Fitzgerald leaves some key questions unanswered

Let’s say you’re a federal prosecutor.

You’re investigating officials in the Bush White House, trying to find out whether they violated the Intelligence Identities Protection Act or the Espionage Act when they told reporters that Valerie Wilson, wife of the ardent Bush critic Joseph Wilson, worked for the CIA.

Violations of those laws would be a very serious matter indeed. And just to make your investigation a high-pressure affair, you’re dealing with some very prominent figures, including Lewis Libby, the vice president’s chief of staff, and Karl Rove, the president’s top political adviser.

Then you run into a problem. You look and look, but you can’t find enough evidence to charge either man — or anyone else — with breaking the two big national-security laws.

But you believe you have a good case that Libby lied to your grand jury. So after more than two years of probing, you charge him with perjury, obstruction of justice and making false statements.

So here’s the question: In preparation for trial, Libby’s defense lawyers want you to give them evidence that when you began the investigation you had a good reason to believe that a crime had been committed — that is, that someone had violated the intelligence identities law or the Espionage Act. Do you give it to them?

First, they want you to turn over documents showing that Valerie Wilson was a covert agent for the CIA at the time she was outed in Robert Novak’s column on July 14, 2003.

Then they want the documents showing that Mrs. Wilson had been covert at some point in the five years before she was mentioned in the Novak column — a key requirement for prosecution under the intelligence identities law.

And then they want documents outlining the damage Mrs. Wilson’s unmasking has done to national security.

At least to an outsider, those might seem like reasonable requests. After all, that’s why you started your investigation, wasn’t it?

The following is from recent correspondence between CIA leak prosecutor Patrick Fitzgerald and the Libby defense team:

On Dec. 14, 2005, Libby’s lawyers 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.”

To which Fitzgerald replied, on Jan. 9, “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.’”

Then the Libby lawyers asked for “any assessment done of the damage (if any) caused by the disclosure of Valerie Wilson’s status as a CIA employee.”

To which Fitzgerald replied, also on Jan. 9, “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.” And by the way, Fitzgerald added, we wouldn’t view that information as relevant to your case, so you can forget about getting it.

About the issue of whether Mrs. Wilson had been undercover in the five years before the Novak article, Fitzgerald said, in effect, we might have some proof of that — or we might not. You don’t need to know.

In each instance, Fitzgerald told the Libby lawyers that their requests for information on any underlying crime were irrelevant because Libby is charged with lying under oath, not with violating the Intelligence Identities Protection Act or the Espionage Act.

Well, yes, but that’s not the whole story, say Libby’s attorneys. Just look, for example, at the question of damage to national security.

“Potential harm to national security was a focus of the government’s investigation,” Libby’s team wrote in a Jan. 31 brief. “In fact, the indictment alleges that disclosure of the fact that individuals such as Ms. Wilson ‘were employed by the CIA had the potential to damage the national security.’”

The Libby team went on to point out that in his news conference last October, Fitzgerald said the leak of Mrs. Wilson’s name was not only harmful, that “the damage wasn’t to one person. It wasn’t just Valerie Wilson. It was done to all of us.”

But now, Fitzgerald maintains that the most fundamental information in the case — was an underlying crime actually committed? — is not important.

Maybe he’s on solid legal grounds. Maybe not. We’ll find out later this month, when the issue is argued in court.

But for those of us outside the courtroom, for those of us who have been told for years that the leak of Valerie Wilson’s name was a very serious crime, wouldn’t it be a good thing to know whether or not that was true?

York is a White House correspondent for National Review. His column appears in The Hill each week. E-mail: byork@thehill.com

Judge Tatel, in the appeal Miller and Cooper took as they asserted reporter/source privilege, wrote the following:

Addressing deficiencies of proof regarding the Intelligence Identities Protection Act, the special counsel refers to Plame as "a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years" -- representations I trust the special counsel would not make without support. (8/27/04 Aff. at 28 n.15.)
http://pacer.cadc.uscourts.gov/docs/common/opinions/200502/04-3138a.pdf
Freerepublic/.../f-news/1571203/posts < Unredacted portion

Judge Tatel, in the same opinion, also wrote this:

What's more, if Libby mentioned Plame's covert status in either [page 34] conversation, charges under the Intelligence Identities Protection Act, 50 U.S.C. § 421, currently off the table for lack of evidence (see 8/27/04 Aff. at 28 & n.15), might become viable. Thus, because Miller may provide key corroboration or contradiction of Libby's claims -- evidence obviously available from no other source -- the special counsel has made a compelling showing that the subpoenas directed at Miller are vital to an accurate assessment of Libby's conduct.

Both comments cite a Fitzgerald Affidavit of August 27, 2004. Portions of that affidavit are available, including "n.15" on page 28. Any transcription errors below are mine.

81. The testimony of reporter Miller is central to the resolution of that part of the criminal investigation concerning Libby. Her testimony is essential to determining whether Libby is guilty of crimes, including perjury, false statements and the improper disclosure of national defense information.¹⁵ The grand jury needs to know when Libby advised Miller about Wilson's wife -- during their private meeting outside the White House on July 8 or during the three minute telephone call on July 12 -- and whether Libby qualified his disclosure to Miller by stating that he had heard it only from a reporter and did not know if it were true. Miller's testimony is essential to determine whether Libby fabricated his claim that he only told reporters what he claimed he had heard from Russert without a belief that the information he was passing on was either true or classified.
---
¹⁵ If Libby knowingly disclosed information about Plame's status with the CIA, Libby would appear to have violated Title 18, United States Code, Section 793 if the information is considered "information respecting national defense." In order to establish a violation of Title 50, United States Code 421, it would be necessary to establish that Libby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who has carried out covert work overseas within the last 5 years. To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work. [emphasis added]
http://online.wsj.com/.../libby-fitzgerald-affidavit-20060203.pdf

Footnote 15 is what Tatel relies on when he states "special counsel refers to Plame as 'a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years' -- representations I trust the special counsel would not make without support."

Did Fitzgerald represent that Plame was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years?

At footnote 15, Fitzgerald doesn't refer to Plame as "a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years." As an aside, I found no such reference in any unredacted portion of Fitzgerald's August 27, 2004 affidavit.

Footnote 15 (reproduced in its entirety above) refers to the "outing the covert agent" statute, 50 USC 421. The reason Fitzgerald gives in footnote 15 for likely failure to find a violation is that there is no evidence Libby would meet the "knowing disclosure" aspect in the statute. In order to find a violation, Fitzgerald would have to prove "[Libby knew] that the information disclosed so identifies such covert agent," and that "[Libby knew] that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States.

In a sort of "reverse bootstrap," Judge Tatel is construing Fitzgerald's reference to 50 USC 421 and assertion of "absence of evidence that Libby knew," as affirming the covert status of Plame. Tatel never really got to the question "was the United States taking affirmative measures to conceal the intelligence relationship of a covert agent who has carried out covert work overseas within the last 5 years," he jumped to that conclusion.

It's likely that NOBODY knew the United States was taking affirmative measures to conceal the intelligence relationship of Plame, and/or that Plame had carried out covert work overseas within the last 5 years. Why is that? Because the United States WASN'T taking affirmative measures to conceal the intelligence relationship of Plame, and/or that Plame HADN'T carried out covert work overseas within the last 5 years.

Good analysis, but reading further down starting at page 80 of Court Opinion

What’s more, because the charges contemplated here relate to false denials of responsibility for Plame’s exposure, prosecuting perjury or false statements would be tantamount to punishing the leak. Thus, given the compelling showing of need and exhaustion, plus the sharply tilted balance between harm and news value, the special counsel may overcome the reporters’ qualified privilege, even if his only purpose—at least at this stage of his investigation—is to shore up perjury charges against leading suspects such as Libby

******** [SNIP]

Were the leak at issue in this case less harmful to national security or more vital to public debate, or had the special counsel failed to demonstrate the grand jury’s need for the reporters’ evidence, I might have supported the motion to quash. Because identifying appellants’ sources instead appears essential to remedying a serious breach of public trust, I join in affirming the district court’s orders compelling their testimony.

This part of the first passage should at least give Libby's attorneys access to her job status "tantamount to punishing the leak" . And if Mr. Fitzgerald presented to the court that there was harm to national security, and it appears that was the partial basis for at least one Justice's ruling for compelling testimony, how can he now claim that it not relevant to the perjury charge?

This part of the first passage should at least give Libby's attorneys access to her job status "tantamount to punishing the leak"

The full context of the first paragraph helps, but still the conclusion is that Miller and Cooper's testimony should be compelled even if the ONLY PURPOSE is to shore up perjury charges.

Finally, while it is true that on the current record the special counsel's strongest charges are for perjury and false statements rather than security-related crimes, that fact does not alter the privilege analysis. Insofar as false testimony may have impaired the special counsel's identification of culprits, perjury in this context is itself a crime with national security implications. What's more, because the charges contemplated here relate to false denials of responsibility for Plame's exposure, prosecuting perjury or false statements would be [page 39] tantamount to punishing the leak. Thus, given the compelling showing of need and exhaustion, plus the sharply tilted balance between harm and news value, the special counsel may overcome the reporters' qualified privilege, even if his only purpose -- at least at this stage of his investigation -- is to shore up perjury charges against leading suspects such as Libby.

As post 106 points out, it appears that not only was Fitzgerald too trusting of the CIA, Judge Tatel fell for the same representation - that the "leak" was at least somewhat harmful to national security. Indeed, the unredacted opinion carries the "leak was harmful" meme fairly strongly.

It wasn't until after this opinion was issued that 36 news organizations filed a brief arguing for a rehearing, en banc, arguing that testimony should not be compelled because Plame was not covert. That argument has not been addressed by a court.

And if Mr. Fitzgerald presented to the court that there was harm to national security, and it appears that was the partial basis for at least one Justice's ruling for compelling testimony, how can he now claim that it not relevant to the perjury charge?

It's relevant to the extent that it legitimizes an investigation into whodunnit. There would be deep ramifications for "the system" to reject false statements charges based on a realization that the underlying charge fails for other reasons.

In practice, such a rule would open the door for ALL perjurers to require the underlying case to be tried FIRST, to find out if the underlying charge fails for other reasons.

The root problem here is the original false report of wrong, which emanated from the CIA. Sort of like the Wilbanks case, the initial "false report" being kidnapping - but once the charge is out there, those who accept it as true, and go on to investigate further, HAVE to count on truthful testimony.

And I can see how Fitz (and quite a few others) might have been duped by the CIA. There is a systematic weakness, a reasonable set of assumptions that fed this comedy of serious errors. Think about why the CIA would refer a leak case. What could (and should) they know, and what could they not know? Why would another government bureaucracy bother to investigate the "referrer should know -this- part" of a criminal violation?

There are a few elements to the outing the agent crime, some of which the CIA would easily know, and others that the CIA would not easily know. The DoJ went to work on the parts that the CIA would NOT easily know. Who leaked it, and did that leaker "know the status of the agent"?

The DoJ made the mistake of thinking the CIA would not refer a case where the agent wasn't covert - that the CIA would not make what amounts to a "false report." But guess what? At that level, making false reports is not illegal.

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