Discovery Phase
    By Jeff Lomonaco
    The American Prospect

    Friday 13 October 2006

The CIA leak case isn't over by a long shot - and Cheney is still at the center of the story.

    Behind closed doors at the US District Court for the District of Columbia this week, US District Judge Reggie Walton is considering what classified information I. Lewis "Scooter" Libby, Vice President Dick Cheney's former chief of staff and national security adviser, will be able to use to defend himself against charges of obstruction of justice, false statements, and perjury. To bring Libby to trial, the special prosecutor in the case, US Attorney for the Northern District of Illinois Patrick J. Fitzgerald, has to avoid the risk of graymail - the defense strategy of forcing the prosecution to drop the case because of classified information the defense would reveal at trial. Jury selection in Libby's trial is scheduled to begin January 16.

    Nonetheless, in the wake of the recent disclosure that Richard Armitage, Colin Powell's deputy in the State Department, was syndicated columnist Robert Novak's initial source for his July 2003 column identifying Valerie Plame Wilson as an undercover CIA officer, the conventional wisdom - typified by The Washington Post's editorial page - is that the case is effectively over, and that it amounts to very little. "One of the most sensational charges leveled against the Bush White House - that it orchestrated the leak of Plame's identity to ruin her career and punish Wilson - is untrue," according to The Washington Post.

    Armitage may have leaked the information first. But it seems clear that White House officials, including those in the Office of the Vice President, also coordinated an effort to leak the information at almost the same time. In fact, according to the charges against him, Libby leaked Plame's identity to a reporter twice before Armitage ever spoke with Novak.

    Conservative partisans have used the Armitage revelation to try to undermine Fitzgerald's prosecution of Libby. Nonpartisan commentators, surprised that Armitage was Novak's first source, have ignored the fact that the Wilsons were the target of an administration vendetta all the same. Fitzgerald has already, in the discovery phase of Libby's prosecution, presented substantial evidence that there was an effort by Libby and Vice President Cheney, with assistance from Karl Rove, to expose Plame's job at the CIA. Indeed, one of the most intriguing questions is how Fitzgerald will follow up on the suggestions he has already offered that Cheney directed Libby to tell New York Times reporter Judith Miller about Plame.

    From the outset, FBI investigators - and then Fitzgerald and the grand jury - pursued leaks from both the White House and Armitage. Their work has revealed a White House, and particularly an Office of the Vice President, fixated on Wilson and his accusation, in a July 6, 2003, New York Times piece, that the administration had twisted the intelligence on Iraq's pursuit of a nuclear weapons program, which threatened to expose the baseless justification for the war and undermine Cheney's credibility. The week that Wilson's op-ed appeared, the White House went into crisis mode; there were multiple meetings daily about the matter.

    Around that time, Cheney wrote up a series of rhetorical questions critical of Wilson's article, asking whether his trip was a junket set up by his wife - precisely the charge used to discredit Wilson. Fitzgerald has argued not just that Cheney communicated the Plame information (for the second time) to Libby shortly thereafter, but also that Libby understood Cheney wanted the information conveyed to the public. Libby testified that Cheney repeatedly told him he wanted to "get everything out." On July 8, according to Fitzgerald, Libby disclosed Plame's CIA status to Judith Miller. (This was actually the second time Libby had told Miller; the first had been two weeks earlier.) He repeated the information to Miller again on July 12, as well as confirming it for Time's Matt Cooper, following a media strategy session with Cheney aboard Air Force Two.

    The vagueness of Cheney's instruction to get everything out may allow Fitzgerald to argue that Libby both followed what he understood to be Cheney's desire but blew Plame's cover at his own initiative. That would enable the special prosecutor to avoid the risk of portraying Libby before the jury as the loyal subordinate of a powerful - and deeply unsympathetic - boss. But more dramatically, deep in one of the hearings last spring during the discovery phase, Fitzgerald came closer to indicating that he believes, and may argue at trial, that Libby was acting on more explicit directions from Cheney to disclose Plame's CIA status to Miller - on the basis of Libby's own notes.

    Fitzgerald explained that Libby's notes contain an instruction from Cheney to "tell information to Ms. Miller on July 8." Libby's position is that "the instruction reflected in his notes to tell ... Judith Miller refers to the NIE [National Intelligence Estimate]. He says he did not discuss Mr. Wilson's wife that day. To our understand[ing] both were discussed."

    In other words, Libby claims he was instructed by Cheney only to disclose to Miller portions of the October 2002 National Intelligence Estimate on Iraqi WMD. Fitzgerald suggested that Libby was directed to tell Miller about Plame as well, which is what he went on to do.

    Whether Fitzgerald follows up on that suggestion at trial and argues that Cheney explicitly instructed Libby to disclose Plame's CIA status, or only claims that Libby understood that to be the conduct expected of him, remains to be seen. Either way, the role of Cheney and Libby working together will be the most interesting aspect of Libby's trial.

    Of course, Fitzgerald has not charged either Libby or Cheney with a crime for that coordinated effort. It is one of the imperfections of relying on criminal investigation for government oversight that it focuses on the question of who gets indicted and convicted, so that objectionable conduct that is not prosecuted ends up looking more acceptable by comparison. As Washington Post reporter Walter Pincus was quoted as saying in a Columbia Journalism Review article earlier this year, "The entire Plame investigation ... has been a distraction from a more fundamental conversation about how the White House handled evidence before the war." But whatever the ultimate legal disposition of the investigation, it is valuable to have learned that at least two of the four or five most powerful men in the United States were willing to disclose information about a CIA officer's identity as part of an effort to insulate the administration.

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