The LA Times reports that Fitzgerald’s investigators have been canvassing the neighborhood where Valerie Plame Wilson lives to find out whether the neighbors knew of her employment at the CIA before the Novak story ran, and confirming that they didn’t know.
This question certainly wouldn’t matter for perjury/false statements/obstruction charges, so Fitzgerald is still thinking about some substantive offense about revealing secret information. The standard under the Espionage Act is whether the person revealing the information had “reason to believe” that the information could be used to injure the United States. If Rove’s defense to such a charge were to be that the “secret” information was in fact already public — the “no harm, no foul” defense — then Fitzgerald might want to make sure he could knock that defense down before bringing charges.
But the charge to which these questions is most relevant would be the crime of revealing the identity of an intelligence officer under the Intelligence Identities Protection Act.
I’ve been assuming that Rove’s defenders were right in asserting that the IIPA was so hard to break that a prosecution couldn’t be made to stick. Is it just barely possible that Fitzgerald thinks he can sustain charges under the IIPA after all? (The story reports speculation on that point.) Now that would be a surprise, wouldn’t it?
What the investigators found doesn’t sound good for Rove and the rest of the W.H.I.G.:
Critics of the leak investigation have argued that it was an open secret that Plame worked for the CIA; if many people knew that she worked for the agency, it would make prosecution under the 1982 law protecting covert agents impossible.
But neighbors contacted by The Times said they told the FBI agents that they had no idea of her agency life, and that they knew her only as a mother of twins who worked as an energy consultant.
The agents “made it clear they were part of the Fitzgerald investigation, and they were basically tying up loose ends,” said David Tillotson, a Washington lawyer and neighbor, who was among those interviewed Monday.
“They really only had one interest, and that was to know whether Valerie’s identity, on what she did for a living, was known prior to the Novak article. It seemed they were trying to establish clearly that prior to the Novak article she was not widely known on the cocktail circuit,” Tillotson said.
“And I pointed out, we were good friends, we socialized with them, and we just had no idea” until her status was made public in the Novak column, Tillotson said. “To that moment, we had no idea whatsoever that Valerie did anything for the government.”
Some people familiar with national security investigations said they found this week’s questioning to be curious at a time when Fitzgerald appeared to be wrapping up his investigation. They said establishing her covert status should have been a priority at the outset of the case; if her employer was already well known, the prosecutor would not have a case to bring under the agent-protection law.
But others said they suspected that Fitzgerald was just being meticulous, and that he had previously made a judgment about her status and was, in an abundance of caution, looking to further corroborate that belief. The questioning seemed “confirmatory,” said one person who was interviewed but who declined to be identified. Some neighbors said they had been interviewed previously by the FBI.
“They basically asked me if I knew what she did prior to the leak,” said Marc Lefkowitz, another neighbor. The answer, he said, was an unambiguous “no.”
“I knew he was a former ambassador. We had dinner at their house,” Lefkowitz said. “She was just a normal mother of twins.”
The LAT also reports that the investigators have questioned at least one West Wing denizen about Rove’s conversations with Matt Cooper. The reporters interpret that as meaning that Rove is still a target, and that Fitzgerald is trying to gauge the strength of possible defenses raised by Rove’s lawyers. On the other hand, it might also suggest that Fitzgerald is still on the fence about whether he has enough if a case to justify indicting Rove.
A friend who knows an ex-colleague of Fitzgerald’s says that the ex-colleague describes him as both a bulldog and a Boy Scout. On the one hand, Fitzgerald hates being lied to and is more than willing to charge perjury, obstruction, and false statements. On the other, Fitzgerald is completely rigid about what he properly regards as the prosecutor’s ethical duty not to indict if he doesn’t have the evidence.
It says something for Fitzgerald’s integrity and the tightness of his operation that we’re still guessing about whom he might indict, and for what.