November 20, 2005 | National Review Online

Fitzgerald’s Day

The two-year criminal investigation into the “outing” of Valerie Plame Wilson as a CIA employee ended with a whimper rather than the bang so obsessively sought by the Bush administration’s critics. Much remains unknown. Yet special counsel Patrick Fitzgerald’s indictment of a single administration official, I. Lewis “Scooter” Libby, the vice president’s chief of staff, illustrates sharply the chasm between law and politics — between the firmament of provable facts that envelopes the prosecutor’s world and the wild exaggerations for which partisans are known.

The partisans do not fare well in the harsh light of the facts. The Fitzgerald investigation convincingly reveals as bankrupt the tireless tropes of anti-war extremists and their supporters in the media. There was no far-flung administration conspiracy to crush dissent by maliciously leaking a covert agent's identity in retribution for the criticisms her husband, former ambassador Joseph Wilson, had made of the Iraq War.

Rather, during a small number of conversations with a handful of journalists, Libby and one or two other officials made passing references to Plame's working for the CIA. That revelation was not profound: There are thousands of people whose employment by the Agency is well known. Moreover, the intention of those who made the revelation was patently not to harm Plame or our national security. It is questionable that Libby even knew Plame had deep-cover status — something no administration official is alleged to have disclosed (and which the special counsel still declines to confirm). Nor is it clear that Libby knew that the mere fact of Plame's being employed by the CIA was classified.

Libby and other officials conveyed that Plame worked at the CIA in an effort to rebut Wilson's self-indulgent, thoroughly disingenuous, and irresponsibly high-profile claim that the administration lied the country into war by intentionally misrepresenting Saddam's nuclear intentions. Wilson claimed to know this because of his 2002 CIA-sponsored mission to Niger to investigate intelligence reports that Iraq had sought processed uranium there — a mission, he intimated, that was undertaken at Vice President Cheney's request. (It wasn't.) Wilson claimed to have been chosen because of his unique Foreign Service qualifications. In fact, he was an anti-Bush demagogue whose assignment was rigged by a CIA insider, his wife, who was predisposed against the “crazy” notion that Saddam would seek nuclear components in Niger. (A subsequent Senate investigation determined that Wilson's trip bolstered, rather than discredited, the intelligence supporting that notion.)

An administration response in a matter of such public importance — especially after Wilson was, remarkably, permitted by the CIA to write about his mission in a New York Times op-ed — was not only appropriate but urgent. It was incumbent on those making the response, however, to take care that classified information was not compromised, and to be truthful about what they had done if asked later.

It is essentially on the latter score that Libby is alleged to have failed. He has been accused of obstructing justice and lying to the FBI and a federal grand jury. The allegations are serious, but they are not catastrophic for the administration, given their narrow scope and Libby's low public profile. More damaging would have been charges against the president's top political strategist, Karl Rove, who helped craft the administration response to Wilson. But he was not indicted, and it is unlikely that he will be.

Although the indictment has undermined scurrilous libels by administration critics, it has also, unfortunately, generated no small amount of legalistic backbiting by Libby's defenders. These include many Republican partisans who were famously outraged when the Clintonistas criticized special counsels during the Nineties. To be sure, Fitzgerald has given them some openings, but, although it is worth emphasizing that none of the charges against Libby has been proven, the talking points of Libby's defenders smack of a disregard for inconvenient facts. (I note, in the interest of full disclosure, that Pat Fitzgerald was my colleague and trial partner in a long terrorism case. We have been friends for many years.)

On initial reading, the indictment is powerful and suggests that the case against Libby is overwhelming. Without ever addressing the deep secret of whether Plame was a “covert agent,” it asserts that her “employment status was classified.” Two months before her husband's ballyhooed Times op-ed, Wilson began agitating about administration “dishonesty” in the run-up to the war as a (barely) anonymous source, first in an early May 2003 column by Nicholas Kristof of the Times and, during mid-June, in articles in both the Washington Post and The New Republic.

Libby is said to have begun taking notice in late May, when he asked for information about Wilson's Niger trip from the State Department. State's intelligence arm began an inquiry and gave Libby periodic updates. Meanwhile, in the space of four days in June, Libby had conversations with the vice president and three other officials. From those conversations, he learned that Plame's wife worked at the CIA and was involved in arranging Wilson's trip. Two other officials — one identified in the indictment as “Official A,” who, the speculation runs, was Karl Rove — later mentioned the identity of Wilson's wife to Libby.

The indictment intimates that, in the interim, Libby understood the Plame information's sensitivity and reflected on how to handle it. It alleges that, referring to “Wilson's trip” (but not specifically to Plame), Libby told his principal deputy “there would be complications at the CIA in disclosing that information publicly,” and insisted that the matter not be discussed on a non-secure phone line. He told then–White House press secretary Ari Fleischer that Plame's employment at the CIA “was not widely known.” He asked a lawyer in the vice president's office what paperwork would be on file at the CIA if an employee's spouse took an overseas junket. And on a trip with the vice president, aboard Air Force Two, he is said to have “discussed with other officials” what he should say in response to pending media inquiries.

While all that was going on, Libby had conversations with three journalists. Those conversations are noteworthy for both what was allegedly said and what allegedly was not. Libby supposedly began speaking with the New York Times's Judith Miller on or about June 23 — two weeks before Wilson's op-ed ran — and, while disparaging the CIA's selective leaking and Wilson's trip, told her, “Wilson's wife might work at a bureau of the CIA.” On or about July 8, he allegedly agreed to speak to Miller about Wilson only on condition that she source him as a “former Hill staffer” rather than the customary “senior administration official.” It's said he then told her he believed Wilson's wife worked for the CIA. On or about July 12, in addition to telling Miller again that Wilson's wife worked for the Agency, Libby is alleged to have confirmed for Matthew Cooper of Time magazine that “Wilson's wife was involved in sending Wilson on the trip.” Meanwhile, on or about July 10, Libby spoke with NBC's Tim Russert. The indictment is adamant that “Libby did not discuss Wilson's wife with Russert” — although it does indicate that Libby complained about coverage he was receiving from an MSNBC reporter, and does not say that the conversation was unrelated to Wilson and Niger.

The first media report that Plame was a CIA “operative” appeared in Robert Novak's now-infamous July 14 column, sourced to two anonymous administration officials. The column prompted outrage on the left (even among those heretofore not known for their worries about national security) and at the CIA, which referred the matter to the Justice Department and, ironically, appears itself to have leaked this classified referral, without consequence. Libby was interviewed by the FBI in October and November 2003, and later — after Justice turned the matter over to Fitzgerald's independent probe — testified before the grand jury twice in March 2004. He is accused of having told investigators that he did not know Plame worked for the CIA until being so informed by Russert around July 10, 2003. He said he had a distinct recollection of being “surprised by” Russert's purported statement that “all the reporters” knew where Plame worked. He is also said to have falsely denied having spoken with Miller about Wilson's wife on or about July 8, and to have falsely claimed he told Cooper on or about July 12 that “reporters were telling the administration that Wilson's wife worked for the CIA” but that he (Libby) “did not know if this was true.”

The narrative seems damning: Libby supposedly went to school on Wilson, learned classified information about his wife that he well knew was sensitive and shouldn't be disclosed, disclosed it anyway in a manner transparently designed to leave no fingerprints, and then lied about it. But, like most legal matters, it's more complicated than that.

To begin with, Libby is not charged with leaking classified information. Moreover, though the indictment is suggestive of a sustained scheme to mislead the investigation into what Libby knew about Plame, when he knew it, how he learned it, and what he did with it, the actual accusations are considerably thinner. Libby is principally charged with lying not about his general knowledge, deliberations, and exertions, but about his descriptions of three isolated conversations with journalists. This has given rise to three avenues of attack by Libby sympathizers.

The first and most ardent is that because Libby isn't charged with leaking classified information he mustn't have done so, and thus has been smeared by the prosecutor. On this, the special counsel has given the Libby supporters some ammunition. Deviating from what has been admirable restraint, Fitzgerald — while stressing at a press conference that his public comments should be limited to the four corners of the just-filed indictment — declared that Plame had been a “CIA officer” whose “cover was blown.” This, he said, justified a prosecution to vindicate the public interest in national security. Those claims, however, are not in the indictment itself. It doesn't allege that Plame was a CIA officer whose cover was blown — just that she was a CIA employee, which affiliation was classified but was nonetheless discussed with reporters. That this did not obviously imperil national security is inferable from the fact that no harm is specifically alleged in the indictment (although there is a general statement that exposing CIA employment can sometimes harm the U.S.) and that the grand jury didn't charge Libby with violating the 1917 Espionage Act, which criminalizes unauthorized disclosures of classified material.

But this critique does not come close to establishing that Fitzgerald set out to smear Libby, and in fact the opposite may be true: Fitzgerald may have given Libby an enormous benefit of the doubt. Plainly, if what Fitzgerald says is true, which a trial may prove it to be, the charges against Libby are not an unfair slander. The Plame information was classified, and Libby does appear to have disclosed it to reporters. That is leaking classified information. Is it actionable leaking? Maybe, maybe not. It would depend on whether Libby acted knowingly and willfully, a possibility the indictment implies but does not allege. So Fitzgerald has a potential Espionage Act violation but has elected not to charge Libby for it. He has given Libby the close call on criminal intent, and refrained from overzealous enforcement that could turn the Espionage Act into a loathsome “official secrets” law that would permit the government to suppress dissent and evade accountability by capriciously branding any uncomfortable topic “classified.” In any event, with Libby having ostensibly performed every act necessary to leak classified information, it is a bit much for his apologists to cry foul over the prosecutor's saying so.

The second theme of Libby's defenders follows from their first. Since Libby didn't really leak classified information, he had no reason to lie about it, so he mustn't have done that either. This facile conclusion ignores the obvious. Not being charged with something is a far cry from not having done it — Bill Clinton was never criminally charged with perjury and obstruction of justice. Further, one needn't know with apodictic certainty that one is criminally culpable in order to have a motive to protect oneself with a cover-up. Libby appears to have had abundant reason to be concerned that he had done something illegal, whether or not charges against him could be proved beyond a reasonable doubt. Besides, politicians have incentive to lie about lots of things that aren't crimes. It would have been politically damaging for an administration whose raison d'être is national security to be revealed as reckless in its handling of classified information.

Finally, Libby's champions contend that his misstatements are best understood as innocent failures of recollection by a busy public official pressured to remember three out of hundreds of media conversations. Plainly, they have a point. That is what a trial, if there is one, will determine. But that's not what these folks were saying during the Clinton scandals.

More to the point, Libby is not said just to have failed to report to the grand jury something that happened. He is accused, rather, of making up something that didn't: a yarn about being “taken aback” by purported Plame chatter from Tim Russert. The indictment is categorical: It isn't simply that Russert remembers things differently, but rather that this topic was never discussed. The force of that charge leads those of us who follow these sorts of things to suspect that the careful Fitzgerald has some bullet-proof evidence — something beyond Russert's say-so — to back him up.

If he does, that's serious business. It is perfectly appropriate for the administration's supporters to wonder aloud at the patent inequities here. Why is Libby called to account while Wilson, a demonstrable fraud, seems immune? How is it that the CIA can classify as a national secret a simple employment tie that many people know about (even if it's not “common knowledge”), but not so classify an overseas mission to determine whether an enemy against whom the nation is readying for war is developing nuclear weapons? Good questions — but not ones that justify obstructing an official investigation. That was wrong ten years ago, and it's wrong now.

Mr. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies and an NRO contributor.