Plame leak probe descends into absurdity
Will CIA-leak prosecutor Patrick Fitzgerald indict Karl Rove?
Byron York
The Hill
Who knows? While some observers search the tea leaves for answers, the only real answer right now is that nobody outside of Fitzgerald’s office knows for sure.
And it’s possible that nobody inside Fitzgerald’s office knows for sure either.
But let’s say, for the sake of argument, that Rove is indicted. If that were to happen, it appears he would be charged with lying to Fitzgerald’s grand jury and not with any underlying crime, such as exposing a covert CIA agent.
In that event, a Rove prosecution would probably resemble the case of Lewis Libby, the former Cheney chief of staff charged with perjury and obstruction of justice. And, although no one seems to have noticed, that case is descending into absurdity.
Perhaps the key moment in the descent happened last February in the courtroom of U.S. District Judge Reggie Walton. Fitzgerald was there, along with the Libby defense team.
Libby’s lawyers had asked Fitzgerald to produce evidence that Valerie Plame Wilson was a covert agent at the CIA. They had also asked for an assessment of the damage, if any, caused by the exposure of her identity.
In papers filed with the court, Fitzgerald refused both requests. Now, in the courtroom, Judge Walton wanted to hear Fitzgerald’s reasons.
“Does the government intend to introduce any evidence that
would relate to either damage or potential damage that the
alleged revelations by Mr. Libby caused, or do you intend
to introduce any evidence related to Ms. Wilson’s status
and whether it was classified or she was in a covert
status or anything of that nature?” Walton asked.
“We don’t intend to offer any proof of actual damage,” Fitzgerald said. “We’re not going to get into whether that would occur or not. It’s not part of the perjury statute.”
It was an astonishing statement, in the context of what Fitzgerald has said in the past.
Go back to the news conference he held last October in which he announced the Libby indictment. The case was very serious, Fitzgerald said, as he launched into the famous metaphor in which he compared the CIA-leak case to a baseball game in which the pitcher threw a fastball, hit the batter and “really, really hurt him.”
This case is kind of like that, Fitzgerald said, only “it’s a lot more serious than baseball. And the damage wasn’t to one person. It wasn’t just Valerie Wilson. It was done to all of us.”
There was no way one could listen to that and escape the conclusion that Fitzgerald was claiming the disclosure of Mrs. Wilson’s identity did serious damage. But that was then. Now Fitzgerald doesn’t want to talk about it.
But what about Mrs. Wilson’s job status? When that issue came up, the conversation went truly off track.
Wells was again pressing the judge to force Fitzgerald to turn over evidence of the damage done. The reason he needed it, Wells said, is that Fitzgerald will likely — and understandably — tell the jurors that the case began with the outing of a CIA agent.
“What [the jurors] are hearing is that, as Mr. Fitzgerald
said in his press conference, 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,” Wells said. “It’s going to be like we
have turned over the crown jewels because we outed a
classified CIA agent.”
The judge then turned to Fitzgerald. What did he have to say?
“We are trying a perjury case,” Fitzgerald said. “If she
turned out to be a postal driver mistaken for a CIA
employee, it’s not a defense if you lie in a grand jury
under oath about what you said.”
So there you have it. Not only does it not matter if the Valerie Plame Wilson leak did any damage, or no damage at all. It doesn’t even matter if Wilson even worked for the CIA. What Patrick Fitzgerald set out to investigate, the alleged politically motivated, deliberate exposure of a covert CIA agent, no longer matters.
Now, say that Rove is indicted. His lawyers would no doubt argue that Rove did not intend to mislead the prosecutor or the grand jury.
But they, like the Libby defense team, would also ask Fitzgerald for evidence showing that the investigation was based on something. Was there an underlying crime that justified Fitzgerald’s two and a half years of investigating and his threats to jail journalists, as well as the jailing of New York Times reporter Judith Miller?
Was there some reason for it all?
If that happens, if Rove’s lawyers were to ask Fitzgerald those questions, the prosecutor will likely say to them what he has said to the Libby defense team:
It doesn’t matter.
And that is what has become of the CIA-leak investigation.
York is a White House correspondent for National Review. His column appears in The Hill each week. E-mail: byork@nationalreview.com
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