Yesterday, Bob Novak reported that

For nearly the entire time of his investigation, Fitzgerald knew —— independent of me —— the identity of the sources I used in my column of July 14, 2003. A federal investigation was triggered when I reported that former Ambassador Joseph Wilson's wife, Valerie Plame Wilson, was employed by the CIA and helped initiate his 2002 mission to Niger. That Fitzgerald did not indict any of these sources may indicate his conclusion that none of them violated the Intelligence Identities Protection Act.

Notably, Novak states that by January 12 of 2004 Fitzgerald had waivers from the three people in the government with whom he had discussed the Mission to Niger (Harlow, the CIA's press officer who confirmed Plame's employment at the agency; Rove, who responded to Novak's inquiry that he'd heard the same thing; and Novak's original source, who refuses to release Novak to make his name public, the man whose identity Fitzgerald has not charged and continues to keep secret.  (This individual is almost certainly Richard Armitage, Colin Powell's Deputy Secretary of State. The same man who almost certainly was Bob Woodward's source as well.)

Novak adds that he got Plame's name from Joseph A. Wilson IV's own biography in Who's Who, establishing yet again that Ambassador Munchausen was not exactly the sort of husband a cautious CIA would choose for an agent whose identity it meant to shield from public eyes.

Today (Wednesday, July 12, 2006) Novak will appear on the Special Report with Brit Hume and Hannity & Colmes shows on Fox News Channel to be further interviewed about his disclosures, something now permitted since the Special Prosecutor has released him from his obligation to remain silent while the investigation proceeded.

The Fitzgerald case falls apart

I take it that the nod to Novak signals the long Fitzgerald circus is breaking up the tents and moving on, having succeeded only in tying up the time and money of the hapless White House staffers whom he enmeshed in this preposterous long—running carnival of misadventure and misdirection. His accomplishments consist of smearing the reputation of one of the key warriors against terror, the brilliant and hard—working Lewis Libby, and the added burden on an already pressed White House staff.

That the circus was about to close was obvious during the discovery proceedings in May. During those hearings, Libby's counsel argued that he should be entitled to notes not yet provided to him (because not in the Prosecutor's possession). In argument, that counsel argued from what he did have that there was much more in Time's and the New York Time's possession that was exculpatory to his client to which Libby was entitled. For example:

NOW, YOUR HONOR, MR. COOPER TOOK NOTES —— HE SAT THERE AND TYPED ON HIS COMPUTER AS HE TALKED TO MR. LIBBY —— OF EVERYTHING THEY TALKED ABOUT. WE HAVE THOSE. THERE IS NO REFERENCE TO THE WIFE WHATSOEVER.IMMEDIATELY AFTER THE CALL WITH MR. LIBBY, MR. COOPER SENT TO HIS EDITOR AN E—MAIL DESCRIBING THE IMPORTANT THINGS THAT MR. LIBBY HAD SAID. THERE IS NO REFERENCE TO THE WIFE.  NONE WHATSOEVER.

THE COURT: YOU HAVE THAT E—MAIL, TOO, I ASSUME.

MR. JEFFRESS: YES, WE DO. THAT'S WHAT THEY PRODUCED TO THE SPECIAL PROSECUTOR AND WHAT THE GRAND JURY HAD.

THERE IS ANOTHER E—MAIL. AGAIN, WE HAVE THIS ONE.
THERE IS AN E—MAIL BY MR. COOPER, AGAIN TO HIS EDITOR, ON JULY 16, FOUR DAYS AFTER HIS CONVERSATION WITH MR. LIBBY AND FIVE DAYS AFTER HIS CONVERSATION WITH MR. ROVE, ABOUT THE
ARTICLE THEY ARE PLANNING TO WRITE IN WHICH THEY ARE GOING TO MENTION THE WIFE. AND THE E—MAIL SAYS —— TALKS ABOUT HIM HAVING AN ADMINISTRATION SOURCE FOR THE INFORMATION ABOUT MS. WILSON.

AND I SUBMIT TO YOUR HONOR THERE IS —— AS YOU CAN
SEE, THE CREDIBILITY OF MR. COOPER WITH RESPECT TO HIS DESCRIPTION THAT MR. LIBBY CONFIRMED MR. PLAME'S EPLOYMENT BY THE C.I.A. IS GOING TO BE VERY MUCH AT ISSUE IN THIS CASE. AND THAT IS WHAT CASES ARE ALL ABOUT. AND WE SHOULD BE ENTITLED TO ANYTHING THAT MR. COOPER HAS SAID OR THAT OTHERS HAVE SAID OR DONE, SUCH AS MR. MASSIMO TALKING TO MR. WILSON ON THE BASIS OF WHAT COOPER SAID.
AND THAT KIND OF INFORMATION IS DIRECTLY RELEVANT TO THE CROSS—EXAMINATION, AND WE SUBMIT THAT IT SHOULD BE ENFORCED. AND CERTAINLY WE HAVE ESTABLISHED SPECIFICITY WITH RESPECT TO THAT.

THE OTHER THING I WOULD SAY IS THIS IS THE FIRST I
HAVE HEARD THAT TIME HAS A DOCUMENT THAT REFERS TO MS. PLAME. NOW, PERHAPS, THAT'S MR. COOPER'S COMMUNICATION WITH MR. MASSIMO, OR PERHAPS IT IS MR. MASSIMO'S NOTES WITH MR. WILSON. I DON'T KNOW, BUT CERTAINLY IF THERE IS A DOCUMENT THAT DOES REFER TO MS. PLAME PRIOR TO JULY 14, WE SUBMIT THAT THAT'S RELEVANT AND SHOULD BE PRODUCED AS WELL.

THAT'S ALL I HAVE ON TIME AND COOPER, YOUR HONOR.

Judge Walton subsequently ordered Time to produce all of its documentation on the conversation with Libby to him. After reading these documents, he ruled that no matter how Cooper testified on the stand at trial this documentation would impeach his testimony and he ordered Time to turn it over to Libby.

Thus, it was obvious from that point on that 2 of the 5 counts in the indictment, those based on Cooper's testimony were not likely to make it to trial.

As to the New York Times, the Judge indicated that their documentation might impeach Judith Miller's already befuddling testimony, but that couldn't be ascertained until she testified and therefore Libby could not get those items in discovery until after she had testified at trial. Not as definitive a setback for the prosecutor but not a good sign for a successful prosecution either.

(As for MSNBC's documentation which Libby also sought, except for notes by Andrea Mitchell which seemed unclear, the network claimed it had no documentation whatsoever. In any event, it is Tim Russert's testimony that he and Libby never discussed Plame or Wilson at all, so it hardly advances the  claim that Libby was part of a conspiracy to vengefully out Plame.)

In sum, the Cooper counts were worthless, the Miller testimony cited in the indictment only slightly better but still quite problematic, and the Russert counts added nothing to the case as Fitzgerald had originally presented it to the press and public (a vengeful act of reprisal against a "whistleblower") since the witness said they never discussed it all.

The case was now a far cry indeed from the heady days of the original press conference announcing the indictment in which Fitzgerald grossly overstated the strength of his case and tarred Libby.

New questions

In fact, several new questions arise as a result of Bob Novak's disclosures.

If Fitzgerald knew by January 12, 2004 who the leaker was and that it wasn't Libby or Rove, why did he later call them to testify before the grand jury? Was it simply to determine whether he could trap them into making perjurious statements, something the law does not permit?

If Fitzgerald knew by January 12, 2004 who the leaker was and knew it wasn't Libby, why in August of 2004 did he represent to the Court that Miller's testimony was 'essential to determine whether or not Lewis Libby... has committed crimes involving the improper disclosure of national defense information or perjury'? Keep in mind that Miller spent considerable time behind bars to compel her testimony.

If Fitzgerald has known since January 12, 2004 of the name of the leaker, why is he still protecting him, and why is he treating the leaker's (that is, Armitage's) source, who is almost certainly Marc Grossman, former Under Secretary of State for political affairs, the man reportedly the source for the first accusations against Libby and Rove, as an impartial witness to the events? In the discovery process it turned out that Grossman was a longtime friend of Wilson's, dating to their college days at the University of California—Santa Barbara. Is it likely that the famous prosecutor missed this fact?

Finally (and I hope to report more fully on this soon) what role, exactly, did former Deputy Attorney General Comey, who set up this extra—statutory (and I think unconstitutional) appointment of his friend Patrick Fitzgerald, play in steering Fitzgerald toward the mistaken notion that Libby was lying, not Wilson or the CIA? How hard did his office work to ascertain the truth of the essential elements of the referral—that Plame was covert and that there had been harm to national security in the disclosure of her name—when the prosecutor fudged those issues  in the indictment and at the press conference announcing it and has since backed off of those claims at all? Was that office simply trying to hamstring the Vice President's office which it viewed as a rival for the President's ear in determining the legal policies to be employed in fighting the war on terror?
 
Did the statement of Congressman Hoekstra, chairman of the House Intelligence Committee, revealed in the New York Times, to the effect that the Plame case was a set up by an anti—Administration clique in the CIA finally persuade Fitzgerald that he's been badly misled once again into indicting an innocent man?

Clarice Feldman is an attorney in Washington, DC.