How Covert Was Valerie Plame? Don't Ask!

Byron York of NRO reports on Friday's hearing in the Libby pre-trial maneuvering.  He focuses on skirmishing regarding the circumstances of Ms. Plame's classified status and the actual harm done by the "outing" of her CIA affiliation:

CIA leak prosecutor Patrick Fitzgerald argued at a hearing Friday that, as far as the perjury charges against former Cheney chief of staff Lewis Libby are concerned, it does not matter whether or not Valerie Wilson was a covert CIA agent when she was mentioned in the famous Robert Novak column of July 14, 2003. "We're trying a perjury case," Fitzgerald told Judge Reggie Walton. Even if Plame had never worked for the CIA at all, Fitzgerald continued — even if she had been simply mistaken for a CIA agent — the charges against Libby would still stand. In addition, Fitzgerald said, he does not intend to offer "any proof of actual damage" caused by the disclosure of Wilson's identity.

Well, let's not hold Fitzgerald's hyperbole against him - he has a position to defend, and as a matter of law he may be right.

Or he may not be - the defense argued several different points in court, and has offered others in their filings.  From the filings, they suggested that her status and the harm done may both speak to Libby's intent and state of mind.  Their gist - Libby may have been told, or inferred from the manner in which information about Ms. Plame was treated, that her status was no big deal.  If that was in fact the case, then his defense that the Plame information was an easily forgotten low-priority item and that he had no reason to lie looks less like a self-serving rationalization and more like the truth.

In court, the defense offered this as well:

At that point, [Defense attorney] Wells introduced what was the Libby side's most extensive statement to date of its theory of Wilson's CIA status. "I might call Ms. Wilson" to testify, Wells said. "I might call her husband. There are going to be CIA employees as witnesses in this...Was she just classified because some bureaucracy didn't declassify her five years ago when they should have?" Later, Wells asked whether Wilson might have been "classified based on a piece of paper." After Wells's presentation, Fitzgerald responded that Wilson's CIA status did not matter.

Ah ha, the old theory that Ms. Plame was only classified because of bureaucratic inertia!  One can find exhortations to avoid that in Executive Order 13292 regulating classified info.

More comments on the hearing are back here.  The gist - a non-White House senior official leaked the Plame story to Bob Woodward in June, and (quite probably) Bob Novak in July; the source admitted to the Noval leak but only testified to the Woodward leak in November 2005.  However, he lacked criminal intent, or was not part of a sinister conspiracy, or something, because Fitzgerald is apparently not pursuing him.

Libby, on the other hand, mentioned Plame to Judy Miller, discussed the Wilson trip but not Ms. Plame with Tim Russert, and responded with something like, "I heard that, too" when Matt Cooper ran the Plame story by him (per the reporter's versions).

Does this make Libby a criminal conspirator, or a criminal leaker?  Not yet - he hasn't been indicted for that.  However, per Fitzgerald he lied about his conversations with three reporters, and, as Fitzgerald explained in his press conference, he is guilty of something, so away we go.

Just what Libby is guilty of that Mr. Clean of the non-White House is not guilty of eludes me presently, but I assume all will come clear in the fullness of time.

Comments

[anon]

So York is now admitting that she was covert, but saying she wasn't covert enough?
Whew.

[anonagain]

"Well, let's not hold Fitzgerald's hyperbole against him - he has a position to defend, and as a matter of law he may be right."

Err, technical point here but isn't "a matter of law" - ya know, his job?

[hrtshpdbox]

No. Where'd ya get that from? Learn to read (or put down the herb).

[Other Tom]

"Anon" might benefit from learning to read, and from keeping in mind the distinction between "covert" and "classified." At no point does York "admit" Plame was covert--in fact, he doesn't admit anything; he simply reports on the argument.

[flenser]

So the CIA continues to leak genuinely important classified information left, right, and center, but not only is Mz Plame’s identity an ultra-top-secret, even the referral which mentions her status is ultra-top-secret? I’m glad to see people there have their priorities straight. It’s one thing to leak data letting Al Queda know the details of American efforts to combat them, but God forbid the American people should ever find out what kind of games the CIA is playing in American domestic politics.

Why, next thing you know, some people might get the idea that we are better off erasing the entire institution and starting from scratch.

[clarice]

I'm dying to hear Fitz' opening statement. Really I am.
Ladies and gentlemen:It is important that the idle curiousity of the prosecutor be satisfied so it was really important for me to know who in the WH (I don't care about anyone else) said anything at all about a whistleblower and his wife. And in doing so, I ask that you remember how important it is to credit the not-well remembered conversations from the standpoint of the reporter witnesses and to discredit very similar but not identical recollections of Libby.

[kim]

'Cuz it was Tenet.
====================

[Kate]

I'm beginning to feel very bad for Libby on this. Any chance that he could get a deal similar to Sandy Berger and be done with this. That he is facing 30 years in prison for this nonsense is outrageous. His career, reputation, and financial security have been ruined by that grandstanding prosecutor. I'm starting to really dislike Mr. Fitzgerald.

[Jim E.]

York's article reports that the judge said there's a chance that he might not allow any mention of any damage to Plame or the CIA or America. It also seems the judge might not allow any discussion related to Plame's status. "Just because it's alleged in the indictment doesn't necessarily make it admissible," the judge said. In response, Wells said, "That's true."

Why would Wells say that? According to the legal "experts" who frequent this blog's threads, such an occurence would render the case moot, and provide a clear cut reason for the judge to throw Fitz out of the courtroom. Why hasn't Wells argued for the dismissal of the case on this specific basis? Wells said he wanted the Plame information--in particular, documentation about her status--in the event it was brought up at trial. If it's not brought up at trial, then Wells doesn't seem to need the info.

Seems like Wells is ignoring the one point clarice brings up repeatedly. Why is that? Do lawyers prefer to save their best motions for last?

[TM]

Thank you, Other Tom.

As to the opening statement (if we get that far) - per York, the judge said he may insist that talk of damage be kept out of the trial.

Fine, I can see that being applied to Fitzgerald. But Libby's defense may well be, "I didn;t think ti was important, and other, more important things stayed in my mind".

Now, how can the judge not let Libby say that, or attempt to verify it?

And if Libby testifies that none of the people (Cheney, CIA briefer, Grossman) ever flagged Plame's importance to him, wouldn't documentary evidence verifying that she was not in fact important be relevant?

(If the documentary evidence contradicted it, Libby could still offer the defense - maybe nobody told him, even though they should have. But it would be tougher.)

I can't see the judge keeping this out.

[flenser]

Given all the backgound info on this case that has already been leaked or come out, why would it be so urgent that the CIA referral be kept secret?

Maybe its my suspicious mind but I have to wonder if there is not something there that is embarrassing to Fitz and the CIA. Of course the WH could solve all this and simply declassify the referral.

[Sue]

So, Fitz stands before God and country and tells everyone in a lengthy presser, how damaging this leak could be, taints the jury pool, and the judge says, naw, you can't talk about it at trial? How does that work? How do you unring a bell?

[James Moeller]

Wasn't this a smear job against a "whitleblower?" Isn't the case about Libby lying? To the FBI? Isn't it really that simple? End of story?

[Sue]

Well let's just lock him up and forget about a trial. Is that the way it works now?

[cathyf]

Wow, Tom, I can't believe that my "exhortation" made it to the front page of JOM!

I'm still wondering if that is the key to Mrs. Wilson's status. The position she used to in (secret agent with a decade of experience) pays more money than the only CIA positions that she was qualified for once her cover was blown. Sort of like a supermodel whose career is ended when a flashbulb explodes on her and causes extensive facial scarring. The CIA people felt guilty, because they were partly responsible for blowing her cover, and she wasn't at all responsible. So they exploited the secrecy system to keep her in the covert paygrade even though the job she was doing was a much lower-paying job going to meetings.

If this were a private company, and the stockholders didn't have a problem with this, then it wouldn't have been any big deal. But this is the government, where stealing a paperclip is against the law, and even if 99.99% of the US population would agree that paying Mrs. Wilson at the higher payscale was the right thing to do if those were the circumstances, it would still be illegal.

So was Mrs. Wilson's "covert status" really part of a criminal conspiracy to defraud the US taxpayer out of tens of thousands of dollars in salary (and now pension) money? If so, then Mr. Wilson is an audacious gambler. Before he started winging to David Corn, no one would ever have thought to question whether his wife whose work in 2003 was not-covert had ever done work that was covert, or wondered if her payscale-above-her-qualifications was different in any way from the thousands of other government employees who get paid a lot of money considering the value of what they do.

cathy :-)

[topsecretk9]

Sue
Remember that bit in Libby's dismissal about SP's public statements? Sheesh. I think the theory -- Libby would plea -- is the ticket.

[clarice]

Jim E, I think Wells hasn't yet made the argument because while the case is getting odorous it's not quite yet ripe. When the judge determines that it is relevant and the prosecution insists it will not turn over the materials, the judge will order that Fitzz cannot make reference to those matters in court, and then either Fitz will fold on his own or the case will be dismissed.(If it hasn't been first dismissed for the reasons cited in the motion to dismiss).

I think we are rapidly approaching Fitz' over the cliff moment one way or the other.

[topsecretk9]

Wow, Tom, I can't believe that my "exhortation" made it to the front page of JOM!

I can.

[clarice]

I love the title of this thread BTW..love it.

[topsecretk9]

Clarice
Don't ask, don't tell...pretend.

[Jim E.]

clarice,

OK. The idea that the case is "not yet ripe" for such a motion makes sense to me. Thank you for the response.

[Rick Ballard]

I wonder if Fitz will settle this by producing a sworn affidavit from David Corn stating that "he had it from a reliable source" that Val was covert? Murray Waas could provide a second sworn affidavit affirming Corn's status as an impartial observer of the highest repute.

Hell, if it's been good enough for Fitz so far, why should anyone object?

[Kate]

I recall reading at the time of Libby's indictment, that Fitzgerald offered Libby a plea deal but Libby was expected to serve serious jail time and thus rejected the deal. I suspect before this is over a more reasonable plea, with not so serious jail time, will be offered to Libby.

[windansea]

here's anon over at the hamsterwheel

The most interesting thing about the York piece is he admits (finally) that Plame was covert. Of course, he whines about it and tries to qualify that fact - hilariously complaining now that she wasn't "covert enough". But you know his last few columns? Where he was darkly proclaiming she probably wasn't covert? Turns out he was wrong and those columns were bullsh**. Shocker. No wonder it took him the whole weekend to write that tripe. He should of titled that column, "Okay I was wrong, so what."

of course no one has corrected him there

[topsecretk9]

of course no one has corrected him there
as anon would say...Shocker.

[clarice]

hamster could use a reading course, too.

Rick, stop giving Fitz more :inventive" legal theories. He's creative enough without your imput.
Now, I'm waiting for someone to turn up a case somewhere where some sap was convicted of obstructing justice for not satisfying an illegally appointed prosecutor's idle curiousity.

(If Goss has not yet sent over to Fitz a report that the "classification" of Plame was found to be erroneous , someone should kick him in the ass.Hard.)

[PeterUK]

Since this farrago has cost you American taxpayers millions are you not entitled to know whether Plame was classified,covert,semi-covert,demi-semi-covert or hemi-demi-semi-covert?

Cathy F
"Sort of like a supermodel whose career is ended when a flashbulb explodes on her and causes extensive facial scarring."
Are you saying marrying Joe was the equivalent of facial scarring?

[Jim E.]

Kate,

I have a modest request to make of you: can you please stop with your insincere posts? You keep writing that your opinion of Fitz and the quality of his is case just "starting" to decline. Give us all a break.

To wit:

Kate on Oct. 15, 2005 (4:48pm): “It seems like the prosecutor's case is very weak.” (Note: this is pre-indictment.)

Kate on Nov. 27, 2005 (11:44am): “OK...my opinion of Fitzgerald is dropping, dropping.”

Kate on Feb. 6, 2006 (4:22pm): “I had some faith in Fitzgerald, but I am less and less thrilled with his work as more and more is revealed.”

Kate on Feb 24, 2006 (2:27am): “I no longer expect Fitzgerald to just do the right thing from a legal perspective. I think he's a hack.”

Everyone noting a pattern?

And that's not all. Today you write (11:11am): “I'm starting to really dislike Mr. Fitzgerald.” Starting to dislike? "Starting"?!? Give it a rest.

[Syl]

Fitz' game will result in an absolute chilling effect on government employees speaking with the press. You think the press thinks the govt is secretive now? Just wait.

Who will be the real loser in this? The Press and the American people. And fitz has the nerve to think what he is doing is the opposite because he believes he's preserving the rights of whistleblowers everywhere. But the American people have a right to engage in the ideas presented on both sides of any argument so they can be better informed at the ballot box.

The American people, through their elected government, have a right to respond to any whistleblower's charges.

This prosecution is a travesty.

[noah]

Bleh. This case is making me nauseous. I really feel sorry for Libby. Rejected a plea for "serious jail time" but another leaker needs to have his good name protected?

[cathyf]

LOL, Peter. (Just in case that was a serious question, no, I think the career-ending disabling injury was done by the CIA and by Aldrich Ames before Joe and Valerie ever met.)

And yeah, blowing her cover was terrible... She went from an exciting high-flying secret-agent job to indulging the nacissistic fantasies of a washed-up ex-ambassador.

cathy :-)

[Rick Ballard]

Clarice,

I don't think that Goss should offer anything. If he is asked, I think that he should be exhaustive in providing whatever is requested.

At the end of this, a Goss reply in a press conference of "He never, ever asked for a damned thing since I took over." would provide for a suitable epitaph.

If Fitz needs his hand held to cross a street, or someone to check if he's washed behind his ears - that's his and Comey's problem - not anyone in the administration's.

[Larry]

I suspect before this is over a more reasonable plea, with not so serious jail time, will be offered to Libby.

Posted by: Kate | February 27, 2006 at 11:56 AM

I suspect before this is over Fitz will be pleading to go to jail in exchange for Scooter's promise not to sue him for malicious prosecution, misfeasance, malfeasance, speculation, defenestration and mopery.

[Syl]

JimE

Attacking another poster for their opinions is tacky.

I'm being kind.

[topsecretk9]

Timothy M. Phelps and Knut Royce, were subpoenaed but Fitz let it go...(refresher) they reported

...Intelligence officials confirmed to Newsday yesterday that Valerie Plame, wife of retired Ambassador Joseph Wilson, works at the agency on weapons of mass destruction issues in an undercover capacity - at least she was undercover until last week when she was named by columnist Robert Novak...

..."If what the two senior administration officials said is true," Wilson said, "they will have compromised an entire career of networks, relationships and operations....

...A senior intelligence official confirmed that Plame was a Directorate of Operations undercover officer who worked "alongside" the operations officers who asked her husband to travel to Niger..."

I suspect they will be called by the defense.

[noah]

Jim E.,

Don't the positions that Fitz has taken strike you a just a bit unfair? If not why not?

[maryrose]

Why should Libby accept a plea deal if he hasn't done anything wrong. He should serve no jail time. His reputation is ruined. Unlike Val Plame he has lost his government job and she has her retirement. I am also not pleased to be paying Val extra pay for a job that doesn't require she gets the bi bucks. I know she's retired now but an investigation into how she was paid at the CIA is in order. Sooneror later Joe Wilson will learn "Loose lips, sink ships" And their Good Ship Lollipop is about to go under.

[noah]

BTW...I didn't turn on italics and I don't know how to turn them off.

[Florence Schmieg]

Now we add James Moeller to our list of Js: Jim E, Jeff, Jerry. Hmmmm. Very unnerving.

[Cecil Turner]

Well, apparently my earlier complaint was misplaced . . . they did talk about all those issues on Friday, the coverage just couldn't seem to fit 'em into one story.

Hey Clarice, trivia question: would proffering a "perjury trap" defense get Libby a better deal on the discovery issues? And if so, could they withdraw the defense at a later date? (If so, why not?)

[topsecretk9]

I am so sorry about the tag, I forgot I even put one. Darn

[Sapper]

Don't you people get it? Plame had the most brilliant cover ever devised by the CIA:

Driving to Langley and working as an analyst.

Brilliant!

[Kate]

Jim, you made my case for me. There was a time I thought the case was weak (I now feel it's non-existent) but trusted the prosecutor. From October 15-27 November, I had doubts about the case, but liked Fitz.

I think I was impressed when Fitz didn't indict 22 people. I think that little matter of the Woodward case might have led me to believe that Fitz had a formulistic approach to this prosecution. The formula-nail Libby and Rove.

Nothing I've read since then has changed my opinion. If I note an uptick in my Fitz meter, I'll post it here right away and you'll be one of the first to know.

[topsecretk9]

Noah

It was me, it was all my fault, I don't deserve to live.

[David Walser]

The more we learn, the more this looks like a perjury trap set by Fitz. If, as it seems more and more is the case, Fitz doubted Plame was covert, it was more than just dirty pool to threaten Libby with being charged with outing a covert agent in order to induce his cooperation. The mere formal charge would have been devastating to the Administration -- look how much damage has been done by the mere allegation that such a charge might someday be made. The desire to avoid the charge -- even if Libby believed he was not guilty and would prevail in court -- would have been a strong motivation to be "creative" and "selective" in his testimony (a/k/a "lie"). This would not excuse false testimony. However, IF Fitz used the threat of a charge he could not bring to compel testimony, that would seem to be an abuse of prosecutorial power. Am I wrong?

[maryrose]

JimE
You have an annoying habit of taking what people have posted and playing it back to them.
I happen to find Kate's comments cogent and on topic as well as instuctive and well constructed. So back off Kate please. Make your own argument and we will discuss.

[clarice]

CecilHey Clarice, trivia question: would proffering a "perjury trap" defense get Libby a better deal on the discovery issues? And if so, could they withdraw the defense at a later date? (If so, why not?)

I don't know, It's a hard to establish such a thing especially while discovery is incomplete. And Libby seems to have so much more going for him than that--like no actual case and no appropriate appointment of the sp. I'd not muddy the waters with that unless I needed to and the record of it was crystal clear.

We are clearly heading on the facts-- which may be brought to a jury--to three reporters' imperfect memories v. Libby's imperfect memories about conversations about someone the prosecution surely will be barred from claiming was classified..

Now, you were the first to point out there was a big problem of materiality with this. And you were right. Stick with that thought.

[MTT]

clarice,

..."like no actual case and no appropriate appointment of the sp."

Other than that, I think this is going to be a terrific Fitzmas.

Just sayin'

[Rick Ballard]

DW,

The delegation of "all the authority of the Attorney General" by Comey (which the motion to dismiss characterizes as a derogation, an opinion which I share) would logically include the authority to write your own rules of prosecutorial conduct, would it not?

"independent of the supervision or control of any officer of the Department" is a pretty big chunk of territory - who is authorized to tell Fitz that he is off the reservation?

Dear Patrick, By the authority vested in the Attorney General by law, including 28 U. S .C. §§ 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. § 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department.

[clarice]

That's part of it, Rick, and why the Star Chamber analogy --for once-is a good one. Fitz was not limited by any of the DoJ regs applicable to prosecutors--even special prosecutors--which would have precluded his most outrageous conduct.