February 27, 2006,
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.
Fitzgerald's comments mark the evolution of the CIA leak case from a matter in which Fitzgerald investigated allegations that members of the Bush administration outed covert agent Wilson as part of a plot to discredit her husband, Joseph Wilson an alleged act about which Fitzgerald once said, "the damage wasn't to one person. It wasn't just Valerie Wilson. It was done to all of us" into a case in which Valerie Wilson's job status and any damage done by the disclosure of her identity have become irrelevant, at least in Fitzgerald's view.
Friday's hearing was held to work out conflicts between the Libby defense team and Fitzgerald over the type and amount of evidence that Fitzgerald will allow Libby to have for his defense. Judge Reggie Walton ruled that Libby is entitled to all of his own notes taken during the months before and after the Novak column. But Walton put off a decision on Libby's request for 275 days' worth of the highly classified Presidential Daily Brief, or PDB, although it seems likely that request will ultimately fail. "If I order this, it's going to sabotage the ability of this case to go forward," Walton speculated, suggesting that the White House and the CIA would furiously resist any request for the PDBs.
Then came the question of Valerie Wilson's status at the CIA and the damage, if any, done by the disclosure of her identity. For months now, Fitzgerald has resisted turning over any documents that might show that Wilson's status was classified, or any assessment of the damage resulting from disclosure. At times, Fitzgerald has argued that he did not have the documents, that the documents were none of Libby's business, that the documents were irrelevant to the charges against Libby, and that he did not have any documents to show that Wilson's status was not classified, so that therefore Libby should assume that it was. Finally, in court Friday, Fitzgerald argued that it just does not matter one way or the other.
"Does the government intend to introduce any evidence of damage or her status?" Walton asked.
"We don't intend to offer any proof of actual damage," Fitzgerald responded, adding that he would have more to say on the subject this week in a sealed filing with the court.
Libby attorney Ted Wells objected. At trial, Wells said, Fitzgerald will likely tell the jury that the CIA leak was a bad thing; even if Fitzgerald has no proof of damage, he is sure to tell the jury that the leak could have caused grave damage. Just look in the indictment, Wells pointed out, reading a passage which said:
The responsibilities of certain CIA employees required that their association with the CIA be kept secret; as a result, the fact that these individuals were employed by the CIA was classified. Disclosure of the fact that such individuals were employed by the CIA had the potential to damage the national security in ways that ranged from preventing the future use of those individuals in a covert capacity, to compromising intelligence-gathering methods and operations, and endangering the safety of CIA employees and those who dealt with them.
Judge Walton interrupted. Yes, that's what's in the indictment, the judge said, but he might not allow it to be discussed during the trial. "Just because it's alleged in the indictment doesn't necessarily make it admissible," the judge said.
That's true, Wells answered, but the defense has no way of knowing that ahead of time. It has to prepare for trial on the assumption that the damage allegedly done by Wilson's disclosure, as discussed in the indictment and in Fitzgerald's public comments on the case, will be an issue. Therefore, it needs information about Wilson's status to prepare a defense.
At that point, 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.
Wells's speculation about Wilson's status matches up with descriptions of Wilson's employment offered by some knowledgeable sources. There appears to be no doubt that Wilson was a covert CIA agent at the beginning and during much of her career; people who trained with her and who served with her attest to that. But there are questions about whether Wilson was in any practical way operating undercover in the years leading up to her exposure in the Novak column. The Libby team seemed to be suggesting that Wilson's classified status, if that is what she had, was vestigial that her undercover days were over and she only retained that status on paper.
One knowledgeable source suggests that might be the case, but maintains that being technically undercover was still being undercover. "She was definitely undercover by agency standards at the time in question," the source says. "That was a classified bit of information, and is sufficient as far as the agency is concerned to bring it to the attention of the Justice Department. You can argue whether she should have been, but as far as the agency was concerned it was classified."
One document that might shed light on the situation is the referral sent by the CIA to the Justice Department after the publication of the Novak column. Libby's lawyers have asked for it, but Fitzgerald is refusing that request, too. On Friday, Fitzgerald said he would address the subject later in his sealed filing. But in a letter to the Libby team last Tuesday, Fitzgerald's deputy, Kathleen Kedian, said the special prosecutor will not give up the referral and that Libby simply did not need to know what was in it. "After consultation with the CIA, we advise that we view any such documents in our possession as not discoverable," Kedian wrote. "The documents remain classified and contain information compiled for law enforcement purposes that is neither material to the preparation of the defense, nor exculpatory as to Mr. Libby."
In the end, the judge decided to put off a ruling on the issue until after Fitzgerald files his sealed document, and after Libby's lawyers have a chance to respond to it. What Walton will ultimately decide is unclear. But it is clear what Fitzgerald wants: a CIA leak trial in which the defense is forbidden from learning some critical facts about the CIA leak.
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.