Shorter Patrick Fitzgerald

Valerie Plame Wilson was a covert CIA office for the purposes of the IIPA up until the Novak column blew her cover. But by the time Scooter Libby got finished lying, there was no way of proving that any of the people involved had revealed her identity with the requisite knowledge and intent.

From the sentencing memorandum and supporting documents:

1. Valerie Plame Wilson was a covert CIA officer up until Robert Novak’s column blew her cover. She had seven undercover trips abroad in the five years before the leak, and the CIA continued to take active measures to protect her identity. She was the chief of a unit of the Counterproliferation Division of the Directorate of Operations “with responsibility for weapons proliferation issues related to Iraq.” [Appendix A, p. 2.]

… it was clear from very early in the investigation that Ms. Wilson qualified under the relevant statute (Title 50, United States Code, Section 421) as a covert agent …

[Sentencing Memorandum, p. 12.]

2. Scooter Libby was not the source of that story, which came from Richard Armitage and Karl Rove. [Memo, pp. 11-12]

3. But Libby had earlier unmasked Wilson in two conversations with Judith Miller and two separate conversations with Ari Fleischer and Matt Cooper [Memo, p. 10] .

4. Whether revealing the identity of a covert intelligence officer is a crime under the Intelligence Identities Protection Act depends on what the person or persons doing the revealing knew, what they intended, and whether they were acting in concert (for example, whether Cheney, who informed Libby about Wilson’s CIA employment [p. 10] had instructed Libby to “burn” Wilson).

5. Cheney was aware of the cover-up:

The evidence at trial further established that when the investigation began, Mr. Libby kept the Vice President apprised of his shifting accounts of how he claimed to have learned

about Ms. Wilson’s CIA employment. [p. 11]

6. By the time Scooter Libby was finished lying to the FBI and the Grand Jury, it was impossible to prove that anyone had revealed Wilson’s identity with the requisite state of mind (knowledge and intent). Libby’s lies

made impossible an accurate evaluation of the role that Mr. Libby and those with whom he worked played in the disclosure of information regarding Ms. Wilson’s CIA employment and about the motivations for their actions. [p. 5]

7. In summary:

To accept the argument that Mr. Libby’s prosecution is the inappropriate product of

an investigation that should have been closed at an early stage, one must accept the

proposition that the investigation should have been closed after at least three high-ranking

government officials were identified as having disclosed to reporters classified information

about covert agent Valerie Wilson, where the account of one of them was directly

contradicted by other witnesses, where there was reason to believe that some of the relevant

activity may have been coordinated, and where there was an indication from Mr. Libby

himself that his disclosures to the press may have been personally sanctioned by the Vice

President. To state this claim is to refute it. Peremptorily closing this investigation in the

face of the information available at its early stages would have been a dereliction of duty, and

would have afforded Mr. Libby and others preferential treatment not accorded to ordinary

persons implicated in criminal investigations. [pp. 13-14]

I think that’s got just about every wingnut talking point about this case covered. If any of Fitzgerald’s claims were on shaky grounds, Libby’s lawyers would doubtless challenge them. (As the memo notes [p. 7], those lawyers have kept a careful distance from the garbage being spewed by the scooterlibby.com website, by the people raising the money to pay those lawyers’ bills.) But it would be foolish to expect any sort of retraction, still less apology, from those who have been so tireless in repeating the implausible in defense of the indefensible. (Byron York is already out with a piece that is shockingly dishonest, even by the very low standards of NRO. He mentions that Wilson was being moved into an administrative job, but somehow neglects to mention that she was covert at the time of the leak, as if he and his friends had never tried to cast doubt on that key fact.) Of course this ought to mean that Victoria Toensing never gets another slot on TV. But of course it will mean no such thing. (I hope it will do some damage to the Fred-Thompson-for-President boom; the memo makes Thompson’s speech two weeks ago look pretty silly.)

When what was then known as the Valerie Plame affair first broke, the viciousness and incompetence of the Bush Administration, even or especially in matters of national security, were still matters in active dispute. That made the case worth focusing on. Now that a senior editor of the Weekly Standard is reduced to quibbling about whether or not Bush is really worse than Harding, the burning of a CIA NOC becomes much less important in the greater scheme of things.

Still, the reckless willingness of the political and journalistic right to trash the reputations of people such as Patrick Fitzgerald deserves some attention of its own. And it might even be reasonable to hope that the political price the Beloved Leader would have to pay for pardoning Libby just went up.

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: Markarkleiman-at-gmail.com