The Faith Based Community In Action!

Mike Isikoff of Newsweek sends the faith-based community into a rapture!

His news:

Newly released court papers could put holes in the defense of Dick Cheney's former chief of staff, I. Lewis (Scooter) Libby, in the Valerie Plame leak case. Lawyers for Libby, and White House allies, have repeatedly questioned whether Plame, the wife of White House critic Joe Wilson, really had covert status when she was outed to the media in July 2003. But special prosecutor Patrick Fitzgerald found that Plame had indeed done "covert work overseas" on counterproliferation matters in the past five years, and the CIA "was making specific efforts to conceal" her identity, according to newly released portions of a judge's opinion.

Yup, that is what Fitzgerald "found", all right.  But if you trouble yourself to read the opinion (excerpted here), you will see that Fitzgerald did not trouble himself to actually provide any evidence to support his finding.  Emphasis added for the benefit of Mr. Isikoff:

As to the leaks' harmfulness, although the record omits specifics about Plame's work, it appears to confirm, as alleged in the public record and reported in the press, that she worked for the CIA in some unusual capacity relating to counterproliferation. 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.

We have a lot to cover.  Let's start with the definition of "covert":

Section 426.  Definitions

...

(4) The term ''covert agent'' means -
          (A) a present or retired officer or employee of an
        intelligence agency or a present or retired member of the Armed
        Forces assigned to duty with an intelligence agency -
            (i) whose identity as such an officer, employee, or member
          is classified information, and
            (ii) who is serving outside the United States or has within
          the last five years served outside the United States;

Now, Fitzgerald has determined that Ms. Plame "had carried out covert work overseas"; it may be a matter for the lawyers and the legislative history as to whether this statute means "served" in the context of a permanent overseas posting (and good luck finding some case law).

As to the CIA "making specific efforts to conceal her identity", well, no doubt they were.  However, allowing her husband to send up a red flare for the world's spychasers - I do consulting work for the CIA, but please don't look at my wife when you run my background - was pretty sloppy.

And the CIA press office belly-flopped with Bob Novak, who published despite their exhortations.  When the CIA wanted the WaPo to keep quiet on the names of the European countries hosting the secret CIA prisons, the WaPo complied - after the big guns were brought in).

When the Administration wanted to quash the NSA warrantless eavesdropping story, the NY Times sat on it for a year - after the big guns were brought in.

But after Bill Harlow of the CIA press office asked Bob Novak not to publish, there was no follow-up - no call from Tenet to Novak, no call from Tenet to Novak's publisher or editor.  Why not?  Why so shy at the CIA about protecting this critical secret?

And when the CIA filed a criminal referral, they only cited a disclosure of classified information; they did not mention covert agents or the IIPA.

Well, we are re-hashing old ground here (and new ground).

FWIW, my position has been that her status was classified, but that she probably was not eligible for protection under the Intelligence Identities Protection Act, i.e., not "covert".  But I have some free advice to the faith based community:

(a) Fitzgerald has said she is covert, so it must be so - he asked the CIA about her status, and they would never lie.  And no prosecutor ever exaggerated his case, the judges didn't review his evidence, Miller's attorneys opposed Fitzgerald's subpoena on very different grounds so this point was uncontested - relax and believe.

(b) Don't worry about the statute - if the prosecutor says "served" means "visited", well, he is the prosecutor, and we need hear no more.

(c) Don't worry about the fact that Libby's team has asked for info on Ms. Plame's status with the CIA in discovery, and Fitzgerald is being a bit balky about providing it.  He surely has the goods - he's the prosecutor.

Keep hope alive!

MORE:  Hmm, why is Mark Kleiman wandering off the reservation?  Nevertheless, I did enjoy this:

And undoubtedly Fitzgerald has determined what VPW's status actually was, since that's no harder than asking the CIA.

This is a beautiful thing, and I can just feel the love in the building - the CIA never spoofed anyone, right?  Nor would they.  Hey, just ask 'em!

Comments

[Rick Ballard]

I've often wondered why none of the marvelous journalists to whom the administration was imparting the information that Val was a CIA operative have ever reported on what the CIA told them when they called to do their verification.

These are top notch, first rate marvels of the journalistic world, renowned for their accuracy and fact checking. Surely they must have accurate and extensive notes of the CIA's response to what must have been their first thought of verification.

What were these investigative masters told, I wonder. And why have they never reported on it as Novak did?

[kim]

"Representation I trust the special counsel would not make without support'. Well, if he can't trust him, why should we?
==============================================

[clarice]

So I'm a "right wing flack posing as a lawyer" but charging Fitz with improprieties isn't done in polite circles? Kleiman, you make me laugh.

[Rick Ballard]

Oops - hit Post instead of Preview - I was getting to the CIA's need to take affirmative action in protecting a covert operative - like Harlow almost tried to do.

[vnjagvet]

Clarice must be hitting close to the bone to be labelled by Mark as a right wing flak.

Keep it up, Clarice!

[clarice]

Thamks--You might whisper in his ear that I was the first was person to beat the Warergate Special Prosecutor on Appeal--because I was--and it was probably when he was in first grade.

[mercury]

I'm sure you're right about all this.

Hee hee hee

[Tom Maguire]

I'm not sure why I want to single out Mark Kleiman, but this sentence merits a prize:

And undoubtedly Fitzgerald has determined what VPW's status actually was, since that's no harder than asking the CIA.

Sure, and when has the CIA ever misled anyone? And why would they?

[Rick Ballard]

What's a Kleiman and why should I care?

[topsecretk9]

have ever reported on what the CIA told them when they called to do their verificatio

IIRC, Matt Cooper requested some do this in his DSSProbation email

"It was 11:07 on a Friday morning, July 11, 2003, and Time magazine correspondent Matt Cooper was tapping out an e-mail to his bureau chief, Michael Duffy. "Subject: Rove/P&C," (for personal and confidential), Cooper began. "Spoke to Rove on double super secret background for about two mins before he went on vacation ..." Cooper proceeded to spell out some guidance on a story that was beginning to roil Washington. He finished, "please don't source this to rove or even WH [White House]" and suggested another reporter check with the CIA.."

Did they?

[A]

Hmmm, Tom. Seems that only the CIA knows whether or not she was covert, and given your poisoning of the well, you've just proclaimed it an impossible task to convince you.

Bravo! Fantastic work.

[clarice]

Should read:

Thamks--You might whisper in his ear that I was the first person to beat the Warergate Special Prosecutor on Appeal--because I was--and it was probably when he was in first grade.
______________

Perhaps he might explain why the material I supported doesn't support my conclusion. But I think that would be too hard.
And perhaps the the reality based community will come to realize that pseudo scandals are no substitute for a platform that will win elections.

[Seixon]

Making specific efforts to conceal her identity... Hmmm... Does that involve letting the Wilsons publish her secret agent name in combination with her being married to former Clinton administration official on several biographies on the internet, in addition to "Who's Who In America"?

Yeah, what an effort!

[Larry]

Clarice, are you now or have you ever been a malicious speculator? Curious minds want to know.

[topsecretk9]

I thought the lefties were all at emptynesters having a rational discussion...wonder who forces them to visit TM?

[clarice]

A "malicious speculator" ? Shhh, Next thing you know Fitz will invent a new interpretation of the law to find it's a crime. I trust if he subpoenas you, you will all say I told you I heard the stuff from reporters but I added I didn't know if it's true.

[topsecretk9]

official on several biographies on the internet, in addition to "Who's Who In America"?

And listed her at the EPIC speech where he admits he is the envoy Pincus and Kristof are writing about. Apparently miss placed the smell test memo.

[Lew Clark]

Oh my God!
Every lawyer I ever worked with is a "right wing flack posing as a lawyer." Because Clarice was kind and polite compared to what I've seen go on in the heat of battle. And since many of them had leftward leaning political views, they’d really be surprised to find they are right wing flacks.

And the CIA told Fitz, Plame was covert thing. In this case the CIA is Tenet and only Tenet. Senior staff members working for the President/Vice President of the United States are accused of violating national security. The Director, and only the Director would/should have made that certification. And if he did, why isn't that the controlling document in Fitzgerald's affidavit. Not I'm the prosecutor and I found out and you just damn well better believe me.

[clarice]

Think how much money we'd save if prosecutors could just issue their findings and didn't have to --like, you know--actually prove things, dude..

[Larry]

Just askin cause Mom said right wing hacks were ok, but don't let her catch me associating with malicious speculators.

[clarice]

My mom said I should go to ed school and then marry a doctor. I didn't listen to her. Moms aren't always right Larry..

[Larry]

I'm sure Mom didn't want me to ever have to go to war, but she's the one who made sure 400 pounds of paper got filed back in '58 so I got my appointment to USAF Academy. The free education part of it appealed to her and Pop. I'm also sure neither figured they'd end up with a TAC-trained killer for a son. One of those watch what you wish for things?

[clarice]

HEH--

[Larry]

Sorry about the OT, folks. Keep after Fitz, Sweety.

[Chants]

There are undoubtedly other provisions of the USC or CFR's containing the phrase "served outside the United States." Probably related to armed services personel or peace corps workers. Case law interpreting those provisions may be useful for the purposes of seditious matriculation. Er, malicious speculation. Whatever.

And is anyone else kind of uncomfortable with the notion that the CIA gets to define who is and who is not "covert"? "We're all covert, now stop talking about us!"

It seems to me that there are two types of "covert" being discussed by all of us seditious speculators: One is "covert" as defined by the IIPA, a statute concerned with whether to impose a prison sentence; the other seems to be an administrative classification, which is concerned primarily with the proper handling of classified information.

Finally, at the Fitz presser he made a point of not making a point one way or the other as to whether Plame was covert. [Interesting that Isikoff asked Fitz the question which elicited that rather unusual discliamer. He really wants to nail down this covert story]. He didn't seem so shy under oath.

[Rick Ballard]

Tom,

Wouldn't Section 426 4(B) provide an understanding of "served""

a United States citizen whose intelligence relationship to the United States is classified information, and - (i) who resides and acts outside the United States as an agent of, or informant or source of operational assistance to, an intelligence agency, or...

I don't think that 4(A)ii's 'served' and 'serving' can be stretched to include a two week jaunt that pertained to normal duties performed within CONUS. It would make it much too easy for the CIA to claim "covert" status which was one of the points the law was trying to overcome.

Sending someone on a two week trip can't be enough to make their status covert.

[clarice]

Even if they could find some evidence of her having "served" abroad in the past 5 years..I'd love to see their evidence on the 2d part "a person whose identity the CIA was making specific efforts to conceal"--How exactly? By letting Wilson list her on the EPIC program as his wife when he admitted he was Kristof and Pincus' source? By not shutting him up? By letting him write his book?

nd when did she cease being covert?

I'm waiting for more that Fitz' findings.

[clarice]

more thaN Fitz' findings.

[MJW]

The wording of IIPA undermines the notion that "traveling on official duty outside the United States" qualifies as "served outside the United States." IIPA applies only to someone "who is serving outside the United States or has within the last five years served outside the United States." If it were meant to apply to something as transient as traveling to another country on official duty, there would be no reason for including the present tense.

It's also telling that, though Fitzgerald attempts to follow the wording of the statutes, he doesn't say "a person whose identity the CIA was making specific efforts to conceal and who had served outside the United States within the last 5 years." He surely knew what the statute said, so why did he vary the wording? No doubt to avoid making a false claim.

[Jeff]

clarice - I see where this line is still up on your article:

Since Kristof’s first meeting was with Wilson and his wife, and because Pincus has long been believed to have known the Wilson’s socially, I’d bet money that in both cases that redacted name person who shopped the tale with Wilson was none other than Valerie Plame herself.
'
If you're still willing to bet money, I'd like to take you up on that, since I think Jim E has elegantly shown that you're so far off base there's not even another name there at all. And if you're no longer willing to bet money, don't you think you, as a responsible journalist outdoing the MSM, ought to change that part of the article? Do you still have confidence that there is a person in that redacted bit, and that it's Wilson's wife? Money where your mouth is, or get correcting with due acknowledgment, isn't that the practice?

[owl]

What's a Kleiman and why should I care?

Dunno but Clarice should not be bothered. Did you check out their blogroll? Funny!

[MJW]

I altered the wording of one section of the previous post, but forgot to change another. I should have said:

The wording of IIPA undermines the notion that "traveled on official duty outside the United States" qualifies as "served outside the United States."

(I know my meaning was clear, I just don't want to look illiterate.)

[topsecretk9]

clarice - I see where this line is still up on your article:

This is where you hit enter at blogspot and rail away on your own blog. But you should take the bet Clarice, I'd curious where the "curious minds [who] want to know lurk outside of JOM land.

[Larry]

Illitering is punishable by fines up to $200 here in FL, MJW.

[kim]

A little side bet here. The point, Jeff, is that who or whatever sits in the redacted portion is intimate with Val's identity, whether it be she, some other reporter, or a qualification of her husband. I'm betting that the redacted part is one of the many keys to this lock, one which Fitz appparently doesn't want opened.
================================================

[kim]

And why should she change her article? "I'm betting" pretty clearly labels something as speculation. She should write a new article if her opinion changes, if it hasn't, what's to correct?

I know. Some of your intemperate posts. They just appeal to those for whom schadenfreunde is daily bread.
=================================================

[kim]

But, what do I know?
====================

[Beto Ochoa]

So it was Joseph Wilson who initially disclosed classified information in his Op-Ed? Is this what the criminal referral was initially about? Now Wilson wants to hide behind the whisteblower law? The Times is playing this card at every turn. Was it the CIA that revealed Plame to Novak? Too many bizarre circumstances. Too many conflicting statements from Fitz'. Too many manipulations by the Wilsons prior to the Niger trip. Too much of too much. It's a sham.

[Anonymous Liberal]

I think you're a bit too skeptical of Fitz, Tom. He's a federal prosecutor with an impecable reputation for integrity. Misrepresenting facts and evidence to a judge is a serious matter, one which would result in instant disbarrment if discovered. It's just not credible to suggest that Fitz lied to Tatel about the nature of Plame's covert status. That would be a huge gamble (because Tatel could easily have asked him to back up his claims) and it goes against everything we know about the guy. Plus, what would his motive be? Why risk your whole career over such a trivial thing?

I'm not saying it's ironclad beyond dispute that Plame was 'covert' within the meaning of the IIPA, but Fitzgerald would not have made those representations unless he had reasonably good evidence that she was in fact 'covert.' The difficult part with the IIPA case is that you have to prove that Libby knew Plame was 'covert.' That's VERY tough to prove.

As for the referral not mentioning the IIPA, I don't think that's unusual. The referral didn't mention the Espionage Act either. I don't think referrals usually mention specific statutes.

As for the reason Fitz won't turn this evidence over to Libby, that's simple. It's irrelevant and unnecessary. Discovery in criminal cases is much more limited than in civil cases. Prosecutors don't turn over information (particularly classified information) unless they are compelled to. Nothing about this case requires Fitz to turn that information over, so he won't. That's how ALL prosecutors operate. If anything, Fitz has been quite generous with Libby's attorneys in the area of discovery.

[Specter]

AL,

Are you really saying prosecutors don't lie? Are you really saying that prosecutors don't engage in prosecutorial misconduct? Are you nutz? Of course they do. If not outright lies, then they will "bend" the words to bias them the way they want the story told. And in most prosecutorial misconduct cases what is the result? Well- the overwhelming statistic is "none was committed." But there is a large number of "yes - misconduct committed, but not material effect on the prosecution - no remedy needed." And finally, albeit a smaller number, "yes - misconduct committed - had material effect - remedy needed." And are these folks disbarred? No - they are promoted or go work in private practice.

[BN]

Let me get this straight...If Plame status wasn't covert it means Libby didn't lie to the Grand Jury? Isn't that a bit like arguing a man charged with assault didn't commit insurance fraud?

What does Plame's CIA status have to do with whether or not Libby lied to the grand jury?

[boris]

He's a federal prosecutor with an impecable reputation for integrity ...

... in the alternate BDS reality where Valerie and Joe spoke truth to power by exposing the fake intel behind a rogue administration’s march to unjust war. Then dastardly Rove and Co. conspired to take revenge on intrepid truthsayers by blowing Valerie’s cover, ruining her career and impugning false motive to their heroic endeavor.

If anything these delusions are less real than Saddam's WMDs. But I guess concocting BS to use against a Republican president is ok since the president "made up" all those lies about WMDs.

[Specter]

BN,

Maybe nothing. But - if she was not "covert" then there should have been no investigation. Flag and a 5 yard penalty before the play began.

[TM]

First, the Anon Lib is not nuts.

Second, per this:

Misrepresenting facts and evidence to a judge is a serious matter, one which would result in instant disbarrment if discovered. It's just not credible to suggest that Fitz lied to Tatel about the nature of Plame's covert status.

I don't think for a minute (or second) that he lied.

But I'll bet he got the memo he wanted/needed from CIA, and did not push hard for more - he got the ammo he needed to seek a subpoena, and, if the time came, he could plan to go back for more to support an indictment and trial.

Since "later" never arrived, he may never have pursued this point.

(He also may have suspected that Abrams would bark up a different tree anyway during the Miller hearing).

So change your focus a bit - do you think the CIA might have, hmm, emphasized certain details selectively? What penalty do they face?

In my world, the CIA (YES, all 30,000 of them! OK, a faction there) wanted to embarrass the Admin, and Fitzgerald wanted enough to wheedle a subpoena out of a judge.

Fitzgerald may not have been a perfect angel on this, but the professional risk is roughly nil, and I am not even sure I would call it unethical - Miller's side certainly had an opportunity to challenge it, and the record is clear that they did not.

So, good job by Fitzgerald. But for objective evidence that Plame was covert we still have nothing more than my friends on the left wearing "I Trust Fitzgerald" buttons.

Set against that is the objective, observed behavior of the CIA that I have noted.

SIDENOTE: Bear in mind, the NSA argument is somewhat the flip of this - the DoJ says all is well, but no one on the left believes it, and all want facts.

You believe every word from Fitzgerald, but nothing from his boss? Why is that?

[maryrose]

AL;
Fitz has to do better than this to convince anyone that Val is covert. He has to back up what he is asserting with facts and statutes. I don't think he made a mistake, I think he was duped into thinking there was a vendetta against Wilson. It so obvious because he doesn't question the Wilsons in a detailed serious manner. Part of Miller refusing to testify was that she knew she didn't have any valuable information. His jailing her was just throwing his weight around and a last desperate attempt to get something on somebody to justify the 2 year investigation. Fitz should fold this charade and admit he didn't make his case.

[Specter]

Oh yea...forgot to add:

Brought to you by your friends at "Scanda Du Jour" and the Democratic Party

[Specter]

TM,

The "nutz" part was only meant to ask if AL really thinks that prosecutorial misconduct does not exist. It does - hundreds of cases every year. To think that someone who spent $1M dollars isn't going to attempt to bend things his way is ludicrous.

[Rick Ballard]

The characterization of Wilson by Fitzgerald as a "whistleblower" after the issuance of the SCCI makes Fitzgerald a liar.

The reference to the "16 words" and pumping press interpretation as an element of "fact" make Fitzgerald a liar, again based upon the SCCI and based upon the Butler report.

The first instance takes him beyond misfeasance to malfeasnace and abuse, the second instance may just be misfeasance but is good evidence that "a search for truth" is a phrase not widely used by Fitz.

[TM]

What does Plame's CIA status have to do with whether or not Libby lied to the grand jury?

It speaks to materiality and motive - eventually, there really ought to have been a crime somewhere in sight for Fitzgerald to have been investigating, and for Libby to have had a reason to lie.

Otherwise, why not indict Libby for lying about what he had for lunch?

That, anyway, will be in the motion for dismissal. I think its a longshot, but that is how the high priced talents racks up billable hours (as Libby well knows).

I think a prosecution for a leak of classified info has always been a possibility (tough statute, though), so no dismissal.

[cathyf]

...making specific efforts to conceal her identity...

Funny thing about lawyerly words. I think the judge meant to say that the CIA was taking concrete efforts, as opposed to simply saying to reporters "No comment" or something otherwise vague. But I think he unintentionally blew the hole right throught the argument. According to Harlow's testimony, and Novak's testimony, the CIA was only making efforts to conceal a very specific tiny piece of Mrs. Wilson's identity -- her maiden name. It was an amazingly incompetent thing to do, since the fact that "Mrs. Ambassador Joe Wilson, CIA employee" equals "Valerie Plame Wilson" was a piece of information available to anyone with access to google.

But anyway, as far as I can tell, Fitzgerald has never asserted that anybody other than Novak who identified Wilson's wife used her maiden name in the identification. And it would be foolish to try to defend the CIA's actions -- claiming that only her maiden name is classified, and her identity is not would fail because the executive orders which establish the classification system specifically rule out easily-available public information as being ineligible for classification.

cathy :-)

[maryrose]

I will anxiously await the apology of Kleiman who at best is hedging his btes in the article. Remember my theory once you start name-calling your argument loses force. Also Isikoff isn't the last word on the true facts of a situation. His "flushing Korans down the toilet story" fell flat on its face because of bad intel. I always take whatever he says or thinks he knows with a grain of salt.

[Gary Maxwell]

Clarice

Wear the sobriquet like a badge of honor. You are messing with their Karma, and after the whipping it took on Alito there are plenty of tender spots. Right wing flack indeed. Somehow that makes it easier to dismiss you I guess. Facts mean nothing to Liberals, as I am sure you have elarned well before now.

[Rick Ballard]

Perhaps Fitzgerald does not tell direct lies to judges?

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 [the Espionage Act] if the information is considered "information respecting the national defense." In order to establish a violation of Title 50, United States Code, Section 421 [the Intelligence Identities Protection Act], 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 had 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.

Perhaps he only lies by implication and weasel wording? What evidence might Miller have provided about what Libby "knew or believed" about Val's "covert" status? Did Fitz believe that Libby might have said: "Now, Judy, this has do be on double secret deep cover 'cause Val's covert."?

Did Fitz hang a "Gone Fishin'" sign on his office door after filing this thing?

[cathyf]

Misrepresenting facts and evidence to a judge is a serious matter, one which would result in instant disbarrment if discovered.

Hmmmm... Here in Illinois, we had a case where a little girl was horribly murdered. The police came up with a pair of suspects, who were duly tried and sentenced to death. They appealed, and the appellate court ordered them a new trial based upon some clear prosecutorial misconduct. The state tried them 3 more times, got a conviction and death penalty each time, and each time was overturned because of yet more prosecutorial misconduct. The 4th and last time was when it was discovered that the prosecutors had been hiding two pieces of information that they had in their possession since the period between the first trial and the first appeal. Which is that somebody else, convicted for a very similar crime that happened 6 months later, had some specific non-public information about the crime that only the perpetrator would know. And that a shoeprint analysis, the only physical evidence which linked the two hapless guys to the crime, had been botched and so there was basically no evidence against them.

The prosecutors in this case were tried. And they got off. Fitzgerald knows very well how seriously (i.e. not very) the criminal justice system takes prosecutorial misconduct -- his office prosecuted the prosecutors, and they lost the case. The prosecutors who got off were blissfully ignorant that anyone would take prosecutorial misconduct seriously because they ran for statewide office (governor and attorney general) as "law-and-order candidates." And then were shocked to discover that while the citizens of IL generally support the death penalty, they think that it should be limited to people who are guilty. And that when evaluating the performance of prosecutors we don't just count belt notches, but are concerned about whether they got the guilty as opposed to random folks off the street.

So, yeah, anyway, Fitzgerald knows very well how serious prosecutorial misconduct is.

cathy :-)

[Cecil Turner]

I think a prosecution for a leak of classified info has always been a possibility (tough statute, though), so no dismissal.

I think so too. Ditto for the prosecutorial misconduct or perjury trap routes . . . there doesn't appear to be enough evidence for the defense to prove it. On the other hand, challenging the materiality of the "misstatements" by Libby on the basis that it wasn't germane to any realistic prosecution is an argument that might be supportable. (But the way I see it, the case would have to go to trial for that to happen.) If I were them, I'd still argue all the possible grounds for dismissal (and lay the groundwork for appeal). Never know . . . might get lucky.

[Anonymous Liberal]

Specter,

Of course I believe there is such a thing as prosecutorial misconduct. But Fitz is perhaps the most well-respected federal prosecutor in the country. He's not the local D.A. of Hazard County. By all accounts he's as straight-laced as they come. He would have everything to lose and nothing to gain by engaging in the sort of misconduct some of the commenters here suggest he as. The idea that he actively misrepresented the facts of a case to a federal judge is more than a little paranoid (not to mention baseless).

As for the notion to CIA may have lied to Fitz, I suppose that's not as ridiculous. I realize that some in the CIA have had their issues with the administration, but again, to suggest that they would trump up false evidence and false affidavits to get administration officials prosecuted for crimes they didn't commit, well, that sounds a bit paranoid to me too.

Finally, I see a lot of commenters here repeating the mantra that there is "no evidence whatsoever" that Libby knew Plame was covert. That's simply not true. If you read through the public documents, there is plenty of circumstantial evidence that Libby knew he was not supposed to be talking about Plame. To take just a few examples, Libby told Ari Fleischer that Plame's CIA connection was very "hush-hush" and "on the QT." He was also very careful when talking to people like Judith Miller about the topic, asking her to attribute the information to a "former Hill staffer." And of course there's the fact that Libby tied himself in knots when questioned by authorities about this. None of this evidence is ironclad, which is probably why Fitz decided not to charge Libby with an IIPA count, but you can't just pretend it didn't exist.

[topsecretk9]

As to the CIA embellishing covertness...

Jeff Goldstein on Rock as NSA leaker (Babbin's report this weekend)... “To be fair to Rockefeller, though, the fact that the intelligence community believes him to be the leaker means he almost certainly cannot be… ”

HEEHEE

[clarice]

Cathy, what an interesting case.

It is hard to convict for prosecutorial misconduct, and the claim that is always leads to disbarment is preposterous.

Nevertheless, when obvious it has consequences.Often begining wih a rebuke.

I'd have to go thru each of the things we know happened here to resolve what a court might do, but at a minimum, if he cannot produce in discovery proof that Plame was a "classified" employee, I think we could all agree statements in the indictment to that affect must be struck and Fitz barred from making such claims at trial.

If he cannot prove in discovery that disclosure of her identity affecting national security than he must be barred from making such claims at trial.

If he deliberately refused to investigate who knew about Plame in the press corps unless those people talked to Libby, Libby must be allowed to fully pursue in discovery who knew and who, if anyone, they told about her.

If the reality based community viewed the law as anything more than politics by other means and had a bit of imagination they would understand why Fitz' conduct was wrong and how much Libby resembles the poor sap in a Kafka book...

[boris]

Plame's CIA connection was very "hush-hush"

Not the same as covert according to IIPA. There's also administrative classified and legally classified where the difference is between "lose your job" and "go to jail".

[clarice]

As to the redacted piece, it makes no sense to have kept redacted a phrase which indicated no more than that Wilson had not signed a confidentiality agreement. That is hardly a secret by now. Therefore, I believe it names who else shopped the story with him.

[Jeff]

So how about clarice? Can I take you up on your bet on whether Plame is identified as a source for Kristof and Pincus in that partly redacted sentence of Fitzgerald's affidavit? Or are you going to issue a correction, especially since your speculation appears to be based on an erroneous factual assumption (that someone is named in there), as you yourself appeared to acknowledge in one of these threads?

[Gabriel Sutherland]

I think the CIA was less interested in attacking the Bush Administration than it was in rebuilding the walls of defense around Langley.

Does anyone believe the CIA signed off on Joe Wilson's NY Times Op/Ed? I certainly do not. I think the Op/Ed forced the CIA to raise the stakes in a hand they never intended to play.

The CIA was giving orders to "hold your fire" while Joe Wilson was loading his weapon.

[Appalled Moderate]

Much of what I see in comment threads on Plame is folks engaging in a whole lot of wishful thinking.

The case at issue right now is not whether (i) Dick Cheney is a stinker, (ii) Ambassador Wilson is the last great truth-teller or the reincarnaton of W.C. Fields, or (iii) whether Plame was covert enough to merit prosecution for the revelation of her name. It is whether Libby lied to Federal investigators and whether those lies impeded the investigation of a possible crime.

It looks like Plame's status as covert is at least an arguable question. Therefore, the investigation was looking into material matters. And Libby's testimony -- if one assumes the indictment's summary of the facts is correct -- inhibited the proscutor's ability in determining whether a crime was committed.

[Gary Maxwell]

Franz Kafka.

I dont remember the book title I just remember reading one of his books and in my youth and thinking how bizarre to be in court and them refusing to tell you what you are charged with but being assured "its really bad."

Then there was the one where the crime was engraved in your back over and over until it killed you. UGH.

[Tom Maguire]

...but again, to suggest that they would trump up false evidence and false affidavits to get administration officials prosecuted for crimes they didn't commit, well, that sounds a bit paranoid to me too.

What false evidence? All Fitzgerald said in his affidavit (that was cited) was that she 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".

The first bit is surely half true - they had stamped "Classified" on her file, but forgot to tell Harlow. Put another way, they were making an effort, but not an effective or comprehensive or credible one.

As to "she has done covert work overseas", who even knows what that means? Is it true if she met with an old contact in Belgium while traveling on her cover? Probably. Does it sound like anything worth prosecuting? No.

[ats]

The professional, career Intel community does not appreciate political appointee meddling, nor do they accept the notion of outside people making their own detirmination as to what puts agents at risk.

[clarice]

How could whatever Libby said have obstructed investigation into whether a crime had been committed when it is obvious there was no crime in the disclosure of Plame's name?

As to how wonderful prosecutors are, the Hyde Amendment was enacted because Congress was concerned about the many instances it had found of "vexatious litigation".
To see what kinds of penalties federal prosecutors face for different kinds of unethical behavior, here's a summary from DoJs Office of Professional Responsibilty. http://www.usdoj.gov/opr/annualreport2003.htm#o3

[boris]

Arguendo the investigation by grand jury into "possible" crimes involving classified information or covert operatives should expect truthful testimony with significant penalties for lying and obstruction. Even if it turns out there was no crime to begin with.

However, pursuing an investigation that appears to invite self serving memory gaps in order to prosecute them as purjury because there is no prosecutable crime but the defendent "has it coming" anyway ...

That's not ok.

[clarice]

Byron York revisits what I did and says,"At this point, with reams of evidence in the case still hidden from public view, it is impossible to say much of anything for sure. And there may in fact be irrefutable evidence that Valerie Wilson "was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last five years." But if there is, Patrick Fitzgerald hasn't shown it yet." http://www.nationalreview.com/york/york200602060919.asp

And the clock is running. This is fish or cu bait time. If he can't produce that evidence in discovery, he can't produce it at trial.

[clarice]

Exactly so, Boris. And doesn't Fitz' citing as fact in his affidavit Wilson's version of events (debunked a month before by the SSCI) indicate just such a motive on his part?

[ed]

Yea, yea, yea, but will you take the bet?

[boris]

indicate just such a motive on his part?

It's so obvious it should be grounds for dismissal by itself.

[boris]

Yea, yea, yea, but will you take the bet?

Hey y'all make a real bet and we'll talk about it.

Pick the redact and make your claim, then we'll make ours and the winner wins by being right.

[ed]

That's not the game. She said she'd put money on it being Plame. The logical counter bet is that it's not Plame. Not another name.

[clarice]

For those of you who have forgotten the SSCI version of he Mission to Niger, TM has it archived here.http://web.mit.edu/simsong/www/iraqreport2-textunder.pdf

The Robertson report has more abou Fitz'"whistleblower".

[boris]

She said she'd put money on it being Plame

Was waiting for that ...

.. I'll put money on my guess too. If you want to put money on YOUR GUESS then STEP RIGHT UP !!!

[cathyf]

If you read through the public documents, there is plenty of circumstantial evidence that Libby knew he was not supposed to be talking about Plame.

Not really. There is plenty of evidence that Libby knew he wasn't supposed to be talking about Wilson's trip, but it's not at all clear that he (or anybody else including Joe Wilson) saw Mrs. Wilson's identity as a CIA employee as the problematic factoid until after the Corn column. From descriptions, there was a paragraph, and the paragraph was marked, but not very specifically. So if the paragraph marked classified contains something like, "...the ambassador was suggested by his wife, who works for the CIA..." what would a reasonable person think was the classified piece(s) of information in the sentence? That Wilson being sent by the CIA was what was classified? That the wife suggested him? That the wife works for the CIA? That when conjugating verbs in the present tense, third person singular, one adds an 's' to the verb (works)?

When you take off your CornWilson-colored glasses, the circumstantial evidence doesn't give any special significance to Mrs. Wilson's identity outside of her role in getting Mr. Wilson the gig.

cathy :-)

[clarice]

I'm not taking any bets..Sue me.I think it is Plame. I'm not sure Fitz knew that or said that.
I cannot see why the suggestion that the redaction says merely that he'd not signed a confidentiality agreement is correct, for as I said there is no reason to continue to redact that. It is the name or names of others who shopped the story with Wilson, and for a variety of reasons, including Kristof's description of his meeting with Plame and the constant references in the early stories of confirmation of Wilson's version of "a CIA analyst" that leads me to believe it is Valerie's name which was redacted.

[Larry]

AL: "Finally, I see a lot of commenters here repeating the mantra that there is "no evidence whatsoever" that Libby knew Plame was covert. That's simply not true." Heck with did Libby know, where is proof that Plame was covert? I've seen nothing convincing. Mom of twins drives daily to Langley is hiding in plain sight?

Even if CIA can somehow cover their asses and explain why she was still covert after more than 5 years state-side, why they sent her hub on the tea-sipping mission without swearing him to secrecy, why they allowed him to talk to reporters about the mission, why they allowed him to write a freakin book about it: If published reports are true, she was already multiply outed, including by Ames, by herself to Joe, by Joe to too many to count and by herself and Joe to Kristof, before any Bush administration official became involved or even knew she existed.

Now, more and more, it appears "Mr impeccably clean" prosecutor has swallowed the kool aid and (like the near-sighted rooster) gone off on a lark.

This whole dadgum thing is a hurricane in a thimble; totally, completely, utterly outrageous and wasteful.

ENOUGH, FITZ! If you're not going to indict the Wilsons and their co-conspirators in the CIA, go the hell home!

[Sue]

Clarice,

Will Libby and his defense get the unredacted version?

[maryrose]

" Inhibited the prosecutor's ability to de
termine if a crime was committed"
I don't see where Libby inhibited Fitz at all. He got access to all the reporters he wanted to talk to and he subpoened all government people he thought were relevant. If Libby had claimed his 5th amendment rights as witnesses in the Marc Rich pardon investigation then one could say Libby was inhibiting progress. It just isn't so even if Fitz's last ditch effort wants it to be.

[clarice]

Libby wasn't a party to the Dow Jones case.I don't think even Dow Jones got the unredacted version. IIRC the Court left some things redacted because they dealt with matters before the gj which Fitz wanted to remain undisclosed.

[Chants]

"If the reality based community viewed the law as anything more than politics by other means... ." -- Clarice Feldman

Classic line.

[Barney Frank]

Gee clarice, you're lucky you didn't say you'd bet your life, or Jeff etal would have their knives drawn.
I'd hate to say "I'd give my right arm for (fill in the blank)" around these kind of folks. They remind me of my 'triple dog dare ya' days in the school yard.

[clarice]

Well, I'm in SF. It's a beautiful morning and I'm pulling myself away from the Board for a while.

I'll check in later. Meanwhile if Kleiman shows up point him to the OPR and the Hyde Amendment and tell him to pretend Libby is Mumia or Tookie of whoever the left thinks never got enough due process from impeccably honest prosecutors.

[Gary Maxwell]

tell him to pretend Libby is Mumia

Free Mumia, Free Mumia Free Mumia is so mucxh more poetic than Free Scooter....

[Ted Barlow]

Tom,

I'm going to address an earlier point. In your own scenario, Fitzgerald went to the CIA and actually obtained evidence that Plame was covert. Right? Your defense is that (a) since prosecutors have been known to overreach, we can't be sure that Fitzgerald didn't overreach, and (b) since some members of the CIA want to to embarass the Administration, we can't be sure that they didn't have a thumb on the scales.

So, what real-world evidence could possibly convince you that Plame was covert? Just about any evidence from a prosecutor, and just about any assertions from the CIA, could be dismissed with the same arguments.

[TM]

That's where I am stuck. Sure, if Libby had confessd that he knew she was covert but he hated Joe Wilson and was out to trash him, then yes. And maybe that is the truth.

But if Libby had simply told a story similar to Russert, Cooper and Miller - no discussion of Plame with Russert, no sourcing to reporters with Cooper and Miller - what is the charge?

Did they even get Libby to testify that, after he spoke to Cheney in June, he believed Plame was covert (only to later forget?)

Did he have anything like that in his squiggly notes?

Did Fitzgerald get Cheney, or anyone else, on record as having told Libby she was covert?

Or is Fitzgerald, in effect, saying, if Libby had moved off of the lapsed memory story, *maybe* he would have confessed to a criminal state of mind (or maybe not), but I will hit him with perjury anyway?

[boris]

you that Plame was covert?

That she went to work everyday using a secret tunnel with combination protected blast doors and motion activated kill zones while disguised as the cookie monster.

That would about do it for me.

[Appalled Moderate]

Boy, I'd like to play poker with you folks. You all are so certain that you know what cards aren't showing that you could be bluffed real easy.

Fitz is showing what he thinks he has to show, and no more. Libby's lawyers are trying to get him to show all of his cards. Lawyering 101.

It's fun to speculate. It's delusion to think you know. But one thing -- don't assume Fitz got himself a personality transplant before coming to Washington. He's out to prosecute his indictment, and, at this juncture, I doubt he's thinking too hard about the underlying allegations that started it all. And, if one wants to play this particular game of Clue, it might be wise to adopt the same mindset.

[Gary Maxwell]

I doubt he's thinking too hard about the underlying allegations that started it all.

You know that lawyering 101 thing? Well my guess its job one for several eager beaver types at Baker and Botts or Jones Day ( Paul Weiss?) to make Fitz think about this and if he doesn't to ask the judge to ever so politely throw his case out.

[Appalled Moderate]

gary maxwell:

I would hope Libby's lawyers would make that motion, research the topic well, and bill Libby for the privelege. It's why they are paid the big bucks.

The question I would have -- and it's not one I have seen addressed anywhere (let alone here) -- is what, really, is the threshhold Fitz has to meet here? Based on TM's digging, he appears to have evidence of a violation of the Espionage Act that he's trying to investigate. Libby's assertions regarding what he told reporters, and what reporters told him totally muddys the waters as to whether a crime was committed. So, if Libby was talking in falsehoods, he's certainly fouling up an investigation into a crime.

[Specter]

My understanding of the rules of discovery - in a criminal case - is that if the prosecution has it, or if any government agency the prosecution works with (police departments, organizations, etc.), has it, the defense is entitled to it. The reason being is that there could be something exculpatory there. It is not up to the prosecutor to decide what is "evidence" or not. When that happens we end up with prosecutorial misconduct. And it does happen - even with big time prosecutors. So for now the game is not "if" but "when" Fitz will turn over everything.

[Extraneus]

That's what was explained in My Cousin Vinny, wasn't it?

[Anonymous Liberal]

To follow up on Appalled Moderate's comment, there seem to be a lot of commenters here who are eagerly jumping to the conclusion that the evidence that has been released publicly is all the evidence there is. That's a silly assumption. The discovery obligations of federal prosecutors are minimal. They don't have to, and almost never do, turn over all of their evidence to the defense. They are especially not going to do that when the evidence at issue is either classified or involves secret grand jury testimony and is not relevant to the charges being prosecuted, as is the case here. Fitzgerald is an incredibly successful prosecutor. It's almost inconceivable that he would have pursued this case this far if there was no evidence at all of underlying illegality.

Plus, it amazing how willing some of the commenters here are to dismiss obvious facts and inferences. For instance, Libby clearly told a number of lies to investigators. Why? Do you really believe this is all attributable to faulty memory? Please. And if no one in the White House had any clue that Plame's CIA affiliation was classified or that she was covert, why didn't they mention her role in this story publicly before the Novak column. Ari Fliescher was being grilled about Wilson's trip for a week following Wilson's op-ed, and all that time he knew about Plame, but he didn't mention it. He walked reporters toward it, but never said anything. Why? The only logical inference is that he knew he wasn't supposed to mention it. And from the latest document dump, we know Ari testified that Libby told him that the information about Plame was very "hush hush" and "on the QT." Does that mean that Libby knew Plame was a covert agent? Not necessarily, but it does suggest that Libby knew her CIA affiliation was not to be discussed publicly. I'd bet that Fitzgerald has a lot of similar circumstantial evidence of Libby's knowledge, but that he felt it wasn't quite enough to have a slamdunk IIPA case. Proving knowledge is very difficult and since Fitz had Libby dead to rights on perjury, he didn't need to attempt the more difficult IIPA prosecution. That's my guess anyway.

[Appalled Moderate]

Specter:

The charges only relate to the truth/falsity of Libby's claims. Whether Plame was covert or could have been covert or isn't covert realtes only to whether there was a legitimate investigation to obstruct. What I admit ignorance of is what "legitimate" is in this context. Love to get any pointers on stuff in this direction. (You know, links, cases, analysis.)

[Anonymous Liberal]

Specter,

You're very wrong. Here's a good primer on federal criminal discovery rules. Here's the intro in case you don't want to follow the link.

Federal procedural rules are dramatically different than the discovery related procedures common to many states. The federal government is not required to "lay out" it's case to the defense and provide their witnesses for deposition. The federal system allows, and arguably promotes, trial by ambush.

This is especially true in this case because the Libby is not even charged with violated the IIPA or Espionage act. Therefore, evidence about such violations is irrelevant. In this case, Fitz doesn't even plan on using that evidence, so he is certainly not to going to turn it over.

[Jim E.]

Anon Lib,

Wow. I had no idea that federal trials were like that in terms of discovery.

[maryrose]

Libby has a right to see grand jury testimony because the grand jury brought the indictments against him. He has a right to know how they reached their conclusions and also the right to defend himself against the possible lies of others or omissions in testimony.

[TM]

So, what real-world evidence could possibly convince you that Plame was covert? Just about any evidence from a prosecutor, and just about any assertions from the CIA, could be dismissed with the same arguments.

Very sly, and I should give props to the earlier "poisoning the well" mention.

I suppose the answer is, "Try me". Some documentts would be more impressive than others, and some witnesses would be more credible than others, but right now we have nothing for me even to scoff at.

Or turn it around - are you really saying that you don't need to see any memos waved at you, with signatures and so on, because ultimately believing or not believing them is an act of faith?

I am sure that is not your view.

Fitz is showing what he thinks he has to show, and no more. Libby's lawyers are trying to get him to show all of his cards. Lawyering 101.

It's fun to speculate. It's delusion to think you know.

Tell Isikoff and his cheering section.

Proving knowledge is very difficult and since Fitz had Libby dead to rights on perjury, he didn't need to attempt the more difficult IIPA prosecution. That's my guess anyway.

Well, yeah - Fitzgerald said as much in his press conference.

Depending on the color of my mood ring, I generally figure Libby panicked in Oct 2003, made up this "I forgot" story, and is trying to ride it out.

But if Fitzgerald really knew he had no underlying crime, Libby's lies shouldn't matter.

Well, as Appalled notes (as well as Cecil Turner, and myself, and no doubt others), there has always been the Espionage Act, so an early dismissal is a longshot.