Not so fast!

Fitzgerald implied that Valerie Plame Wilson was a covert agent, and Judge Tatel picked up on that implication. But, despite Mike Isikoff’s report in Newsweek, Fitzgerald didn’t actually say it and Judge Tatel didn’t actually make it a finding of fact.

I think Mike Isikoff, and the blue bloggers who are gleefully quoting his assertion that Patrick Fitzgerald told the D.C. Circuit that Valerie Plame Wilson was in fact covert and had in fact travelled abroad on covert missions within the five-year period before the Administration outed her via Robert Novak, are just a little bit ahead of what the evidence shows.

In fact, the newly-unredacted portion of Judge Tatel’s concurrence (p. 38)refers to a footnote in Fitzgerald’s submission (note 15, p. 28 of the document, p. 30 of the .pdf). The footnote says that, if Libby were to be charged under the Intelligence Identities Protection Act, the government would have to prove that Libby knew or believed that VPW in fact met the criteria under that act &#8212 including being covert, having travelled, and being the subject of active agency efforts to conceal her status &#8212, but that the government has no evidence of Libby’s having had such knowledge or belief.

Of course, it would also be necessary under the act for VPW to have actually had those characteristics: you can’t be guilty of revealing the identity of a covert agent unless the agent in question was actually covert. And undoubtedly Fitzgerald has determined what VPW’s status actually was, since that’s no harder than asking the CIA. So Judge Tatel’s inference from what Fitzgerald said is a reasonable inference.

But it’s not quite the same thing as an assertion of fact by Fitzgerald (who is probably still constrained by the fact that VPW’s then-status remains technically classified, even though it has now been published) or a finding by the judge.

So it seems to me that Isikoff gets closer to the truth than does right-wing flack-posing-as-a-lawyer Clarice Feldman &#8212 in polite circles we don’t accuse prosecutors of deceiving judges, which is a disbarrable offense, without some better basis than malicious speculation, or assume that appellate judges are so gullible they can be taken in by transparently deceptive language &#8212 but that he goes beyond the actual evidence.

It’s fair to say that Fitzgerald’s submission is inconsistent with the wingnut claim that VPW was not covert, but it’s not (quite) fair to say that he asserts the opposite.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: