February 17, 2007 | The Washington Post

Trial in Error

Could someone please explain to me why Scooter Libby is the only person on trial in the Valerie Plame leak investigation?

Special Counsel Patrick J. Fitzgerald charged Vice President Cheney's former chief of staff with perjury on the theory that Libby had a nefarious reason for lying to a grand jury about what he told reporters regarding CIA officer Plame: He was trying to cover up a White House conspiracy to retaliate against Plame's husband, Joseph C. Wilson IV. Wilson had infuriated Vice President Cheney by accusing the Bush administration of lying about intelligence in the run-up to the Iraq war.

Fitzgerald apparently concluded that a purported cover-up was sufficient motive for Libby to trim his recollections in a criminal way. So when Libby's testimony differed from that of others, it was Libby who got indicted.

There's a reason why responsible prosecutors don't bring perjury cases on mere “he said, he said” evidence. Without an underlying crime or tangible evidence of obstruction (think Martha Stewart trying to destroy phone logs), the trial becomes a mishmash of faulty memories in which witnesses can seem as guilty as the defendant. Any prosecutor knows that memories differ, even vividly, and each party can be convinced that his or her version is the truthful one.

If we accept Fitzgerald's low threshold for bringing a criminal case, then why stop at Libby? This investigation has enough questionable motives and shadowy half-truths and flawed recollections to fill a court docket for months. So here are my own personal bills of indictment:

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THIS GRAND JURY CHARGES PATRICK J. FITZERALD with ignoring the fact that there was no basis for a criminal investigation from the day he was appointed, with handling some witnesses with kid gloves and banging on others with a mallet, with engaging in past contretemps with certain individuals that might have influenced his pursuit of their liberty, and with misleading the public in a news conference because . . . well, just because. To wit:

· On Dec. 30, 2003, the day Fitzgerald was appointed special counsel, he should have known (all he had to do was ask the CIA) that Plame was not covert, knowledge that should have stopped the investigation right there. The law prohibiting disclosure of a covert agent's identity requires that the person have a foreign assignment at the time or have had one within five years of the disclosure, that the government be taking affirmative steps to conceal the government relationship, and for the discloser to have actual knowledge of the covert status.

From FBI interviews conducted after Oct. 1, 2003, Fitzgerald also knew that then-Deputy Secretary of State Richard L. Armitage had identified Plame as a CIA officer to columnist Robert D. Novak, who first published Plame's name on July 14, 2003.

· In January 2001, Libby was the lawyer for millionaire financier Marc Rich, whom President Bill Clinton pardoned shortly before leaving office. Fitzgerald, who was then an assistant U.S. attorney in the southern district of New York, and U.S. Attorney James Comey spearheaded the criminal investigation of that pardon.

· Fitzgerald jailed former New York Times reporter Judith Miller for almost 90 days for not providing evidence in a matter that involved no crime. Yet the two were engaged in another dispute: Fitzgerald wanted Miller's phone records, contending that by contacting an Islamic charity, she had alerted it to a government search the day before it happened.

· Fitzgerald granted immunity to former White House press secretary Ari Fleischer without ever asking what he would testify to; he permitted NBC News bureau chief Tim Russert to be interviewed in a law firm office with his lawyer present, while Novak was forced to testify before the grand jury without counsel present.

· Armitage, like Bush adviser Karl Rove, forgot one conversation with a reporter. Fitzgerald threatened Rove with prosecution; Armitage bragged that he didn't even need a lawyer.

· In violating prosecutorial ethics by discussing facts outside the indictment during his Oct. 28, 2005, news conference, Fitzgerald made one factual assertion that turned out to be flat wrong: Libby was not “the first official” to reveal Plame's identity.

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THIS GRAND JURY CHARGES THE CIA for making a boilerplate criminal referral to cover its derrière.

The CIA is well aware of the requirements of the law protecting the identity of covert officers and agents. I know, because in 1982, as chief counsel to the Senate intelligence committee, I negotiated the terms of that legislation between the media and the intelligence community. Even if Plame's status were “classified”–Fitzgerald never introduced one piece of evidence to support such status — no law would be violated.

There is no better evidence that the CIA was only covering its rear by requesting a Justice Department criminal investigation than the fact that it sent a boiler-plate referral regarding a classified leak and not one addressing the elements of a covert officer's disclosure.

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THIS GRAND JURY CHARGES JOSEPH C. WILSON IV with misleading the public about how he was sent to Niger, about the thrust of his March 2003 oral report of that trip, and about his wife's CIA status, perhaps for the purpose of getting book and movie contracts.

· On July 6, 2003, Wilson appeared on “Meet the Press” hours after the New York Times published his op-ed “What I Didn't Find in Africa,” which accused the administration of twisting intelligence to exaggerate the Iraq threat. The piece suggested that Wilson had been sent to Niger at the vice president's request to look into foreign intelligence reports of Iraqi efforts to obtain yellowcake uranium. Wilson told Andrea Mitchell, “The office of the vice president, I am absolutely convinced, received a very specific response to the question it asked and that response was based upon my trip there.” But Cheney said he had no knowledge of Wilson's trip and was never briefed on his oral report to the CIA.

· Wilson has claimed repeatedly — including on MSNBC's “Countdown” on July 22, 2005 and at the National Press Club on Oct. 31, 2005 — that he was sent to Niger because of his “specific skill set” and not because of his wife. But Senate intelligence committee documents indicate that Plame suggested his name for the trip, as did a State Department report and a CIA official who briefed the vice president's office.

· Although Wilson has repeatedly claimed that neither his trip nor his oral report was classified, the CIA sent documents about the trip marked “classified” to the vice president's office and to date has not released the essence of the oral report. A source later identified as Wilson claimed in a Washington Post article on June 12, 2003, that documents related to an alleged Iraq-Niger uranium deal were forged because “the dates were wrong and the names were wrong.” When Senate intelligence committee staff questioned that, as Wilson had never seen the documents, he responded that he may have “misspoken.”

· Wilson has continually played coy about his wife's status. On July 16, 2003, David Corn wrote in the Nation: “Did senior Bush officials blow the cover of a U.S. intelligence officer working covertly in a field of vital importance to national security — and break the law — in order to strike at a Bush administration critic and intimidate others?” Corn acknowledged talking to Wilson but said that Wilson refused to talk about his wife. Yet Corn also published Wilson's rather unsubtle suggestion: “Naming her this way would have compromised every operation, every relationship, every network with which she had been associated in her entire career.”

Plame was not covert. She worked at CIA headquarters and had not been stationed abroad within five years of the date of Novak's column.

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THIS GRAND JURY CHARGES THE MEDIA with hypocrisy in asserting that criminal law was applicable to this “leak” and with misreporting facts to wage a political attack on an increasingly unpopular White House. To wit:

· Notwithstanding the fact that major newspapers have highfalutin', well-paid in-house and outside counsel who can find the disclosure law and even interpret it, the following publications called for a criminal investigation:

· The Atlanta Journal-Constitution called the appointment of a special independent counsel “absolutely necessary” because the allegations “come perilously close to treason” — even though treason is a constitutional crime requiring two witnesses and the levying of war against the United States.

· The Boston Globe wrote: “This is a case that clearly calls for the appointment of an independent counsel.”

· The New York Times naively approved the investigation if it “focused on the White House, not on journalists.” It later applauded Fitzgerald's appointment, declaring that he must be allowed “to use the full powers of a special counsel.”

· The Washington Post refrained from expressing shock at a “leak.” But The Post had contributed to the fray by reporting on Sept. 28, 2003, that “two White House officials called at least six Washington journalists and disclosed the identity and occupation of Wilson's wife . . . to undercut Wilson's credibility.” This article was the likely impetus for the other papers' editorials.

As recently as a week ago, the media were displaying their prejudice in this case. On “Meet the Press,” journalists lamented that the Libby trial was revealing how government officials can use their relationships with reporters to plant stories that hurt their political enemies. Where was the voice at the table asking, “Didn't Wilson also use the media with his assertions in the New York Times and The Post?”

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THIS GRAND JURY CHARGES ARI FLEISCHER because his testimony about conversations differs from reporters' testimony, just as Libby's does. To wit:

· The former White House press secretary testified before the grand jury and at the trial that he had revealed Plame's identity to two reporters — John Dickerson, then of Time magazine, and NBC News's David Gregory. Dickerson denied it. Gregory won't comment.

· On cross-examination, Fleischer testified that it was “absolutely correct” that he did not tell The Post's Walter Pincus on July 12, 2003, that Wilson's wife worked at the CIA. Pincus emphatically contradicted this, swearing that in the middle of a discussion, Fleischer “swerved off,” asking, “Why do you keep writing about Joe Wilson and Joe Wilson's trip? Don't you know his wife worked for the CIA as an analyst for weapons of mass destruction and arranged for it?”

So indict Fleischer. He contradicted Pincus as materially as Libby contradicted Russert or Time's Matthew Cooper, the two witnesses who were the basis for the Libby indictment. Whoops! Can't do that. Fitzgerald gave Fleischer “pig in a poke” immunity. That's an old prosecutor's phrase meaning that Fitzgerald granted Fleischer immunity from prosecution without knowing what Fleischer would say. No problem — indict Pincus. His testimony differed from Fleischer's and he didn't ask for immunity.

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THIS GRAND JURY CHARGES RICHARD L. ARMITAGE with intentionally keeping silent about being the first person to reveal Plame's identity to reporters and with falsely telling the public that he did so at Fitzgerald's request because he did not want to be publicly embarrassed. To wit:

· Novak testified that Armitage told him on July 8, 2003, that it was Wilson's wife, “Valerie,” who sent him on the Niger trip. Not until September 2006 did Armitage release Novak to reveal publicly that he had been the columnist's source.

· The Post's Bob Woodward testified that Armitage told him on June 13, 2003, rather colorfully: Wilson's “wife's a [expletive] analyst at the agency.” When the FBI interviewed Armitage on Oct. 2, 2003, he apparently forgot about his taped interview with perhaps the most famous journalist of this generation. In November 2005 Armitage released Woodward from their confidentiality agreement — but only to tell Fitzgerald, not the rest of us, how he had learned of Plame's identity.

· Armitage attributed his more than three years of silence to Fitzgerald's request that he not discuss the matter with anyone. But Fitzgerald was not appointed until Dec. 30, 2003, three months after Armitage now says he realized that he was Novak's source.

· Despite Armitage's claim as to why he kept silent, he yakked to his subordinate Marc Grossman about what he had said in his FBI interview — conveniently, the night before Grossman's own FBI interview.

THIS GRAND JURY CHARGES THE U.S. JUSTICE DEPARTMENT with abdicating its legal and professional responsibility by passing the investigation off to a special counsel out of personal pique and reasons of ambition.

· Both then-Attorney General John D. Ashcroft and Deputy Attorney General James Comey not only had access to the law books but also the clout and clearances to demand that the CIA tell them whether Plame was covert.

· In the fall of 2003, Ashcroft, having learned that he would probably be replaced after the 2004 elections, had grown weary of taking flak for the president and threw the Libby investigation hot potato to Comey.

· In the fall of 2003, Comey, who hoped to replace Ashcroft as attorney general, in turn passed the hot potato to Fitzgerald, a former colleague and one of his best friends.

I rest my cases.

Victoria Toensing, a deputy assistant attorney general in the Reagan administration, is a Washington lawyer.