While U.S. District Judge Reggie B. Walton has said he will not allow the Libby trial to become a trial about the war in Iraq, the prosecution most certainly appears to have been deeply influenced by the debate over the decision to go to war. Those who accused the administration of lying and deception were assumed from the outset to be "good leakers" and "whistle-blowers" deserving protection. Those, like Libby, who shared the president's views were targets to be pursued for having attempted to answer the serial lies of a prominent critic. That the original leak came from a repentant Armitage, who apparently testified that he was unaware Plame had ever been under cover, should have been a clue for the prosecution. The theory of the case in which a "thuggish" White House set out to punish Joe Wilson simply wasn't true. Instead, as noted by the astute observer Tom Maguire (who reported on the case in great detail at his website justoneminute.typepad.com), Fitzgerald seemed "to be investigating 'Did the White House conspire to out Ms. Plame?' rather than 'Who outed Ms. Plame?'"
This may explain the odd focus of Fitzgerald's investigation, including his outrageously prejudicial remarks at the October 28, 2005, press conference in which he announced Libby's indictment for perjury, false statements, and obstruction, as well as his decision to proceed with such a thinly justified indictment. Fitzgerald had obviously bought the Corn-generated Emma Peel-on-the-railroad-tracks fable.
"I can say," he announced that day, "that for the people who work at the CIA and work at other places, they have to expect that when they do their jobs that classified information will be protected. And they have to expect that when they do their jobs, that information about whether or not they are affiliated with the CIA will be protected. . . . I will say this. I won't touch the specific damage assessment of what specific damage was caused by her compromise"--none has ever been shown--"I won't touch that with a 10-foot pole. I'll let the CIA speak to that, if they wish or not. I will say this: To the CIA people who are going out at a time that we need more human intelligence, . . . they need to know that we will not cast their anonymity aside lightly."
But why was this sermon being delivered with Libby in the dock, and not Armitage, the confessed source? Since Armitage had testified that he was the source of the leak that served as the basis for the CIA referral letter at the very outset of the investigation, what had the prosecution been up to all that time?
Barely a month into his investigation, in February 2004, Fitzgerald sought and quickly received from Comey an expansion of his mandate to cover process crimes such as perjury and obstruction. In retrospect, this should have been a tipoff that Fitzgerald was changing focus from the underlying "crime"--which was nonexistent. Judging from the parade of witnesses who would eventually be called before the grand jury, it seems he and his team of investigators were under the impression that before Novak's column ran, a senior administration official had told two White House officials to leak the Plame story to six reporters. This notion might well have been gleaned from a poorly written, later edited, account in the Washington Post. This inaccurate, thinly sourced story--which might well have been told to Fitzgerald's investigators as well as to the Post--somehow seems to have become the template for the investigation, which from then on focused on who those presumptive two White House officials were.
The source of this claim, which so distorted the prosecution's view of the matter, has not been revealed. In discovery, Libby's defense team made clear that they think it was Marc Grossman, Armitage's undersecretary for political affairs, who they contend has been a friend of Wilson's since the two went to college together. That Fitzgerald bought into the left-wing typology of bad leakers (defenders of the Iraq war like Libby) and blameless leakers (Armitage) is evident in his August 27, 2004, affidavit to the court seeking to compel the testimony of New York Times reporter Judith Miller, who had discussed the Wilson story with Libby but never published anything about it. At the time he filed the affidavit, he of course knew that Armitage had been Novak's source. Fitzgerald argued:
One key factor in deciding whether to issue a subpoena has been whether the "source" to be identified appears to have leaked to discredit the earlier source (Wilson) as opposed to a leak who revealed information as a "whistleblower". . . . The First Amendment interests are clearly different when the "source" being sought may have committed a crime in order to attack a person such as Wilson who, correctly or incorrectly, sought to expose what he perceived as misconduct by the White House.
This affidavit was a model of disingenuousness, misleading Judge David Tatel, who revealed his utter lack of political sophistication in the decision compelling the testimony of Miller and other reporters (which paved the way for Miller's 85 days in jail for contempt, when she at first refused to testify):
While another case might require more specific evidence that a leak harmed national security, this showing suffices here, given the information's extremely slight news value and the lack of any serious dispute regarding Plame's employment.
It was not of "extremely slight news value" that Plame had suggested Wilson for his trip. The story of Joe Wilson's heroic Mission to Niger was explosive because of Wilson's disingenuous original version: Cheney had sent him, had knowledge of his findings that Iraq never sought uranium in Niger, and had ignored those findings. This was the very cornerstone of the "Bush Lied" lie--which has now traveled all the way around the world many times over without the truth ever having caught up. This was a lie that undermined public trust in the president in the middle of a war, and has persisted despite the contrary findings of the Senate Select Committee on Intelligence, and the Butler and Robb-Silberman commissions. The presupposition driving Fitzgerald's quest--that White House officials had conspired to "attack" a whistle-blower who sought merely to expose misconduct--was deeply politicized, and so skewed the investigation that the results were preordained: Somehow, someone would be tagged "it."
As late as this year's February 24 discovery hearing, Fitzgerald revealed his utter cluelessness about how and why information spreads in Washington. The prosecutor claimed in court that "Mr. Wilson didn't reveal himself as the unnamed Ambassador [of Kristof's column] until July 6," when Wilson's own New York Times op-ed appeared.
This ignores that Wilson was the star witness at the May 2, 2003, Senate Democratic Policy Committee meeting (minutes of which are inexplicably missing from the committee website and seemingly impossible to obtain), where he and his wife met with Kristof and set the game in play. This ignores that, by Wilson's own admission, before his op-ed he had contacted a number of people in the Senate and State Department to tell them the same story. And this ignores that he was telling lots of reporters the same story he told Kristof. Among the reporters he's known to have talked to were Walter Pincus of the Washington Post, John Judis and Spencer Ackerman of the New Republic, and Andrea Mitchell, who hosted Wilson's appearance on Meet the Press the morning of July 6 and who would, at the very least, have had advance notice that his op-ed would be appearing that day. And for each reporter who knew, we must assume a number of editors, colleagues, and friends were also apprised of the ambassador's identity.
Fitzgerald further ignores that in the post-May 6 per iod, before his own op-ed appeared, Wilson briefed two congressional committees about his trip to Niger. And finally, Fitzgerald ignores that on June 14, 2003, in downtown Washington, at a conference sponsored by an antiwar group called the Education for Peace in Iraq Center, Wilson strongly implied that he was the ambassador sourced anonymously by Kristof. In the program distributed to attendees and posted online until recently, he listed his wife's name, Valerie Plame, in his bio.
Adding to this failure to acknowledge the variety of ways in which knowledge of the Plame/Wilson connection could have spread, Fitzgerald was constrained by Department of Justice guidelines: He could not ask reporters broad questions about their sources, but had to focus on whether they spoke to specified sources. Even then, the reporters refused to respond, absent waivers to testify about those conversations. Many, like Corn and Kristof--for whom Plame and Wilson were the obvious sources--were never questioned at all. Most significantly, Armitage, whose calendar showed a meeting with the Washington Post's Bob Woodward, seems never to have been asked if he told other reporters what he told Novak.
Instead the prosecutor fixed his course on determining whether Rove or Libby said anything to any reporter prior to Armitage's conversation with Novak on July 8, 2003. His lodestar was a June 10 memo prepared by Carl Ford Jr., assistant secretary of state for intelligence and research, detailing a meeting of INR and CIA officials at which Plame had introduced her husband and explained the mission the agency intended to send him on. To Fitzgerald, the source of any "bad" leak had to be found among the recipients in the White House of this memo.
Marc Grossman plays a role in this as well. The memo was originally written for him. He says that when Vice President Cheney asked who Nick Kristof's unnamed ambassador was, and how and why he had been sent to Niger--remember, Wilson had suggested to reporters that he'd gone at Cheney's "behest," and Cheney most certainly had not "behested" this--Grossman asked Ford to prepare the memo. It was redated July 7, 2003, and while it never was distributed to the White House, it was faxed to Armitage and Powell. Why the original memo was not given a new cover, instead of being redated and readdressed, is still a mystery. The memo never suggests that Plame was covert or even classified, which seems odd, too, given that, were her identity to be kept secret, there'd be no reason to identify her in the memo and even less reason for her to have attended a meeting at which she introduced her husband to State Department officials. As Armitage put it earlier this month, in an interview with CBS News, while the document was classified, "it doesn't mean that every sentence in the document is classified. I had never seen a covered agent's name in any memo in, I think, 28 years of government."
Count one of the Libby indictment charges, inter alia: "On or about June 11 or 12, 2003, the Under Secretary of State orally advised Libby in the White House that, in sum and substance, Wilson's wife worked at the CIA and that State Department personnel were saying that Wilson's wife was involved in the planning of his trip." The undersecretary referred to is Grossman, and Libby says he has no recollection of any such conversation. He also denies that Grossman told him of Plame's identity.
In the indictment, the prosecutor puts great weight on Grossman's recollection of this conversation, as he does of every scrap of information suggesting Libby knew of Plame before Armitage's disclosure to Novak. Fitzgerald connects the dots to a baffling June 23, 2003, conversation Libby had with Judith Miller, which then allows him to tag Libby "it"--making him the "first to tell" a reporter of Plame. (The weight he places on this is such that it seems almost as if Fitzgerald is trying to justify to himself his decision to go after Libby, who didn't leak to Novak, while treating Armitage, who did leak, as an "innocent accused.") Fitzgerald's theory that Libby was "first to tell" was always a stretch, given the variety of people who already knew Wilson's story. It collapsed definitively when Woodward--whom Armitage had twice in 2004 refused to grant a waiver of confidentiality, finally getting one after the indictment of Libby--came forward to say that on June 12, 2003--well before the Libby-Miller conversation--Armitage had told him of Plame and her role in Wilson's trip. Further, Woodward has revealed that he bumped into Libby in the hallway that same day, that his notes indicate he might well have told Libby what he'd heard from Armitage, but that those same notes do not show Libby as having responded. He has added that if he'd been asked earlier, when his recollection was fresher, he could perhaps have shed more light on their conversation.
If the prosecutor had asked and Armitage had failed to reveal the conversation with Woodward, and Armitage had then for years refused to allow Woodward to reveal this information to the prosecution, Armitage obstructed the investigation. If, as seems more likely, the prosecutor, with Armitage's notebooks and calendar in hand, never asked him about his conversations with other reporters, Fitzgerald would now seem to be trying to disguise his own mishandling of the investigation as obstruction by others. You cannot wear blinders and suggest someone kept you from seeing the whole picture.
The sum and substance of the charges against Libby are his differing recollections of conversations with three reporters: Matthew Cooper (formerly with Time magazine), Judith Miller, and Tim Russert of NBC. Libby's defense is that he was very busy during this period, that Plame's identity was then a minor point to him, and that he testified to the best of his recollection on these matters--which in any event he would have had no motive to lie about, and which seem not to have been material to any other crime, none having ever been charged.
Here, in summary, is what we know from the Libby indictment and from the May 16, 2006, discovery hearing, at which some evidentiary matters not disclosed previously were revealed:
* Matthew Cooper: Libby recalled and testified that on July 12, 2003, Cooper called him and he (Libby) raised the subject of Wilson's wife. Cooper, on the other hand, says that he recalls it differently, that he raised the matter with Libby. In fact, it appears both may have faulty recollections. As Libby's lawyer argued in May: "Mr. Cooper took notes--He sat there and typed on his computer as he talked to Libby of everything they talked about. We have those. There is no reference to the wife whatsoever. Immediately after the call with Mr. Libby, Mr. Cooper sent to his editor an email describing the important things that Libby said. There is no reference to the wife. None whatsoever.
"There is another email. Again, we have this one. There is an email by Mr. Cooper, again to his editor, on July 16, four days after his conversation with Mr. Libby and five days after his conversations with Mr. Rove, about the article they are planning to write in which they are going to mention the wife. And the email says--talks about him having an administration source for the information about Mrs. Wilson."
Time testified that it had another document, which it had not turned over to Libby, that mentioned Plame. But, "even if other Time, Inc. reporters knew about Ms. Plame," the Time lawyer contended, "that would in no way support Mr. Libby's grand jury testimony." The judge reviewed documents in Time's possession that they had not turned over to Libby, and ruled that no matter how Cooper testified, the documents would make his testimony impeachable. That is, no matter how Cooper testifies, there is evidence in Time's documents that might well discredit his testimony.
It is far from clear why the prosecutor felt testimony in which Libby said he thought he raised the issue to Cooper becomes a charge for false testimony in the indictment, when Cooper said he raised it, and when, moreover, Cooper's contemporaneous notes do not reflect any discussion with Libby about Plame. Nor is it easy to imagine a jury would find this a compelling count either.
* Judith Miller: The charges relating to Miller are hardly stronger, though they, too, give a revealing view of the one-sidedness of Fitzgerald's investigation and prosecution. Having received Miller's notes, Libby's lawyer observed that they revealed she had conversations with other people besides Libby that had never been fully explored:
You will see that Ms. Miller was investigating and focusing on Mr. Wilson before the very first time that she met with Mr. Libby, that is, before June 23rd of 2003, which is the date she says that she and Mr. Libby first discussed or that Mr. Wilson's wife was first mentioned in a conversation with Mr. Libby. There are numerous entries throughout those notebooks to "V.F." or "Victoria Wilson" or to "Valerie Wilson," all of which indicate that she is talking to somebody else about Mr. Wilson's wife. . . .
The second entry that is of importance here is on July 8th of 2003. And your honor again will see in her notes--in the midst of her notes of her meeting with Mr. Libby, there is again a parenthetical--it's sort of odd, but there is a parenthetical that says "wife works in WINPAC," question mark.
Now as far as we can tell--and we haven't gotten discovery from the government on this issue as yet, but as far as we can tell, Ms. Plame did not work in WINPAC. As far as we can tell, nobody claims to have said to Mr. Libby that she did work in WINPAC. So where does that come from?
Miller's testimony is baffling and, when read in conjunction with her newspaper accounts of her September 30, 2005, grand jury appearance, is even less comprehensible. In her defense, she was blindsided by the prosecution, which had apparently not known about or asked for her notes on the June 23 meeting before her appearance in court. She simply might have been unprepared to be questioned about them. Moreover, though she conceded the notes reflected conversations with others, by his explicit agreement with her, the prosecutor had promised not to ask her about her other sources.
Miller said at the grand jury appearance, when the prosecutor breached that agreement, that she could not recall who those sources were. (Libby's counsel indicated he'd called six or seven reporters with whom Libby talked at roughly the same time, all of whom would say Libby never mentioned Wilson's wife.) And while Plame's name in some form or another is in Miller's notes, it is unclear who raised it and when. It does appear, however, that Wilson himself might have been one source for Miller, as he had been for so many other reporters.
The New York Times admitted that it had in its possession documents that named Wilson and/or Plame, and resisted turning them over on the ground that, since the reporters and editors were not likely to be government witnesses, the defense was not entitled to them--the documents being producible in a criminal proceeding only for impeachment purposes.
The judge disagreed, holding that, depending on how Miller testified, these documents might impeach her and therefore Libby was entitled to see them, though only after she testifies. Just as Cooper is unlikely to be a star witness, Miller is likely to bomb on the stand.
* Tim Russert: Which leaves the final witness. Libby testified that he believed Russert was the first to tell him of Plame and her connection to Wilson. Russert apparently has no notes of the conversation. He seems to have been the only reporter named in the indictment whom Libby called on July 10, 2003. The call was to complain about MSNBC's coverage of the Bush administration. Libby seemed to think that, in the course of this, Russert told him about Plame and said "everybody knew." Russert has been tight-lipped about the substance of the conversation, but there has been wide speculation that Libby called to heatedly complain of the anti-Semitic tone of Chris Matthews's reporting. Matthews says that if so, Russert never conveyed the complaint to him.
Enter their NBC colleague Andrea Mitchell. As Libby notes, she is an "access" reporter with contacts in the State Department and CIA. She is Russert's subordinate. On July 6, 2003, the morning of Wilson's inflammatory and false op-ed in the New York Times, Wilson appeared as a guest on Mitchell's show--an appearance that certainly required some foreknowledge of Wilson's identity and background, and of the planned op-ed. Three months later, asked in an October 3, 2003, appearance on CNBC how widely known it had been in Washington before the Novak column that Wilson's wife worked for the CIA, Mitchell said, "It was widely known among those of us who cover the intelligence community and who were actively engaged in trying to track down who among the foreign service community was the envoy to Niger." (She subsequently, and not credibly, has tried to back off this statement.) Russert is Mitchell's boss, and as inconceivable that Fitzgerald never interrogated her is the claim that she never told him.
In any event, that's the case against Libby. Two reporters whose testimony is not likely to stand up well under cross examination, and one reporter who says that he and the only charged defendant (Libby) never discussed the woman at all.
And as for Armitage, who did tell a reporter, and who told a second reporter, Woodward, whom he kept from coming forward in a timely fashion with the truth--that Armitage had told him long before Libby spoke to any reporter about the matter--well, Fitzgerald calls him an "innocent accused." The prosecutor who directed Armitage not to tell the president or anyone else that he was the source dares to charge another man with obstructing his so-called investigation.
Meanwhile Libby, who fully cooperated with the prosecution, told what he recalled as best he could recall, and promptly gave waivers of confidentiality to all reporters known to have talked to him in this period, is charged with crimes for which the prosecutor is seeking a 25-year prison term.
It's long past time for the president to call in the attorney general, seek an accounting of the case from Fitzgerald, and order him to dismiss the charges or be dismissed himself.
Clarice Feldman, a Washington lawyer who served in the Justice Department's Office of Special Investigations in the Reagan administration, has written extensively on the Plame case for The American Thinker (www.americanthinker.com).