Fitzgerald Refuses to Show Evidence That Valerie Wilson Was Classified (NO Fitzmas For The Left)

National Review Online ^ | February 23, 2006 | Byron York

[PJ-Comix]

Tomorrow CIA leak prosecutor Patrick Fitzgerald and indicted former Cheney chief of staff Lewis Libby will meet in a Washington courtroom to fight over what evidence will be at the center of Libby's trial on perjury, obstruction, and false statements charges. In the latest exchange of court motions between the two sides, Libby's defense team is repeating its request for evidence concerning perhaps the two most fundamental questions in CIA leak investigation: Was Valerie Wilson a secret CIA officer when her name appeared in Robert Novak's famous July 14, 2003, column, and what damage did the exposure of her identity do to national security? Fitzgerald has so far refused to provide any evidence touching on either question, at times shifting his reasoning as Libby's lawyers pressed their case.

During his October 28, 2005 news conference announcing the Libby indictment, Fitzgerald said flatly, "I will confirm that [Wilson's] association with the CIA was classified" at the time covered by the investigation. The indictment itself says that "Valerie Wilson was employed by the CIA and her employment status was classified."

Last December, Libby's lawyers asked Fitzgerald to provide "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" in the time period before the Novak column was published. Fitzgerald refused, saying that "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'" during that period.

Later, Libby's team repeated the request. Fitzgerald again refused, saying, in effect, that the information was none of Libby's business:

The defense also seeks all documents "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." Mr. Libby predicates his request on a single reference in the indictment to the fact that Ms. Wilson’s employment status was classified during the relevant time. The defendant overlooks the simple fact that Ms. Wilson’s employment status was either classified or it was not. If the government had any documents stating that Ms. Wilson’s employment status was not classified during the relevant time — and we do not — we would produce them though not strictly required to under the doctrine of Brady v. Maryland. The defense is not entitled to every document mentioning a fact merely because that fact is mentioned in the indictment.

It would perhaps be an understatement to say that Fitzgerald's answer left the Libby team unsatisfied. Now, in a motion filed on Tuesday, Libby is trying one more time:

The government argues that "Ms. Wilson's employment status was either classified or it was not," and states that it if it possessed any documents stating her employment was not classified, it would produce such documents. What Mr. Libby seeks, however, is all documents supporting the indictment’s allegation that her employment was classified, as well as those showing it was not. To date, the defense has not received a single document showing that Ms. Wilson’s employment was classified information. Further, the government has told us that it "neither sought, much less obtained," from the CIA the documents we requested with respect to Ms. Wilson's employment status. This assertion calls into question how the government can represent to the Court that no [relevant] material on this issue exists. [emphasis in the original]

In addition, Libby argued, Fitzgerald's refusal to provide information confirming Wilson's status touches on fundamental questions of fairness:

By refusing to provide any documents confirming the allegation in the indictment that Ms. Wilson’s employment status was classified during the relevant time period, the government has in effect demanded that the defense concede that this allegation is correct. Such a demand is flatly inconsistent with the basic principles of our criminal justice system. The defense is entitled to investigate this allegation and determine whether any factual support for it exists.

Fitzgerald is also continuing his refusal to provide the Libby defense team with any assessment of the damage done to national security by the exposure of Wilson's identity. Fitzgerald at first refused because, he said, no "formal assessment" of the damage had been done. Later, he argued that he had never claimed any damage had been done:

The defendant also argues that he is entitled to information about any assessment of the damage caused by the disclosure of Ms. Wilson’s employment because "potential harm to national security was a focus of the government’s investigation." This claim is illogical. First, there were many things that were investigated that are not reflected in the charges in the indictment. The actual — as opposed to potential — damage caused by the outing of Ms. Wilson is not alleged in the indictment, nor was it a focus of the grand jury investigation. The indictment alleges only that the outing of CIA employees could cause damage. The actual damage resulting from uncharged conduct is irrelevant to whether the defendant lied about his conversations with reporters. [emphasis in the original]

In their latest brief, Libby's defense lawyers argue that the question of damage is central to the case, that Fitzgerald himself had said so during his October news conference, and that it is hard to imagine the issue not coming up at trial:

The government argues that evidence concerning whether any damage resulted when Ms. Wilson's identity was "leaked" should not be provided to the defense because a claim of actual damage is not explicitly alleged in the indictment. The defense has every right to anticipate that the government will attempt to portray the disclosure in question as a damaging breach of national security at trial. This expectation is reinforced by the Special Counsel’s statement at his October 28, 2005 press conference that when Ms. Wilson’s affiliation with the CIA was made public, "the damage wasn’t to one person. It wasn’t just Valerie Wilson. It was done to all of us."

That is where the argument stands today. In each instance, Fitzgerald's underlying argument is that Libby is charged with perjury, obstruction, and making false statements, and the question of Wilson's status is not relevant to the question of whether Libby lied under oath. But the issue of Valerie Wilson's status underlay every aspect of the CIA leak investigation; indeed, it was presumably the threshold question that Fitzgerald had to answer before proceeding with the probe. Why he has so far refused to provide any information to Libby's team is simply not clear. Perhaps tomorrow's court session will shed some light on that.

[Just mythoughts]

"Tenant?"


Actually I think the team Rockefeller under the method and means described by his leaked memo were directing this whole effort. Rockefeller went to Syria/Jordan/Saudi Arabia in Jan of 2002 to "warn" about the intentions of the President. Joe Wilson goes in Feb of 2002 to Niger and stays silent for almost a year.

The liberal intent was to save Saddam and win elections whatever it took.

[Bommer]

The fact that Valerie may or may not have been outed, because she may, or may not have been a secret spy girl, really ain't got too much to do with this.

I disagree. Its got everything to do with the case, otherwise its not a crime to out someone who was never covert! A grand jury is seated for the sole purpose of investigation of breaking the law. If they were seated to investigate a crime that was never violated, nor never a crime where no statute has been broken, then Fitz is in big trouble!

[XJarhead]

The fact that Valerie may or may not have been outed, because she may, or may not have been a secret spy girl, really ain't got too much to do with this. Neither does the fact that her sleazoid bed partner may, or may not have, outed her long before Scooter may, or may not have.

Agreed, but I think the problem is that Fitz blabbed a bit too much at his presser and elsewhere about this indictment. I'm not sure if a judge if going to let him smear someone in public when announcing an indictment, then refuse to let the defense get evidence to refute the smears. Even if the smears are not mentioned explicitly in the indictment, I think he may have a problem with that unless Fitz can give good national security reasons why that information should not be required.

[Lurking in Kansas]

The more I read about Fitzgerald, the more he seems to be a classic case of the Peter Principle at work.

[Lady Heron]

The only problem with your thinking is Fitzgerald's press conference. Otherwise I would agree.

[mass55th]

I'd still like to know how a supposed "undercover" agent makes political contributions in the name of a fabricated company created to cover one's CIA employment. Wouldn't that be against the policy of the CIA? 10 to 1, Plame used a CIA phone line to pledge these contributions...another act that is not allowed while in the employment of a government agency. But I guess since Al "the wood" Gore did it, others feel it's okay to do it too.

[colorado tanker]

It really strikes me as unethical for a prosecutor to make the claims Fitz made in the press conference and then refuse to provide the documentation to back it up, claiming later it's all technically irrelevant.

[STARWISE]

I think the referral had to originate within the CIA, due to the nature of the violation ... doesn't mean Rocky couldn't have an implication in that either.

[Puppage]

They did a Homey the Clown skit where Homey had this sock that he beat kids over the head with.

Homey don't play dat

[lepton]

Purgery usually must be material to a case to be a crime.

Perjury must be material to determining that there was a crime as well. Even if Libby didn't leak, he can't be allowed to mislead a legitimate investigation. ...But that's not the issue. The issue is that it appears that Fitzgerald failed to determine if there was even a basis for investigation...not that Libby later may have interfered with an investigation that never should have occured.

[Republican Red]

Another post by Byron York at NRO:

PATRICK FITZGERALD, UNCONSTITUTIONAL? [Byron York]

Lawyers for Lewis Libby have just filed a motion to dismiss the perjury, obstruction, and false statement charges against him in the CIA leak case. That is standard procedure, and to be expected, but what is interesting about the motion is that it is based on a question that has been discussed privately among observers in Washington but has not really been fully explored in public. That question is whether the Bush administration gave CIA leak prosecutor Patrick Fitzgerald too much authority. In essence, Fitzgerald has as much power as prosecutors under the old independent counsel statute, but without the supervision of the attorney general or a three-judge panel, and without the requirement that he report his findings to the public.

Fitzgerald's authority comes from a December 30, 2003 letter from Deputy Attorney General James Comey in which Comey -- after the recusal of then-Attorney General John Ashcroft -- "delegated to Mr. Fitzgerald all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a Central Intelligence Agency employee's identity." In that letter, Comey told Fitzgerald, "I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department."

Libby's motion to dismiss argues that that is a unique, and constitutionally unsupportable, grant of power:

Acting without any direction or supervision, Mr. Fitzgerald alone decides where the interests of the United States lie in an investigation that involves national security, the First Amendment, and important political questions. He alone decides which individuals to subject to investigation, what evidence will be obtained or not obtained, and whether or not continued investigation and prosecution are warranted. He is subject to no oversight and has no obligation to comply with Department of Justice policies and regulations that constrain the exercise of law enforcement powers in all other federal cases. Furthermore, he has unilateral authority to expand his jurisdiction and the power to say when, if ever, his office should be terminated. It was limitations on those powers that led the Supreme Court to uphold the independent counsel provisions of the Ethics in Government Act. It is the absence of such controls that violates the Appointments Clause in this case.

After the independent counsel law expired, the Clinton Justice Department came up with a set of rules governing the appointment and practices of special prosecutors for future investigations. Those rules included supervision and control of the prosecutor. But the Bush administration, for reasons that have never been made public, decided not to follow those rules and instead gave Fitzgerald unlimited powers -- a decision that some in the administration no doubt regret and one which raises real constitutional questions. Now we'll see what the judge in the CIA leak case thinks about it.

[Kenny Bunk]

Its got everything to do with the case, otherwise its not a crime to out someone who was never covert!

One might think so, but remember, "The Law, Sir? The Law? The Law, Sir, is a Ass!"

From your keyboard, Bommer, to the Judge's ears.

[Just mythoughts]

I do not disagree about the origination of the filing, but I think the whole Niger trip to the filing was orchestrated by somebody in Congress. When the supposed leak or Novak's article first appeared old Rockefeller was squawking about needing an investigation, it was not until later Rockey's memo was leaked.

[Kenny Bunk]

Even if Libby didn't leak, he can't be allowed to mislead a legitimate investigation

That's part 1 of Fitz's Perjury Trap.

Part 2: The issue is that it appears that Fitzgerald failed to determine if there was even a basis for investigation...not that Libby later may have interfered with an investigation that never should have occured.

The beauty of Fitz's Perjury Trap is that he can claim that he would be unable to know whether or not there was a case, because Libby lied!

Fitz has served his masters well. His line of legal reasoning is designed to remove Valerie and her husband from the case. Libby is in big, big trouble here.

This is a case of "Turnabout is Fair Play." We didn't get Bill Clinton because of Monica. We got him because he lied about it under oath. It's sadder in Libby's case, because, unlike BJ, it doesn't look like (to me) he knew what he was doing.

[kcvl]

If that photo doesn't say it all I don't know what does.

[p23185]

They just ride off into the sunset, lay low for a while and then show up again to try ruining someone's life and reputation.

Man, my dream is to see at least 3 of these 4 "see no evil, hear no evil" buffon morons in prison for all the damage they did to this country, and continue to do.

[firewalk]

Thanks Howlin

[nopardons]

Lump? This will be more like a TON of coal, for the Dems!

[nopardons]

BIG bumpity BUMP to this.

[Cboldt]

If there is no underlying case, then how can any statement be "material?"

The context is investigating whether or not a crime has been comitted. A rule that legally excuses lying to investigators (e.g., put them on the wrong track) would be disruptive.

There is at least one case where the criminal statute itself was found unconstitutional, therefore it was impossible to be a criminal under it. But, the fellow who lied in the case? He still got nailed with perjury.