presiding over an evidentiary hearing today on the email matter - a hearing he ordered earlier this week when the Clinton administration failed to produce any of the missing after more than 5 months. Lamberth's frustration with the administration's stonewalling was evident in his order on Monday:

"Therefore, had the EOP (Executive Office of the President) begun copying tapes, not only would some data now be available for searching, but also the EOP could have tested its capability to complete the restoration process, modified its plan as necessary, and developed an estimate for when the entire process could be completed. The EOP did not do this, however. Nor has it provided the court with any explanation of why it did not do so. Instead, after twenty weeks, the EOP has not made one concrete step towards producing any of the non-ARMS e-mail, and can not give the court any estimate of when it might do so."

Clinton's utter disregard for the law (the emails in question are under supoena by a federal grand jury and 3 Congressional committees) and the media's unwillingness to force the President and Vice President to be held accountable for the stonewalling, half truths and lies that have become the hallmark of their administration is disgraceful.

Regardless of the outcome of today's hearing, don't expect the missing emails to be popping up any time soon. With Clinton busy shaping his legacy at Camp David, Gore gearing up for the Democratic convention and the media looking the other way, there is absolutely no chance of the White House producing anything until after the election. But then, at least, it will be comforting to know that the information provided - unlike the administration - will have integrity."

Tom Bevan writes for RealClearPolitics "

Is that a "yes, it's okay to lie to investigators in this case?"

Firing Fitzgerald would be additional remedy, but should Libby get off?

Darn. Thought I had reposted before I clicked on another link.

Anyways, here's the gist:

But enough with parallels - with regard to the Libby case, is it your position that lying to the investigators (not only by Libby, but by ALL of those questioned) is okay?

Sorry, I realized that I didn't directly answer your question.

It is not my position that lying to the investigators is morally O.K. That is a different question from "illegal," and a different question as to whether Fitzgerald should be held accountable for not making this fundemental determination. Note that when I posted "He should be invited in to explain himself to the AG and the President. If he can't explain why he didn't carry out the first elements of the investigation, he should be fired," I specifically did not discuss the dispensation of Libby's case.

If a Fitzgerald replacement conducts the review and finds that Plames identity plausibly fits the criteria under the law, then proceed. If it does not plausibly fit, then nothing Libby said was relevant one way or another, as there was no investigation.

I'm trying to avoid putting words in your mouth, but I take that as "if Plame is not covert, then there should be no legal penalty for lying to investigators."

The main policy in this case is that courts very much do not want people to tell deliberate lies on the witness stand and, in general, take the view that defects in the steps that may bring witnesses to the stand are not adequate reason for tolerating the lies and foregoing punishment. A number of Supreme Court decisions reflect this general policy.
Thus, in Dennis v. United States, 384 U.S. 855 (1966), convictions for filing false non-Communist affidavits were sustained, the Court holding that it did not matter whether the underlying statute that required them violated the First Amendment. Id. at 867; see also Bryson v. United States, 396 U.S. 64, 72 (1969). Similarly, in United States v. Mandujano, 425 U.S. 564, 576, 584 (1976), and United States v. Wong, 431 U.S. 174, 176-78 (1977), the respective failures to give a grand jury witness a Miranda warning (in one case) or a warning as to the privilege against self-incrimination (in the other) were held not to excuse the subsequent perjury of the witness. Other cases are to the same effect.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=1st&navby=case&no=022276

The process you propose, that an investigator has to show all the other elements of the offense before making an accusation of perjury, would create an interesting game of "guts" between witnesses and investigators. A game where lying becomes a more viable option to witnesses, in all cases.

It is not my position that lying to the investigators is morally O.K. That is a different question from "illegal,"

Oh golly, I just assumed our discussion was on the legality, and not on the morality. "Okay" meaning that tehre would be no legal consequence, "lie and get away with it" sort of thing.

Yes, and what about the jail time of Miller, the forced testimony and all the legal costs incurred there? Libby's remedy being "case dismissed," what about Miller?

Sorry. Thought you were referring to having "been charged" in the lawsuit. Obviously, he wasn't criminally charged, he was sued under legal codes for his unlawful behavior.

Yeah. That's the underlying cause of action. Jones lost the case, and it was settled while the appeal was pending.

Clinton was found in contempt of court for his false and misleading testimony, but it took alot of public pressure tocause that to come about.

Clinton Impeahment <- Good summary of how events unfolded

Jones v. Clinton, 36 F.Supp.2d. 1118 (E.D.Ark. 12 April 1999) (Clinton found in civil contempt of court for violation of discovery orders.)

Jones v. Clinton, 57 F.Supp.2d 719 (E.D.Ark. 29 Jul 1999) (Clinton ordered to reimburse Jones' attorneys for $89,484 for legal fees and expenses.)

Links to Legal Proceedings Against Bill Clinton

The case that went to the Supreme Court was on the question of whether or not a President has some sort of immunity (either total or temporary) from being a defendant in a civil trial.

Her complaint contains four counts. The first charges that petitioner, acting under color of state law, deprived her of rights protected by the Constitution, in violation of Rev. Stat. §1979, 42 U.S.C. § 1983. The second charges that petitioner andFerguson engaged in a conspiracy to violate her federal rights, also actionable under federal law. See Rev. Stat. §1980, 42 U.S.C. § 1985. The third is a state common law claim for intentional infliction of emotional distress, grounded primarily on the incident at the hotel. The fourth count, also based on state law, is for defamation, embracing both the comments allegedly made to the press by Ferguson and the statements of petitioner's agents. Inasmuch as the legal sufficiency of the claims has not yet been challenged, we assume, without deciding, that each of the four counts states a cause of action as a matter of law. With the exception of the last charge, which arguably may involve conduct within the outer perimeter of the President's official responsibilities, it is perfectly clear that the alleged misconduct of petitioner was unrelated to any of his official duties as President of the United States and, indeed, occurred before he was elected to that office.
Clinton v. Jones, 520 US 681 (1997)

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