February 4, 2006
Death Knell for the Case against Scooter Libby?By Clarice Feldman
Court documents were released yesterday which appear to sound the death knell for Special Prosecutor Patrick Fitzgerald's case against Lewis 'Scooter' Libby. Leftists who once eagerly anticipated a "Merry Fitzmas" are likely to find a lump of coal in their stockings next December, before the trial, scheduled for early 2007, ever gets underway.
Discovery requests by Lewis Libby's defense team and the Dow Jones lawsuit to unseal the redacted pages of the Judith Miller appeal are proceeding. It is growing exceedingly obvious that the Special Counsel made a number of misrepresentations to the press and the court.
The sum and substance of his case is now clearly seen to be the difference in the recollections of Libby and those of Matt Cooper of Time Magazine, Judith Miller, then of the New York Times, and NBC's Tim Russert regarding certain conversations. But these conversations do not involve the deliberate 'outing' of a covert agent, did not affect national security and at best involve differing recollections of insignificant matters which should never rise to the level of a criminal prosecution.
Reuters reported yesterday that the case is scheduled for trial in January 2007. But, it may never occur. There are more documents that Fitzgerald is so far unwilling to turn over to the defense.
Fitzgerald told the judge he had turned over all relevant information, including an additional 1,000 pages this week, but Libby's counsel Theodore Wells urged the judge to force Fitzgerald to turn over even more material.
Theodore Wells, is indirectly quoted as saying that
In the meantime, here's more Fitz hooey as revealed in the various papers made public in the past few days.
In Exhibit C of the responses to discovery requests by Libby, the Special Prosecutor indicates only four reporters were questioned: Woodward, Miller, Cooper and Novak. Many more knew that Plame was engaged by the CIA — and have said so — and were never questioned.
One journalist, Mr. Dickerson, is specifically mentioned by Fitz as having learned of this, but the Fitzgerald letter indicates that he learned of that in Africa after July 11, 2003. Perhaps that was an interview by long distance mind reading rays, because Mr. Dickerson denied ever being questioned by Fitzgerald.
He told Raw Story:
Dow Jones sued to publicly release the redacted pages in the Judith Miller appeal case, and a substantial portion of that material was released.
In these newly—released appeal documents Fitzgerald contradicts the claims he made on January 23, 2006 to Libby's counsel that Plame's status and history at the CIA as well as the harm to national security were not material to the charges in the indictment. When he sought Miller's testimony, he made representations to the effect that Plame was within the reach of the IIPA (Agee Act). Here is what Judge Tatel wrote:
The proof for Fitz's claim is not clear. The judge only refers to an affidavit by Fitzgerald. The only reference I can see in the affdavit that sheds a clue as to what Judge Tatel was referring to above appears at footnote 15, p. 28 of this affidavit.
If this footnote wasn't designed to create the impression that Plame was engaged in covert work disclosure of which harmed national defense, it was nevertheless artful—enough a suggestion of that to persuade Judge Tatel.
Fitzgerald made yet a second representation suggesting that Plame was covert at some point [possibly within the five year window required by the Agee Act]and that the disclosure of her name would impact negatively on national security as Judge Tatel explains on p. 80 of the now unredacted portion of the opinion:
The affidavit is an eye—opener in other respects, for it reveals that the investigation was, as I have always claimed, utterly one—sided, that Fitzgerald is at a minimum a gullible fool who fell hook, line and sinker for the notion that Kerry partisan and serial liar Joseph Wilson IV was a 'whistleblower' who deserved special protection by his office.
Here are a few of the gems in this affidavit by Fitzgerald, an affidavit without which Judith Miller would never have been jailed.
Since Kristof's first meeting was with Wilson and his wife, and because Pincus has long been believed to have known the Wilson's socially, I'd bet money that in both cases that redacted name person who shopped the tale with Wilson was none other than Valerie Plame herself.
Here's what Fitzgerald says:
Get it? There was not even an effort here at a fair investigation or even—handed treatment. The prosecutor was only issuing subpoenas to reporters he thought had received leaks from people trying to discredit Wilson's story. Whether or not leaks involved classified material or national security, leaks for other motives to reporters were of no concern to him. Whatever leaks Wilson or Plame or the VIPs or any other partisans made respecting the White House were of no concern to the Special Prosecutor. Just leaks relating to discrediting "whistleblower" Joe.
This is why the criminalization of politics should be stopped. This is why there should never be another special prosecution.
And this is why this case deserves to be dismissed.
Clarice Feldman is an attorney in Washington, DC.