February 5, 2006
Death Knell for the Case Against Scooter Libby?
By Clarice Feldman
Court documents
were released yesterday which appear to sound the death knell
for Special Prosecutor Patrick Fitzgerald’s case against
Lewis “Scooter” Libby. Leftists who once eagerly anticipated
a “Merry Fitzmas” are likely to find a lump of coal
in their stockings next December, before the trial, scheduled
for early 2007, ever gets underway.
Discovery
requests by Lewis Libby’s defense team and the Dow Jones
lawsuit to unseal the redacted pages of the Judith Miller appeal
are proceeding. It is growing exceedingly obvious that the Special
Counsel made a number of misrepresentations to the press and the
court.
The sum and
substance of his case is now clearly seen to be the difference
in the recollections of Libby and those of Matt Cooper of Time
Magazine, Judith Miller, then of the New York Times,
and NBC’s Tim Russert regarding certain conversations. But
these conversations do not involve the deliberate “outing”
of a covert agent, did not affect national security and
at best involve differing recollections of insignificant matters
which should never rise to the level of a criminal prosecution.
Reuters reported
yesterday that the case is scheduled for trial in January 2007.
But, it may never occur. There are more documents that Fitzgerald
is so far unwilling to turn over to the defense.
Fitzgerald
told the judge he had turned over all relevant information, including
an additional 1,000 pages this week, but Libby’s counsel
Theodore Wells urged the judge to force Fitzgerald to turn over
even more material.
“We
believe there are thousands and thousands and thousands of pages
that Mr. Fitzgerald is in possession of that he has decided
not to give to us,” Wells said.
Theodore
Wells, is indirectly quoted as saying that
“in
the next three weeks he expects to file a motion arguing that
the indictment should be dismissed.”
In the meantime,
here’s more Fitz hooey as revealed in the various papers
made public in the past few days.
In Exhibit
C of the responses to discovery requests by Libby, the Special
Prosecutor indicates only four reporters were questioned: Woodward,
Miller, Cooper and Novak. Many more knew that Plame was
engaged by the CIA – and have said so – and were
never questioned.
One journalist,
Mr. Dickerson, is specifically mentioned by Fitz as having learned
of this, but the Fitzgerald letter indicates that he learned of
that in Africa after July 11, 2003. Perhaps that was an interview
by long distance mind reading rays, because Mr. Dickerson denied
ever being questioned by Fitzgerald.
He told Raw
Story:
“I
didn’t know I was mentioned in the court filings until
I saw it on the web,” he said. “I’ve never
been contacted by anyone in Fitzgerald’s office.”
(Hat tip: Just One
Minute)
Dow Jones
sued to publicly release the redacted pages in the Judith Miller
appeal case, and a substantial portion of that material was released.
In these
newly-released appeal documents Fitzgerald contradicts
the claims he made on January 23, 2006 to Libby’s counsel
that Plame’s status and history at the CIA as well as the
harm to national security were not material to the charges
in the indictment. When he sought Miller’s testimony,
he made representations to the effect that Plame was within the
reach of the IIPA (Agee Act). Here is what Judge Tatel wrote:
“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.
(8/27/04 Aff. at 28 n.15.) In addition, Libby said that Plame
worked in the CIA’s counterproliferation division”
(I-53-55, 245- 46, p.80) [emphasis added]
The proof
for Fitz’s claim is not clear. The judge only refers to
an affidavit by Fitzgerald. The only reference I can see in the
affdavit that sheds a clue as to what Judge Tatel was referring
to above appears at footnote 15, p. 28 of this affidavit.
“If
Libby knowingly disclosed information about Plame’s status
with the CIA, Libby would appear to have violated Title 18,
USC,Sec. 793 if the information is considered information respecting
the national defense. In order to establish a violation of Title
50,USCSec.421, 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 Wilson’s
wife was engaged in covert work.”
If this footnote
wasn’t designed to create the impression that Plame was
engaged in covert work disclosure of which harmed national defense,
it was nevertheless artful-enough a suggestion of that
to persuade Judge Tatel.
Wasn’t
it?
Fitzgerald
made yet a second representation suggesting that Plame
was covert at some point [possibly within the five year window
required by the Agee Act]and that the disclosure of her name would
impact negatively on national security as Judge Tatel explains
on p. 80 of the now unredacted portion of the opinion:
“Most
telling of all, Harlow, the CIA spokesperson, though confirming
Plame’s employment, asked Novak to withhold her name,
stating that ‘although it is very unlikely that she will
ever be on another overseas mission . . . it might be embarrassing
if she goes on foreign travel on her own’ (II-168-69),
a statement that strongly implies Plame was covert at least
at some point. 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.”
The affidavit
is an eye-opener in other respects, for it reveals that the investigation
was, as I have always claimed, utterly one-sided, that Fitzgerald
is at a minimum a gullible fool who fell hook, line and sinker
for the notion that Kerry partisan and serial liar Joseph Wilson
IV was a “whistleblower” who deserved special protection
by his office.
Here are
a few of the gems in this affidavit by Fitzgerald, an affidavit
without which Judith Miller would never have been jailed. Paragraph
9:
“Wilson,
who was not a government employee at the time of the trip and
[REDACTED] spoke to several reporters including Nicholas Kristof
of the New York Times and Walter Pincus of the Washington Post….”
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. Paragraph 94 should, however, prove the death knell for
the case. That’s because it establishes beyond doubt the
prosecution’s predisposition and the one-sided
nature of this “investigation.”
Here’s
what Fitzgerald says:
“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 early 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.”
Get it? There
was not even an effort here at a fair investigation or
even-handed treatment. The prosecutor was only issuing
subpoenas to reporters he thought had received leaks from people
trying to discredit Wilson’s story. Whether or
not leaks involved classified material or national security, leaks
for other motives to reporters were of no concern to him.
Whatever leaks Wilson or Plame or the VIPs or any other partisans
made respecting the White House were of no concern to the Special
Prosecutor. Just leaks relating to discrediting “whistleblower”
Joe.
This is why
the criminalization of politics should be stopped. This is why
there should never be another special prosecution.
And this
is why this case deserves to be dismissed.
Clarice
Feldman is an attorney in Washington, DC and writes for
The American Thinker.
