Court documents were released yesterday which appear to sound the death knell for Special Prosecutor Patrick Fitzgerald's case against Lewis 'Scooter' Libby. Leftists who once eagerly anticipated a "Merry Fitzmas" are likely to find a lump of coal in their stockings next December, before the trial, scheduled for early 2007, ever gets underway.

Discovery requests by Lewis Libby's defense team and the Dow Jones lawsuit to unseal the redacted pages of the Judith Miller appeal are proceeding. It is growing exceedingly obvious that the Special Counsel made a number of misrepresentations to the press and the court.

The sum and substance of his case is now clearly seen to be the difference in the recollections of Libby and those of Matt Cooper of Time Magazine, Judith Miller, then of the New York Times, and NBC's Tim Russert regarding certain conversations. But these conversations do not involve the deliberate 'outing' of a covert agent, did not affect national security and at best involve differing recollections of insignificant matters which should never rise to the level of a criminal prosecution.

Reuters reported yesterday that the case is scheduled for trial in January 2007. But, it may never occur. There are more documents that Fitzgerald is so far unwilling to turn over to the defense.

Fitzgerald told the judge he had turned over all relevant information, including an additional 1,000 pages this week, but Libby's counsel Theodore Wells urged the judge to force Fitzgerald to turn over even more material.

"We believe there are thousands and thousands and thousands of pages that Mr. Fitzgerald is in possession of that he has decided not to give to us," Wells said.

Theodore Wells, is indirectly quoted as saying that

"in the next three weeks he expects to file a motion arguing that the indictment should be dismissed."

In the meantime, here's more Fitz hooey as revealed in the various papers made public in the past few days.

In Exhibit C of the responses to discovery requests by Libby, the Special Prosecutor indicates only four reporters were questioned: Woodward, Miller, Cooper and Novak. Many more knew that Plame was engaged by the CIA — and have said so — and were never questioned.

One journalist, Mr. Dickerson, is specifically mentioned by Fitz as having learned of this, but the Fitzgerald letter indicates that he learned of that in Africa after July 11, 2003. Perhaps that was an interview by long distance mind reading rays, because Mr. Dickerson denied ever being questioned by Fitzgerald.

He told Raw Story:

"I didn't know I was mentioned in the court filings until I saw it on the web,' he said. 'I've never been contacted by anyone in Fitzgerald's office.'  (Hat tip: Just One Minute)

Dow Jones sued to publicly release the redacted pages in the Judith Miller appeal case, and a substantial portion of that material was released. 

In these newly—released appeal documents Fitzgerald contradicts the claims he made on January 23, 2006 to Libby's counsel that Plame's status and history at the CIA as well as the harm to national security were not material to the charges in the indictment. When he sought Miller's testimony, he made representations to the effect that Plame was within the reach of the IIPA (Agee Act). Here is what Judge Tatel wrote:

'As to the leaks' harmfulness, although the record omits specifics about Plame's work, it appears to confirm, as alleged  in the public record and reported in the press, that she worked  for the CIA in some unusual capacity relating to counterproliferation. Addressing deficiencies of proof  regarding the Intelligence Identities Protection Act, the special counsel refers to Plame as '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'—representations I trust the special counsel would not make without support. (8/27/04 Aff. at 28 n.15.) In addition, Libby said that Plame worked in the CIA's counterproliferation division' (I—53—55, 245— 46, p.80) [emphasis added]

The proof for Fitz's claim is not clear. The judge only refers to an affidavit by Fitzgerald. The only reference I can see in the affdavit that sheds a clue as to what Judge Tatel was referring to above appears at footnote 15, p. 28 of this affidavit.

"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." 

If this footnote wasn't designed to create the impression that Plame was engaged in covert work disclosure of which harmed national defense, it was nevertheless artful—enough a suggestion of that to persuade Judge Tatel.

Wasn't it?

Fitzgerald  made yet a second representation suggesting that Plame was covert at some point [possibly within the five year window required by the Agee Act]and that the disclosure of her name would impact negatively on national security as Judge Tatel explains on p. 80 of the now unredacted portion of the opinion:

"Most telling of all, Harlow, the CIA spokesperson, though confirming Plame's employment, asked  Novak to withhold her name, stating that 'although it is very unlikely that she will ever be on another overseas mission . . . it might be embarrassing if she goes on foreign travel on her own' (II—168—69), a statement that strongly implies Plame was covert at least at some point. While another case might require more specific evidence that a leak harmed national security, this showing suffices here, given the information's extremely slight news value and the lack of any serious dispute regarding Plame's employment."

The affidavit is an eye—opener in other respects, for it reveals that the investigation was, as I have always claimed, utterly one—sided, that Fitzgerald is at a minimum a gullible fool who fell hook, line and sinker for the notion that Kerry partisan and serial liar Joseph Wilson IV was a 'whistleblower' who deserved special protection by his office.

Here are a few of the gems in this affidavit by Fitzgerald, an affidavit without which Judith Miller would never have been jailed.
 
Paragraph 9:

'Wilson, who was not a government employee at the time of the trip and    [REDACTED] spoke to several reporters including Nicholas Kristof of the New York Times and Walter Pincus of the Washington Post....'

Since Kristof's first meeting was with Wilson and his wife, and because Pincus has long been believed to have known the Wilson's socially, I'd bet money that in both cases that redacted  name person who shopped the tale with Wilson was none other than Valerie Plame herself.
 
Paragraph 94 should, however, prove the death knell for the case. That's because it establishes beyond doubt the prosecution's predisposition and the one—sided nature of this "investigation."

Here's what Fitzgerald says:

"One key factor in deciding whether to issue a subpoena has been whether the 'source' to be identified appears to have leaked to discredit the early source (Wilson) as opposed to a leak who revealed information as a whistleblower'....The First Amendment interests are clearly different when the 'source' being sought may have committed a crime in order to attack a person such as Wilson who, correctly or incorrectly, sought to expose what he perceived as misconduct by the White House."

Get it? There was not even an effort here at a fair investigation or even—handed treatment. The prosecutor was only issuing subpoenas to reporters he thought had received leaks from people trying to discredit Wilson's story. Whether or not leaks involved classified material or national security, leaks for other motives to reporters were of no concern to him. Whatever leaks Wilson or Plame or the VIPs or any other partisans made respecting the White House were of no concern to the Special Prosecutor. Just leaks relating to discrediting "whistleblower" Joe.

This is why the criminalization of politics should be stopped. This is why there should never be another special prosecution.

And this is why this case deserves to be dismissed.

Clarice Feldman is an attorney in Washington, DC.