Fitzgerald leaves some key questions unanswered

"Them is legal weasel words, of course he does not have or requested "all". But does he have any?"

I've also wondered about the significance of the word "all" in that sentence. The defense was presumably asking for "all" pertinent documents in Fitz's possession, not all that might theoretically exist in various government archives. So Fitz's reply is both peculiar and ambiguous. It is peculiar in that it suggests he never sought documents pertaining to the central purpose of his investigation, i.e., documents addressing Plame's status at the CIA. It would be utterly incomprehensible for him not to have resolved this issue early on in the investigation. And then, the use of the word "all" does suggest he is dodging, playing on that word, as if to say that he cannot comply with the defense's request because he does not have "all" the documents that might theoretically pertain to the matter. But, if he was doing his job properly, he must have SOME of those documents.

LOL!

Good one. ;o)

Thanks for the ping!

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’t it be a good thing to know whether or not that was true?

Nah....it doesn't matter!! What matters is WHAT the MSM says and in this case VALERIE PLAME was a COVERT agent and her name was LEAKED and caused untold damage to our nation. Whether or NOT these are FACTS is irrelevant.

This should come as NO SURPRISE as the MSM LABLES "Intercepts from KNOWN Al Qaeda members OR their AGENTS to/from someone in another COUNTRY" as "DOMESTIC EAVESDROPPING!!"

All you ever want is a flame war! LOL

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.

Excellent post. Let's hope that Libby's lawyers are as acute as you are.

The only secret was that Joe was the Niger man and I'm sure he used "his Niger credentials" to get on the Kerry campaign. When it got around and the Dems knew it was going to come out, Joe published his article. Valerie has just been the scape goat in all this. The whole this was a crock and a setup.

Joe was last seen on a bicycle on his way to Arby's for lunch.

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.

Byron York has almost exactly the same analysis as at post 106, here -> http://www.nationalreview.com/york/york200602060919.asp.

Honest, I just now found his article and didn't take the idea from his article. Granted, I'm a bit slower on the draw - he had the analysis covered a week before I did.