February 23, 2006,
Tomorrow CIA leak prosecutor Patrick Fitzgerald and indicted former Cheney chief of staff Lewis Libby will meet in a Washington courtroom to fight over what evidence will be at the center of Libby's trial on perjury, obstruction, and false statements charges. In the latest exchange of court motions between the two sides, Libby's defense team is repeating its request for evidence concerning perhaps the two most fundamental questions in CIA leak investigation: Was Valerie Wilson a secret CIA officer when her name appeared in Robert Novak's famous July 14, 2003, column, and what damage did the exposure of her identity do to national security? Fitzgerald has so far refused to provide any evidence touching on either question, at times shifting his reasoning as Libby's lawyers pressed their case.
During his October 28, 2005 news conference announcing the Libby indictment, Fitzgerald said flatly, "I will confirm that [Wilson's] association with the CIA was classified" at the time covered by the investigation. The indictment itself says that "Valerie Wilson was employed by the CIA and her employment status was classified."
Last December, Libby's lawyers asked Fitzgerald to provide "all documents, regardless of when created, relating to whether Valerie Wilson's status as a CIA employee, or any aspect of that status, was classified" in the time period before the Novak column was published. Fitzgerald refused, saying that "We have neither sought, much less obtained, 'all documents, regardless of when created, relating to whether Valerie Wilson's status as a CIA employee, or any aspect of that status, was classified'" during that period.
Later, Libby's team repeated the request. Fitzgerald again refused, saying, in effect, that the information was none of Libby's business:
The defense also seeks all documents "relating to whether Valerie Wilsonís status as a CIA employee, or any aspect of that status, was classified at any time between May 6, 2003 and July 14, 2003." Mr. Libby predicates his request on a single reference in the indictment to the fact that Ms. Wilsonís employment status was classified during the relevant time. The defendant overlooks the simple fact that Ms. Wilsonís employment status was either classified or it was not. If the government had any documents stating that Ms. Wilsonís employment status was not classified during the relevant time and we do not we would produce them though not strictly required to under the doctrine of Brady v. Maryland. The defense is not entitled to every document mentioning a fact merely because that fact is mentioned in the indictment.
It would perhaps be an understatement to say that Fitzgerald's answer left the Libby team unsatisfied. Now, in a motion filed on Tuesday, Libby is trying one more time:
The government argues that "Ms. Wilson's employment status was either classified or it was not," and states that it if it possessed any documents stating her employment was not classified, it would produce such documents. What Mr. Libby seeks, however, is all documents supporting the indictmentís allegation that her employment was classified, as well as those showing it was not. To date, the defense has not received a single document showing that Ms. Wilsonís employment was classified information. Further, the government has told us that it "neither sought, much less obtained," from the CIA the documents we requested with respect to Ms. Wilson's employment status. This assertion calls into question how the government can represent to the Court that no [relevant] material on this issue exists. [emphasis in the original]
In addition, Libby argued, Fitzgerald's refusal to provide information confirming Wilson's status touches on fundamental questions of fairness:
By refusing to provide any documents confirming the allegation in the indictment that Ms. Wilsonís employment status was classified during the relevant time period, the government has in effect demanded that the defense concede that this allegation is correct. Such a demand is flatly inconsistent with the basic principles of our criminal justice system. The defense is entitled to investigate this allegation and determine whether any factual support for it exists.
Fitzgerald is also continuing his refusal to provide the Libby defense team with any assessment of the damage done to national security by the exposure of Wilson's identity. Fitzgerald at first refused because, he said, no "formal assessment" of the damage had been done. Later, he argued that he had never claimed any damage had been done:
The defendant also argues that he is entitled to information about any assessment of the damage caused by the disclosure of Ms. Wilsonís employment because "potential harm to national security was a focus of the governmentís investigation." This claim is illogical. First, there were many things that were investigated that are not reflected in the charges in the indictment. The actual as opposed to potential damage caused by the outing of Ms. Wilson is not alleged in the indictment, nor was it a focus of the grand jury investigation. The indictment alleges only that the outing of CIA employees could cause damage. The actual damage resulting from uncharged conduct is irrelevant to whether the defendant lied about his conversations with reporters. [emphasis in the original]
In their latest brief, Libby's defense lawyers argue that the question of damage is central to the case, that Fitzgerald himself had said so during his October news conference, and that it is hard to imagine the issue not coming up at trial:
The government argues that evidence concerning whether any damage resulted when Ms. Wilson's identity was "leaked" should not be provided to the defense because a claim of actual damage is not explicitly alleged in the indictment. The defense has every right to anticipate that the government will attempt to portray the disclosure in question as a damaging breach of national security at trial. This expectation is reinforced by the Special Counselís statement at his October 28, 2005 press conference that when Ms. Wilsonís affiliation with the CIA was made public, "the damage wasnít to one person. It wasnít just Valerie Wilson. It was done to all of us."
That is where the argument stands today. In each instance, Fitzgerald's underlying argument is that Libby is charged with perjury, obstruction, and making false statements, and the question of Wilson's status is not relevant to the question of whether Libby lied under oath. But the issue of Valerie Wilson's status underlay every aspect of the CIA leak investigation; indeed, it was presumably the threshold question that Fitzgerald had to answer before proceeding with the probe. Why he has so far refused to provide any information to Libby's team is simply not clear. Perhaps tomorrow's court session will shed some light on that.
Byron York, NR's White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President and Why They'll Try Even Harder Next Time.