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FITZGERALD'S FOLLY [Byron York]

I have a story up on the latest in the CIA leak case, in which Lewis Libby says that neither President Bush, Vice President Cheney nor anyone else instructed him to discuss Valerie Plame Wilson with reporters. That's news. But what is perhaps bigger news is not explicitly stated anywhere in the legal papers, and that is that prosecutor Patrick Fitzgerald appears to be losing control of the case.

Since indicting Libby on perjury and obstruction of justice charges last year, Fitzgerald has said that he wants to keep the case narrowly confined to the question of whether Libby lied to the grand jury and obstructed the investigation. But actually trying the case -- and we're just in the discovery stage now -- has forced Fitzgerald to put forward a theory of Libby's motive and to try to place Libby's actions in the larger context of an alleged White House plot to punish Joseph Wilson. And doing that has forced Fitzgerald to open the whole pre-war intelligence can of worms and to argue at length about the White House's effort to rebut the arguments of critics like Wilson, which is not specifically part of the charges against Libby.

Yet even as he has fallen into the trap of widening his arguments to include the Bush case for war, making the case seem more and more like a political prosecution, Fitzgerald is still refusing to hand over evidence to Libby -- for example, documents relating to whether Valerie Wilson's CIA status was classified or not -- on the grounds that Libby does not need such evidence to defend himself against the narrow perjury and obstruction charges. So on the one hand, Fitzgerald is increasingly bringing the big picture into the case, and on the other he is desperately trying to keep the case tightly focused on the little picture. It's not going to work. Either through his own errors, or his own lack of insight, or perhaps just the impossible nature of the case, Fitzgerald is moving himself into an untenable position. And the case is really just starting.