9 Sept./Oct./Nov. 2019 Federal Bar Council Quarterly his honor and privilege to work nalist Robert Novak published a CIA employee before the publi- as a magistrate judge. Judge Pit- his regular column. In it, No- cation of Novak’s column. man expressed gratitude to all of vak wrote (among other things) the attorneys who have appeared that Wilson’s earlier mission to Let’s Appoint a Special before him, because more often Niger to investigate claims that Counsel than not they taught him some- Iraq had made plans to buy and Notwithstanding, the Novak thing about the law. transport uranium from Niger column and the “leak” of Plame had been a result of his wife’s caused a political firestorm; it suggestion. Wilson’s spouse appeared to reflect a (clumsy) was publicly identified: Valerie attempt by the Bush administra- Legal History Plame, an employee of the Cen- tion to punish opponents of the tral Intelligence Agency. Novak Iraq war. Attorney General John The Trials of “Scooter” did not specify his sources, other Ashcroft recused himself from Libby: Justice Run than to reference “senior admin- any investigation into the matter Amok? istration officials.” out of an “abundance of caution,” Novak’s initial and primary so it fell to his deputy, James By C. Evan Stewart source for his Wilson-Plame Comey. Comey, in short order, story was Richard Armitage, the appointed his good friend (and Deputy Secretary of State (and a godfather to one of his children), critic of the Iraq War); it was sub- Patrick Fitzgerald, as a special sequently confirmed to Novak counsel. Fitzgerald promptly by Karl Rove, a key presidential convened a grand jury and went aide, and Bill Harlow, the CIA’s to work. Director of Public Affairs. Ar- After hearing from a bevy of mitage also leaked the Wilson- witnesses, the grand jury indicted Plame story to Bob Woodward of no one for violating the 1982 stat- The Washington Post. ue (not surprisingly). But, I. Lew- The Intelligence Identities is “Scooter” Libby, chief of staff Protection Act of 1982 makes it a to Vice President Dick Cheney, federal crime to disclose publicly was indicted on October 25, 2005 On July 6, 2003, a retired the identity of a “covert” intelli- on multiple counts for lying about American diplomat Joseph C. gence agent; and the CIA consid- his communications with journal- Wilson IV published an op-ed ered whether the Novak column ists (other than Novak) regarding piece in The New York Times triggered this concern. After its when and what he said to them challenging President George investigation, the CIA conclud- about Plame in 2003. Accord- W. Bush’s assertion that Saddam ed that there was “no evidence” ing to the indictment, Libby lied Hussein had sought to acquire that the disclosure of Plame had about discussions he had with nuclear materials for his regime harmed any CIA operation, any Tim Russert (NBC News), Mat- in Iraq. That essay triggered a agent in the field, or “anyone else, thew Cooper (Time Magazine), Rube Goldberg-like series of including Plame herself.” In- and Judith Miller (The New York events that, frankly, confound me deed, by 2003, Plame was not a Times) – lied insofar as he denied to this day. “covert” agent (as defined by the he leaked Plame’s CIA status to statute); furthermore, according to Cooper and Miller, and lied when Novak’s Column the CIA’s acting general counsel, he said he remembered first learn- A week later, on July 14, “dozens, if not hundreds of people ing about Plame in a conversation 2003, well-known, national jour- in Washington” knew Plame was with Russert on July 10, 2003. At Federal Bar Council Quarterly Sept./Oct./Nov. 2019 10 his press conference announcing special counsel closing up shop? the July 10, 2003 phone call with Libby’s indictment, Fitzgerald ac- (Instead, Fitzgerald instructed Libby was quite equivocal – he cused Libby of having harmed na- both Armitage and Novak not to could not remember whether or tional security, said that Libby had go public with the fact that Armit- not he had mentioned Plame’s thrown “sand…in his eyes,” and age was the primary source for name to Libby (but would not called the charges of lying quite Novak.) And why go after Lib- rule it out). At the trial in 2007, serious because “truth is the en- by, who indisputably was not the however, Russert was unequivo- gine of our judicial system.” leaker to Novak (and thus did not cal. Now (undoubtedly, with the On March 6, 2007, after de- throw “sand…in [Fitzgerald’s] help of governmental horseshed- liberating for 10 days, a District eyes” on that score), and the al- ding), he was absolutely certain of Columbia jury convicted Lib- leged “illegality” was Libby’s ly- that Plame’s name had not been by on four felony counts, while ing about (misremembering) a call discussed on the call. Standing acquitting him on another. Still with Russert (that it was Russert alone, this difference in the two proclaiming his innocence, Libby who brought up Plame’s name) men’s recollections of a phone was sentenced to 30 months in and lying about leaking Plame’s call from years before seems to jail, fined $250,000, and subjected name to Miller and Cooper (not- be of little moment – certainly to two years of supervised release withstanding that neither pub- not for meeting the burden of after the end of his prison term lished the “leak” prior to Novak’s proving a crime. But what about (this was based upon Fitzgerald’s column)? Libby’s interactions with the sentencing recommendation that The answer seems to be that other reporters? Libby’s “falsehoods were central Fitzgerald was after a bigger fish As for Cooper, it turned out to issues in a significant criminal than Libby. According to Libby’s that his work papers and notes investigation”). lawyer, Fitzgerald twice offered to supported Libby’s version of On July 2, 2007, President drop all charges against Libby if his conversation with the Time Bush commuted Libby’s prison he would “deliver” Vice President reporter. (Karl Rove, in fact, sentence; but – notwithstand- Cheney to him on a silver platter. turned out to be Cooper’s source ing Vice President Cheney’s im- Exactly what crime Cheney sup- for Plame.) Consequently, the ploring – he refused to pardon posedly committed is/was unclear jury acquitted Libby of lying to Libby. On November 3, 2016, (Fitzgerald did say in his closing the FBI about his conversation the District of Columbia Court argument to the jury: “There is a with Cooper. of Appeals reinstated Libby as a cloud over the vice president. He This made Libby’s interac- member of the D.C. Bar. And on sent Libby off to [disclose Plame’s tions with Miller in June and July April 13, 2018, President Trump identity to Miller].” Fitzger- of 2003 pretty darn important to pardoned Libby. ald also told the jury that CIA Fitzgerald’s case. Indeed, in his agents could have died because summation to the jury, Fitzgerald I Am Confused of Plame’s “outing”: “[Hostile called her testimony “critical” to Almost immediately after foreign governments] could arrest his prosecution of Libby. At the having become special counsel, them. They could torture them. close of the government’s case, Fitzgerald learned what Comey They could kill them.”). When Libby’s defense team moved to already knew: the actual, primary Libby declined the twice offered dismiss the allegation that Libby leaker was Armitage. So why not “deal,” Fitzgerald settled for pros- lied to Miller after the Novak go after him? Apparently, because ecuting him. column was public. The govern- (as set forth above) there was in ment did not oppose the motion, fact no violation of the 1982 stat- What Was the “Evidence”? and the Court granted it. This left ute. So, why did the investigation Russert’s initial recounting a discussion between Libby and not end then and there, with the to the feds of what happened in Miller on June 23, 2008 as the 11 Sept./Oct./Nov. 2019 Federal Bar Council Quarterly fulcrum on which hung the jury’s word Bureau to describe where conviction of Libby. On July 2, 2007, Plame worked,” since the CIA Miller originally went to jail President Bush (unlike the State Department) is (where she spent 85 days) rather organized by divisions. Someone commuted Libby’s than testify before Fitzgerald’s else had thus been Miller’s source grand jury about her confidential prison sentence; but about Wilson’s wife working at communications with Libby. She he refused to pardon the “Bureau” (“one of the twenty was freed from her contempt or- Libby. or more nonproliferation experts der after Libby contacted her and I routinely spoke to”)! specifically released her from In her prep sessions with any obligations of confidential- husband to Niger for the CIA.” Fitzgerald (and before the grand ity. Miller then testified before Nonetheless, her testimony about jury), he had asked Miller sev- the grand jury twice; the second her June 2003 conversation with eral times what Libby had meant appearance was the most conse- Libby could not be squared with when he said “Bureau” – “Did he quential because she had found what Libby had said about his mean FBI?” Miller replied no; her notes of her 2003 conversa- July 10 call with Russert, and that Libby had only been talk- tions with Libby, and Fitzgerald that served to corroborate Rus- ing about the CIA. But Fitzger- used those notes both to refresh sert’s unequivocal testimony.