In September of last year, I asked the Department of Justice to look into several actions of Patrick Fitzgerald in connection with the Libby case suggesting that on their face this conduct seemed unethical. To the best of my knowledge that investigation is continuing.
One of the areas of my concern was the apparent factual misrepresentations he made to the U.S. Court of Appeals in connection with his efforts to force reporters to testify in that case. I wrote:
[T]he affidavit he filed in the Miller appeal was a model of misdirection and disingenuousness clearly designed to mislead the Court. Taken as a whole, the affidavit conflates the Armitage leak to Novak with Libby's quite apparently innocent conversations with other reporters, presenting a materially false impression of the facts the prosecution already had determined. Whether Libby's recollections of those conversations were accurate, or his conversational partners' recollections were more accurate, both sides to each conversation recall something entirely benign.
I ask you to focus attention in particular on paragraphs 9-17 and 81 of that affidavit and read them in light of recently revealed facts: that Armitage told Novak and Woodward earlier and in far greater detail about Plame's role and identity than did Lewis Libby or Karl Rove who were pilloried for three years for innocent, passing comments to reporters who asked THEM about information, reporters who already seem to have known about Plame's identity due to the indiscretions of Plame and Wilson. From these facts alone it is readily apparent that these reporters already knew about Plame's employment and her relationship to Wilson. These obvious facts should have lead an unbiased investigator or prosecutor to examine the source of that knowledge--whether it was due to the well documented indiscretions of Plame and Wilson themselves or whether, like the leak to Novak, their knowledge derived from conversations with Richard Armitage.
Significantly, Mr. Fitzgerald's reference to a Newsday article suggesting that Plame fell within the IIPA failed to note that the source(s) for those claims were Wilson allies in the Veteran Intelligence Professionals for Sanity, a group which ironically was urging intelligence officers to leak classified information. Even more ironically some of them reportedly are connected through interlinked organizational ties with Mr. Agee, whose own deliberate revelations of undercover CIA agents was the very impetus for the Statute. At no time in the unredacted portions of the affidavit did Fitzgerald directly say that Plame met the test of the IIPA - which she clearly does not -but in various ways he deliberately left the Court with that impression in order to effect the rare contempt order and jailing of a reporter.
Further, while portions of the affidavit remain redacted, it doesn't appear that the Prosecution was adequately forthcoming to the Court in revealing that the disclosure to Novak was by someone who did not get that information from Libby or Judith Miller. Indeed, Miller herself may have received it from Armitage as well. Her notes reflect other sources, prior to the June 23 meeting with Libby and she had in the recent past written interviews with Armitage. Fitzgerald's grand jury interrogation of her respecting those sources, moreover, seems to conflict with the agreement he'd reached with her not to ask about sources other than Libby.
Footnote 15, p. 28 of this filing was markedly misleading.
"If Libby knowingly disclosed information about Plame's status with the CIA, Libby would appear to have violated Title 18, USC Sec. 793 if the information is considered information respecting the national defense. In order to establish a violation of Title 50, USCSec.421, it would be necessary to establish that Libby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years. To date we have no direct evidence that Libby knew or believed Wilson's wife was engaged in covert work."
That it is so is clear from this portion of Judge Tatel's opinion in that case.
"Addressing deficiencies of proof regarding the Intelligence Identities Protection Act, the special counsel refers to Plame as person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years -representations I trust the special counsel would not make without support. [Emphasis added]."
There is no indication on the record that the Prosecutor informed the Court that this was a misreading of the affidavit he submitted.
Judge Tatel's trust in the representations of the special counsel--for example, that Plame was a person whom the CIA was making any special efforts to conceal--was misplaced. For example, the agency allowed her to attend a meeting with her husband at the Department of State using her real name, allowed a memo revealing this to be circulated, allowed her husband to focus attention on his trip to Niger in which his wife clearly played a role and therefore drew attention to her position at the agency, which the agency's own public information officer openly revealed to Bob Novak.
Even in the recent Waxman show trial, the co-author of the Intelligence Identities Protection Act, Victoria Toensing, said Plame was not covered by the Act and the Chairman could offer no more proof than did Fitzgerald at the Libby trial --nothing-- that Plame was covered by the Act.
Dow Jones and the Associated Press have sought the release of the redacted portions of the Court's opinion and the affidavit Fitzgerald filed in that case which I found so troublesome.
Today, the Wall Street Journal indicates that Fitzgerald is fighting the release of this information, information it rightly asserts the public is entitled to know, information which I think will prove my suspicion that he misled the Court to obtain this precedential ruling correct:
His demand and the D.C. Circuit ruling set a precedent that may well encourage other prosecutors to force journalists to betray their sources too. His effort also appeared, at least to us, to violate long-standing Justice Department guidelines concerning such pursuit of journalists. His pursuit is all the more puzzling in retrospect because we now know that Mr. Fitzgerald already knew--at the time he was demanding that the reporters betray their sources--that the real leaker was Richard Armitage, not Mr. Libby.
The two reporters he subpoenaed and their lawyers did not know this at the time, however, and if they had it might have changed their arguments or decisions. At a minimum, prosecutors and reporters deserve to know what evidence the D.C. Circuit found so compelling so we can all avoid such future collisions. Congress also has an interest now that it is contemplating a "shield law" to protect media sources.
In his reply to the DJ-AP motion, Mr. Fitzgerald tries to hide behind rule 6(e) of grand jury secrecy. He claims the integrity of grand juries will be compromised by the release. But much of the material was already disclosed during the Libby trial, if not leaked earlier. And the far larger risk to grand jury integrity would be if Mr. Fitzgerald misled the courts about what he knew and when he knew it in order to coerce the two reporters to testify."
It is well past time for the public to know what Patrick Fitzgerald told the Court. I , for one, have every reason to believe he was as disingenuous and loose with the facts with that Court as he was with the public when he announced the indictment and with the jury in his rebuttal argument at the closing of the Libby trial.And I am not shy about saying what the Wall Street Journal hints at: The only conceivable reason Fitzgerald is fighting public disclosure of the redacted portions of the affidavit and opinion is to cover up his own failings in an utterly outrageous prosecution of a perfectly innocent man.