[Part One may be found here]

A few days ago, something quite unprecedented happened. A former federal prosecutor (Richard Convertino) was indicted for obstructing justice and seeking false  testimony under oath in the nation's first post—9/11 terror trial three years ago. What  particularly caught my eye in the AP account of the case is this:

At one point in late 2002, US Attorney Patrick Fitzgerald in Chicago drafted an indictment against al—Marabh on multiple counts of making false statements in his interviews with FBI agents. Justice headquarters declined prosecution.

It is rare to see any public acknowledgement of the degree of supervision and control the Department of Justice normally exercises over criminal proceedings by US attorneys. The attorney whose judgment in that case was overruled is none other than the Special Prosecutor in the Libby case, Patrick Fitzgerald.

Mr. Libby has compellingly argued that the singular nature of Fitzgerald's appointment, which bypassed all of the normal Department constraints, violates the Constitution and the Statute governing prosecutorial appointments. The particular constraints thrown to the wind in appointing Mr. Fitzgerald were designed over decades of experience to conserve prosecutorial resources, protect national security, limit the pursuit of meritless cases and conform to high standards of ethical conduct.

At the heart of  Libby's procedural defense is the creation by then—Acting Attorney General James Comey of a special counsel cut free from all supervision and direction and all limitations on his conduct set forth in Department of Justice regulations (In Part One of this series I detailed that argument).

Today I will discuss new matters revealed in the February 24 hearing before Judge Walton and in the responsive pleading filed on the afternoon of March 31 by Libby's counsel, countering Fitzgerald's response to the Motion to Dismiss, both of which have received scant press coverage.

The information revealed in this hearing, and the filing and counter—filings, underscores why the established methods of proceeding in federal criminal cases should never have been scrapped in appointing the Special Prosecutor.

Since the Special Counsel began the story with a press conference announcing the indictment in which he relied heavily on baseball analogies, I'll follow his lead.

Who's on First?

In his press conference, which was Patrick Fitzgerald's most obvious and unfortunate departure from Departmental regulations, the Special Counsel painted a picture of the case sure to subject the defendant to opprobrium—he outed a covert agent causing harm to national security, he was the first official to have done so and although he wasn't charged with having done so, punishing him for perjury and obstruction would nevertheless be appropriate to deal with this conduct.

In fact, as the case continues it has become clear that none of these assertions were true.

At the February 24 hearing the prosecutor stated:

'We don't intend to offer any proof of actual damage.'

Good thing that, because he'd be hard pressed to find any. By Bob Woodward's account the Central Intelligence Agency has done an informal assessment and found no damage. The history of Ms. Plame's employment, during which she was twice outed—once by Ames and a second time by the agency—means that if she still was at work in 2003 doing undercover work (the only way revealing her identity might create harm) a lot of people at the agency were criminally negligent.

But now we recognize the old Fitzgerald razzle—dazzle: make a claim, fail to substantiate it, but continue to imply it's true anyway. And so does Libby's counsel who responded:

But there's no question he [Fitzgerald] is going to stand up in front of that jury and he's going to convey to that jury that Mr. Libby has engaged in a very serious crime involving disclosing the identity of a CIA agent. It's in the indictment. I don't even understand how the government can draft the indictment, put these issues in play and act like it's not an issue at trial.

I second that thought. If there is no proof of damage, it's time to stop saying there has been any.

This same razzle—dazzle is at play on whether or not Ms. Plame was a covert agent. Despite repeated reference in the indictment to Mrs.Plame's 'classified" status, the prosecutor refuses to produce any evidence of it. (Libby argues he had no reason to suspect she was classified and that mitigates any argument he had a motive to lie.)

Fitzgerald:

[W]e will argue that he knew or should have known it was classified and that he was being investigated for disclosing classified information.'

Libby's lawyer Wells: 

The jurors will be hearing 'Mr. Libby outed a CIA agent, and they are going to be sitting in the box thinking 007's identity has been disclosed and that my client is a terrible person. Maybe if he would give me the discovery showing whether she was covert, I would be in a position to make some educated judgments about how to try this case. Mrs. Wilson may be a witness.... I need to understand whether she is covert or not. If she's classified or is just classified because the bureaucracy didn't unclassify her five years ago when they should have.

In its referral letter to the Department of Justice seeking an investigation, the CIA must reveal the agent's status and describe the lengths to which it went to shield her identity from disclosure. Arguing attorney—client privilege, Fitzgerald asserts he will not produce this letter. It would be a pity —and a surprise—if he is not compelled to produce it.

There are some inconvenient facts which would contradict any assertion that Valerie Plame's identity was being protected by the CIA. For one thing, Mr. Harlow, the CIA's public affairs officer, not only confirmed her identity to journalist Robert Novak and did very little to prevent its publication, but also, as the prosecutor has revealed, conveyed this information to Ms. Martin, a White House public affairs officer, as early as June 1, 2003. I would be delighted to see how, in light of that among so much else, the Agency could argue that it did what it could to protect her identity.

These are but warm—ups to the most preposterous of Fitzgerald's factual claims: that Libby was the first official to tell a reporter about Plame.

The event which triggered the CIA referral was an article which appeared on July 11, 2003 by Robert Novak indicating Valerie Plame was Joseph Wilson's wife and a CIA agent who had suggested him for his well—hyped and falsely—described Mission to Niger. (The Wilson op—ed  appeared as early as July 5 on the wires, in a report by Reuters.)

In the latest pleading, Libby discloses that in February 2004 (before Libby testified to the grand jury and before Fitzgerald subpoenaed a single reporter) Fitzgerald knew the source of Novak's report. Moreover, it appears from the record, he interviewed that source (most probably former Deputy Secretary of State Richard Armitage) and didn't ask him to whom else he might have mentioned this information. Consequently when Bob Woodward showed up shortly after the indictment of Libby, revealed that he'd received the same information from the same source in mid—June of 2003 —an event that would have caused a less Quixotic prosecutor to throw in the towel and confess error—it could hardly have been more astonishing to those of us watching this careless prosecution team from the first row seats. 

I am convinced that Fitzgerald spent a considerable amount of time rooting around to find someone in the White House mentioning anything at all about Plame to anyone before Novak's non—White House source told him. And since (according to the indictment) NBC's Tim Russert said Libby never mentioned a thing about Plame, and Time's Matt Cooper said HE told Libby (who responded only 'I heard that, too'), Fitzgerald had to rely on the baffling  June 23, 2003 conversation with Judith Miller, in which by Miller's own account Libby never mentioned Plame nor the CIA, indicating only he'd heard that Mrs. Wilson worked for the 'Bureau,' and this in a conversation to debrief her about her work in Iraq, which was of great interest to him.

That's how far Fitzgerald had to scour to find a single word from Libby that predated the Novak story. The moment that Woodward came forward and said he heard it from another government official in mid—June (before the Libby—Miller conversation) that justification for singling out Libby in a town abuzz with Wilson—Plame gossip was preposterous. And yet, Fitzgerald continues with a prosecution founded upon it.

One has to wonder what planet he's been living on to continue to assert as he did at the February 24 hearing:

Mr. Wilson didn't reveal himself as the unnamed Ambassador until July 6.

July 6 is the date Wilson's op—ed appeared in the New York Times to be sure, but he was talking to many people — including reporters — about his Mission. Fitzgerald's assertion is nonsense.

Off the top of my head here are the reporters (American and British) who, before July 6, wrote about the trip, and for whom Wilson was the obvious source:

Walter Pincus (Washington Post)

Nicholas Kristof (New York Times)

John Judis and Spencer Ackerman (The New Republic)

John Lumpkin (The Independent)

Buncombe and Whitaker (The Independent)

Andrea Mitchell (who hosted an appearance of Wilson's on Meet the Press the very morning of  July 6, and therefore most certainly had advance notice that his op—ed would be appearing that day)

For each reporter who knew we must assume a number of editors, colleagues and friends were apprised of the Ambassador's identity.

But the number of those who probably knew before July 6 is much greater than just these people.

From mid—February to March 2003 (according to Wilson's own op—ed) he called various Senators and told them about his story. (Since it was essentially anti—Administration, and since he'd find a more sympathetic ear with the opposition, it is unlikely they had any reason not to pass this on to media pals and others.)

Following the initial May 6 Nicholas Kristof column, Wilson briefed two Congressional Committees about what he maintained had been false claims in the State of the Union address. And, as above, you can imagine how little interested the President's opponents were to keep that from the press.

Beginning in May of 2003, Wilson began working with the Kerry team. He was in regular contact with them, and they certainly knew of his role in Niger.

On June 14, 2003, as I have reported here,  Wilson addressed a group known by the acronym EPIC in downtown Washington, D.C. where to a full house he acknowledged that he was the Ambassador referenced in the Kristof and Pincus articles. And in his bio distributed and posted with his speech, he named his wife, Valerie Plame.

In sum, both within the press corps and the government weeks before Fitzgerald's July 6 witching hour, Mr. Wilson had done everything possible to spread his false story and get credit as the former Ambassador of Niger. For Fitzgerald to continue to insist otherwise is mad.

But, there is no one to tell him he's being foolish, is there?

Nobody's on Home

In response to Libby's well—argued Motion to Dismiss the indictment because of the constitutional and statutory infirmities in Fitzgerald's appointment to an ad hoc position giving him unprecedented power and no 'direction or supervision' from the Attorney General, Fitzgerald filed a weak reply and on the afternoon of March 31, Libby responded to that.

In essence, Fitzgerald argues that we should ignore all the public statements he and Acting Attorney General Comey made, including those Fitzgerald made in an affidavit in which the prosecution repeatedly denied there were any limitations on the prosecutor's mandate, tenure, budget or reach. Now, with his feet to the fire, he argues in post hoc affidavits signed by him and Comey that there was a never—before—mentioned subjective understanding between the two, an understanding never memorialized anywhere in any contemporary document, and that this understanding of Comey's 'intent' (apparently conveyed by ESP) did place some limits on Fitzgerald's authority (see, also this).

Subsequent to his appointment of Fitzgerald, Comey left the Department and has had two successors in office, David  Margolis and  Robert McCollum, and there is no affidavit from them or any other person in the Department that they, too, were participants in this DoJ Vulcan mind meld.

It is strikingly odd that the Department is riding on this assertion, when most lawyers will tell you that 'unwritten agreements aren't worth the paper they're not written on'  — especially when they concern something so significant as the delegation of such sweeping and frightening powers.

In sum, at this late date in the game, faced with a strong argument that his own words and those of Comey constitute proof of an illegal appointment, the prosecutor has come up with transparently ridiculous affidavits about subjective intent. A privately—communicated intent which runs contrary to the prosecution's consistent, repeated oral and written representations throughout this matter. The overbroad authority granted to Fitzgerald by Comey — so broad it violated the Constitution's appointment clause and the statutory requirement that the Attorney General supervise and direct litigation brought in the Government's name — worked to Libby's distinct disadvantage. As his side notes:

Armed with that power, the special counsel has made numerous decisions implicating national security, the First Amendment and other fundamental public interests with absolutely no input, guidance or responsibility by any properly appointed officer.

The powers granted Fitzgerald exceed in some respects those granted to independent prosecutors, an office scrapped by Congress for its overreach.

Fitzgerald's fallback from the ESP defense is that he is removable and, therefore, remains an 'inferior officer' who need not have achieved his office through nomination by the President and Congressional confirmation.  Comey made contrary statements at the press conference noting the appointment. Specifically, Comey said 'in theory' he could remove Fitzgerald only if he knew what he was doing and only if Comey had 'a darn good reason for doing it.' 

These fatal caveats by Comey render nugatory any power of removal.

Libby argues that no case has ever made this the determining factor, and in any event Fitzgerald never reported to Comey or anyone else what he was doing.  If Comey didn't know what Fitzgerald was doing, how could he have a 'darn good reason' for removing him.

'[T]he power to remove at will carries in it,' Fitzgerald risibly counters, 'the power to demand information if the Acting Attorney General deems it necessary.'

Libby responds that there is no way for the Attorney General to know enough to even make a demand for information.

And it is in the following assertion that the Special Counsel's argument reaches the same level of absurdity as his claim that Libby was the first official to have told a reporter, or that before July 6 Mr. Wilson didn't reveal himself as the unnamed Ambassador.

'[M]uch information about the investigation of the special prosecutor,' Fitzgerald advances, is in 'the public domain and therefore available to the Acting Attorney General in exercising the power to remove the special counsel.'

Libby correctly notes that is false. Much of the work of the prosecutor is secret, much of the information about what he is doing is not reported until long after the action he has taken, and , moreover,

much of the information that does make it there is flat wrong. As the government is surely aware reporters and pundits continue to publish rumor and innuendo about the special counsel, the relevant evidence and possible future developments. Certainly the Attorney General cannot meaningfully oversee the special counsel by reviewing the overheated speculation about this case.

This portion of the latest Libby pleading should be significant to all those who care about civil liberty: 

[I]t only recently came to light that the special counsel learned as early as February 2004 who disclosed the CIA identity of Valerie Plame Wilson to Robert Novak.... [This was before Libby testified to the grand jury and before any reporter was subpoenaed to testify ] A properly appointed principal officer may well have disagreed with the special counsel that, notwithstanding that revelation it was worthwhile to pursue an investigation of Mr. Libby or others based on alleged inaccuracies in statements to the FBI. Now, however, it is too late for him to undo that decision. Whatever Edmond [the Supreme Court  case upon which Libby principally relies] contemplated by 'direction and supervision at some level,' it surely meant something more than periodically checking the Washington Post to find out if one's unchecked 'subordinate' has gone too far.

Among the remaining pretrial issues is the disposition of the subpoenas Libby has served on a number of news organizations and reporters. As the press has demonstrated such concern for civil liberties in discussions about NSA surveillance and the Patriot Act, one might have expected more sympathetic coverage from them respecting the issues raised in the Motion to Dismiss. Among those waiting in the wings are Andrea Mitchell, Matt Cooper, Tim Russert, Judith Miller, and the New York Times. Interestingly these people were drawn into this case by the Prosecutor's subpoenas after he already knew who had been Novak's source... that is to say, after any reasonable prosecutor would have closed up shop.

You'd think with so much interest in civil liberties, fear of government overreach and their own interests on the line, they'd be filing responses, adopting Libby's argument that this appointment was, in fact, a license to witch—hunt.

We'll just have to wait for those filings.

Clarice Feldman is an attorney in Washington, DC.