Letter to DoJ Office of Professional Responsibility

Clarice Feldman has mailed today (9/19/06) the following letter to the Department of Justice, Office of Professional Responsibility regarding the conduct of Patrick Fitzgerald, in the matter of the prosecution Lewis "Scooter" Libby. With her permission, we reproduce it in its entirety.

H. Marshall Jarrett, Counsel

Office of Professional Responsibility

950 Pennsylvania Avenue, N.W., Suite 3266

Washington, D.C. 20530

Re: Patrick Fitzgerald's handling of the Plame Case

Dear Mr. Jarrett:

I am writing to suggest that if one is not underway yet, it is long past due to undertake an investigation into the circumstances of the appointment of Patrick Fitzgerald and the way in which he has conducted this matter.

As a general overview of the inappropriate way in which he handled this matter, I reference this article in the Weekly Standard.

As to more specific references to inappropriate conduct not outlined there, I draw your attention to his statements in the press conference announcing the indictment and particularly ask that you read those statements in light of recent developments: It is now apparent that Mr. Fitzgerald knew from the outset of his appointment that the source of the "leak" to Robert Novak was Deputy Secretary of State Richard Armitage.  In spite of this, Mr. Fitzgerald appears to have never fully explored with Armitage whether Armitage had spoken to other reporters in addition to Novak——although it is now known that Armitage spoke about Plame to at least one other reporter, Bob Woodward, and quite possibly other reporters who have testified before the Grand Jury. That conversation happened a full month before the Novak article was published.

Mr. Woodward has volunteered that he himself told other people during the month in question, but it seems that Mr. Fitzgerald was uninterested in whether this provided an alternate path for information to spread through the Washington press corps, including quite possibly other reporters who have testified before the Grand Jury.  Nor did Mr. Fitzgerald seek waivers of confidentiality for any reporters with whom Armitage spoke with regard to Plame (with the possible exception of Novak himself).  The "good leakers" "bad leakers" and "whistleblower" distinctions made by the prosecution are a frank prescription for criminalizing politics and were unprofessional. And the suggestion in those statements that the defendant had deliberately disclosed the identity of  an undercover agent and harmed national security in so doing, prejudiced the defendant, slandered him in the public eye, and far exceeded the evidence in the prosecution's possession and the indictment itself.

Further, the 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.

Finally, I think it important to investigate the circumstances surrounding the extra—statutory appointment of Fitzgerald as Special Prosecutor by Deputy Attorney General James B. Comey.  In view of the now well—known fact that the appointment of Mr. Fitzgerald took place 2—3 months after the true source of the leak was known, I believe it is of great importance to determine

1) whether the appointment was made by arrangement with any members of the Senate Judiciary Committee,

2) whether any members of that Committee were informed by anyone in the Department of Justice or the Special Prosecutor's office of Armitage's admission that he had been Novak's source and,

3) if so, when such disclosure was made and by whom.

I recognize that the special prosecutor is acting in a unique capacity. On the other hand, since the appointment of a Department of Justice employee as Special Prosecutor created a special circumstance that was not contemplated by the Statute, it seems logical that Mr. Fitzgerald should be covered by the operations of your office. In support of that position, I draw your attention to the fact that both Mr. Comey and Mr. Fitzgerald provided affidavits to the Court in support of their own contention that the operations of the Special Prosecutor are under Department of Justice supervision.  If you feel that this is not the case, I would appreciate your disclosing that to me even though I appreciate that non—jurisdictional issues are and should remain non—public during any investigation. Because I am convinced that the above described conduct imperatively demands investigation, I will seek it in another forum if this matter is beyond your jurisdiction.

Sincerely yours,

Clarice Feldman

Clarice Feldman is an attorney in Washington, DC. She has covered the Plame/Wilson affair extensively for American Thinker

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