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Fitzgerald: Was Any Damage Done By the Valerie Wilson Leak? I Don’t Know.
NRO ^ | Byron York

Posted on 02/02/2006 11:32:04 AM PST by hipaatwo

The CIA leak prosecutor refuses to turn over evidence to Lewis Libby.

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.


TOPICS: Crime/Corruption; Government; News/Current Events
KEYWORDS: byronyork; cia; cialeak; cya; fishingexpedition; gotnothing; nationalsecurity; plame; plamegate; rockefeller; showtrial; smearcampaign; witchhunt; yellowcake
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To: hipaatwo
According to all the MSM outlets, Plame is still an outed CIA agent.
81 posted on 02/03/2006 5:11:26 AM PST by satchmodog9 (Most people stand on the tracks and never even hear the train coming)
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To: Wolfstar
As so many others have said, if there was no crime, then there can be no perjury. Perjury has to be material to the underlying crime.

False testimony can be a crime of its own right, independent from finding, even independent from charging an underlying crime.

Absence of an illegal leak will not excuse false testimony.

82 posted on 02/03/2006 5:37:11 AM PST by Cboldt
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To: fedupjohn
A total disingenuous statement. Perjury to a Grand Jury has to be material to a crime. No crime ... No perjury.

Lying about a crime, the accusation against President William Jefferson Clinton, has itself been a crime since the time of Hammurabi.

Then, it was punishable by death. Today, perjury is punishable in federal courts by a fine and up to five years of prison for each count.

Then and now, the theory has been essentially the same: If people are allowed to lie during the investigation of a crime, the crime cannot be proven. It may go unpunished or an innocent person might be wrongly punished.

That is why perjury has never required proof of an underlying crime. Without access to the truth, there may be no way to show the underlying crime. (A perjury indictment unaccompanied by a charge of an underlying crime remains, nonetheless, controversial because critics sometimes see it as the product of a failed probe.)

Perjury, the Supreme Court has said, is "an obvious and flagrant affront to the basic concepts" of justice.

http://www.hypocritae.com/?ART=179
Fred Barbash | Washington Post | August 16, 1998


83 posted on 02/03/2006 5:54:32 AM PST by Cboldt
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To: CharlesWayneCT
Well, the next step would be for Libby to go to the judge to compel the release -- the judge would then decide.

He did. Motions to compel discovery were filed on Jan 23 & Jan 26, I think. A hearing is scheduled for today.

84 posted on 02/03/2006 5:59:42 AM PST by Cboldt
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To: pnut22

I think these letters give you the answer to that question. Libby wasn't charged with those things because the prosecuter never collected information to determine whether any of those things were true.

Which is why we are discussing it here, since last october his "speech" made it sound like he had determined truth, and that WAS what he was hired to do. So why didn't he do his job, and why in October did he say her identity was classified, if now he admits that he never did any investigation to determine if her name was classified?


85 posted on 02/03/2006 5:59:45 AM PST by CharlesWayneCT
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To: Wolfstar

Yesterday I watched Fitzgerald's October press conference again. He is strictly defending his call to prosecute Libby for lying, using all the rhetoric that we would use if, say, Hillary was caught lying to a GJ.

He totally side-stepped mentioning that the lies have to be pertinent to the investigation. A witness can lie about the weather or the schoolwork of his children all he wants, for example.

He declared as fact that Ms Plame was in a "classified" position at CIA. The statute that would make Libby's alleged lies pertinent does not focus on "classified" employees, but "covert" employees.

I am sure that Ms Plame retained her "classified" status so that she could retire with higher benefits. I will never believe that a covert agent would
a) use her cover company name to contribute to a Presidential Candidate's campaign, or
b) allow her husband to write an incendiary article for the New York Times.


86 posted on 02/03/2006 6:03:27 AM PST by maica (We are fighting the War for the Free World. Democrats and the media are not on our side.)
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To: Cboldt
That is why perjury has never required proof of an underlying crime.

I agree with your statement. My contention is that the questionable statement has to be material to the investigation.
He Fitzgerald was charged with finding out who leaked a covert agents name, why because leaking a "covert" agents name is a crime.
His first step is to find out if Plame was a covered "covert" agent, if she was not, investigation is stopped, Period.
That is all I'm saying.

87 posted on 02/03/2006 6:09:51 AM PST by fedupjohn (If we try to fight the war on terror with eyes shut + ears packed with wax, innocent people will die)
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To: fedupjohn
His first step is to find out if Plame was a covered "covert" agent ...

His letters to defense counsel indicate that this was not his first step.

In fact, from the top down (President, CIA, DoJ), the "official" status of Plame remains uncertain.

Strikes me as weird too, FWIW. If there is a case for malicious prosecution, Miller could have brought the charge too - she was in jail for refusing to testify.

88 posted on 02/03/2006 6:15:44 AM PST by Cboldt
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To: jonrick46

Thanks, as Rush says - You can't make this stuff up.


89 posted on 02/03/2006 6:16:41 AM PST by dblshot
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To: oldbrowser
Okay, so who is the judge in this case?

Reggie Walton.

90 posted on 02/03/2006 6:17:17 AM PST by Cboldt
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To: Cboldt
Strikes me as weird too

Couldn't agree more. I guess we'll just have to stay tuned and watch as this unfolds.

91 posted on 02/03/2006 6:19:23 AM PST by fedupjohn (If we try to fight the war on terror with eyes shut + ears packed with wax, innocent people will die)
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To: woofie
How did you determine Libby lied?

It hasn't been adjudicated, but one can read the details of the charge in the indictment.

Text of Indictment in HTML

A radical "snipping" of the indictment, aiming to distill it to is essential points ...
http://www.freerepublic.com/focus/f-news/1569428/posts?page=70#70

92 posted on 02/03/2006 6:21:15 AM PST by Cboldt
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To: okie01
It will be a D.C. jury. Libby is a Republican.

It will be a federal grand jury. As such, it will be pulling from the more conservative suburbs as well.

93 posted on 02/03/2006 6:26:03 AM PST by old and tired (Run Swannie, run!)
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To: fedupjohn
I guess we'll just have to stay tuned and watch as this unfolds.

It's going to take awhile, I think. Regardless of the ruling on defens motions for deiscovery, either side is apt to appeal.

I've been looking for cites to cases where a perjury conviction stood, with "no underlying crime." The runaway bride story (Wilbanks) came to mind. Running away isn't criminal, so how could lying about it be?

And in Clinton's civil case with Jones, where Jones sought to introduce Lewinski. AN affair with Lewinski isn't a crime, so how can lying about it be?

The government need not prove the legitimacy of the grand jury's investigation which led to the testimony, only the pertinence of the particular testimony to the grand jury's investigation. United States v. Regan, 103 F.3d 1072 (2d Cir. 1997)

http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01748.htm


94 posted on 02/03/2006 6:41:39 AM PST by Cboldt
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Here's another one -

Furthermore, testimony may be material even if it relates to events as to which the statute of limitations has run, since the grand jury may have legitimate reasons to inquire about such events aside from an expectation of returning an indictment charging those events as crimes. United States v. Chen, 933 F.2d 793, 797 (9th Cir. 1991); United States v. Nazzaro, 889 F.2d 1158, 1165-66 (1st Cir. 1989).

http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01748.htm


95 posted on 02/03/2006 6:51:03 AM PST by Cboldt
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To: Owen
They will focus strictly on whether or not all statements by Libby to the GJ were accurate. Why the investigation is being conducted will be of no interest to a jury.

Is there not a distinction between whether his statements to the GJ were "accurate" and whether or not he intentionally mislead the GJ?

96 posted on 02/03/2006 7:36:48 AM PST by jennyjenny
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To: old and tired
It will be a federal grand jury. As such, it will be pulling from the more conservative suburbs as well.

The grand jury has already issued the indictment.

Will the trial jury pool be drawn from the suburbs, as well?

It's not that suburban D.C. could be construed as "conservative", any way. But it might be a little less racist.

97 posted on 02/03/2006 8:10:13 AM PST by okie01 (The Mainstream Media: IGNORANCE ON PARADE)
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To: jennyjenny

Not really. Though they do have to be shown to be knowingly inaccurate.

The Fitzpatrick legal team did not just wing it. They have crafted a case that they know will be hard to undo. The defense will try to undo it, but that won't be a trivial matter and it won't hinge on some revelation document in Fitzpatrick's possession. His team went through all those documents. They know what is in them and they know they will not interest a jury.

They may interest a judge. A judge might be willing to make a call that there was no underlying crime to investigate, but judges are also reluctant to undo the work of a GJ.

Bottom line: the current flurry of stories will be of zero interest to a jury if and when the case gets to them. At that point there will be a different defense. Any attempt by the defense to tell the jury there was no crime will be quashed by the judge of the trial, saying that the jury is not to consider any such thing and that the case is about a very strict and narrow matter.


98 posted on 02/03/2006 8:11:09 AM PST by Owen
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To: okie01
One suspects that the worst thing that could happen to Fitzgerald's career would be for this case to go to trial.

Unless the charges are dropped, I think it will go to trial. Libby is a smart lawyer who ha superb criminal lawyers representing him. They seem to be attacking Fitzgerald's case very aggressively.

99 posted on 02/03/2006 8:11:24 AM PST by Wolfstar (Someday when we meet up yonder, we'll stroll hand in hand again, in a land that knows no parting...)
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To: McGavin999
He ought to be brought up on charges for defrauding the American people out of $2 million.

Hi, McGavin. I agree with you. The only good thing about all this is the fact that Libby and his lawyers appear to be putting up one heck of a fight.

100 posted on 02/03/2006 8:12:46 AM PST by Wolfstar (Someday when we meet up yonder, we'll stroll hand in hand again, in a land that knows no parting...)
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