Special Analysis Report:
The Valerie Plame Scandal, Part Three
Seven hundred thirty-five days have now passed since Mr. Novak published the status of Valerie Plame as an NOC operative.
Five hundred fifty-six days have now passed since Mr. Comey appointed Mr. Fitzgerald to investigate potential criminal wrongdoing in the matter.
To date, only Judith Millera pro-Bush Administration journalist who did not publish information, but who was provided information by others that she then conveyed to journalists and White House staffhas been jailed. Other journalists have been threatened with jail for similarly resisting compulsion to testify before the federal grand jury convened at Mr. Fitzgerald's behest.
Mr. Novak has not been pressured in the same public and aggressive manner, possibly because he elected early on to provide the grand jury with everything he knew.
President George W. Bush and Vice President Richard Cheney were not compelled to testify under oath before the grand jury; instead, Mr. Fitzgerald informally interviewed them, with Mr. Bush being allowed, according to the account in the Washington Post, to have his personal attorney, James E. Sharp, present during the entire session. This has the practical consequence of removing all possibility that either of these men could be charged with perjury.
In recent days, Matt Cooper, who had been provided information about Ms. Plame's status an an NOC operative, finally testified before the grand jury concerning whom he had contacted within the Administration as he sought verification and background on the information in his possession about Ms. Plame. He named both White House Deputy Chief of Staff, Karl Rove, and the Vice President's Chief of Staff, I. Lewis Libby; but in both cases, he reports that they only confirmed to a greater or lesser degree what he recounted to them as his facts under journalistic investigation. This does not mean that they were not already far more versed than he in the entire matter, but what Mr. Cooper claims he told the grand jury does not portray them as the original sources of the disclosures about Valerie Plame.
The mainstream media and the Blogosphere are now, and once again, talking roundly about indictments that may soon be forthcoming based upon the recent testimony by Mr. Cooper, as well as upon other recent revelations. This current excitement is reminiscent of a flurry of journalistic speculation that occurred late in the Summer last year, when articles appeared in The Washington Post and elsewhere speculating that the investigation had reached some kind of "critical stage," and indictments were imminent. As it turned out, no indictments occurred, and there was no critical stage that set the world inside the Beltway on its ear about the whole scandal. This makes the current round of speculation appear to be one more instance either of the journalistic community whipping itself into a speculative frenzy or of interests aligned with the federal prosecutor crafting yet another watershed of speculation that will prove unwarranted. In support of this latter possibility are surprising leaks coming from attorneys and others close to the grand jury and witnesses: Mr. Fitzgerald has demonstrated that, when he wants to, he can maintain an iron curtain around his investigations, so any information now trickling out is most likely arriving in the public domain, if not by his direct efforts, at least with his tacit permission.
Below are the principal parties involved in the investigation, along with an analysis, in part factual and in part forensic, of the role of each.
Named to investigate the outing of Valerie Plame by a political appointee of the Bush Administration, Mr. Fitzgerald operates without direct oversight by the Congress or by any other independent authority. Expenditures on the investigation are drawn from the pool of funds of the Justice Department, headed as it is by another political appointee. There exists no separate, clear, readily auditable trail of expenditures by Mr. Fitzgerald pursuant to the investigation, and he reports to no one outside the Justice Department. No means exist even to determine how much money Mr. Fitzgerald has spent to the end of having judicial imprimatur on the termination of what remained of journalistic source confidentiality.
Regardless, then, of any indictments or other actions that might or might not please opponents of the Bush Administration, results of the special counsel's investigation are prima facie fruits of a poison tree. No amount of prosecutorial gravity and assurances of integrity and trustworthiness overcomes the closed and interlocked relationship this prosecutor has to the Bush Administration, whether or not, in the end, he successfully obtains indictments against one or more unelected members of Mr. Bush's group.
Although the news media in general, and The New York Times reporter Judith Miller in particular, have successfully framed her resistance to disclosing her sources as a First Amendment press freedom issue, revelations this week point clearly to Ms. Miller, herself, being a substantive source of the information about Ms. Plame's identity. Whether or not Mr. Rove, Mr. Libby, and others knew all about Valerie Plame before being contacted by journalists, it was Judith Miller who seems to have had all the information any journalistMr. Cooper includedwould need to confuse the situation of where the ball actually began to roll. This is eerily similar to a disinformation tactic used in the run-up to the war in Iraq, when Ms. Miller reported bogus information fed to her by exiled Iraqis, who then used her articles to "prove" to Congress that their claims were being independently verified by American investigative journalists.
Judith Miller, whom Norman Solomon accuses of seeking to vault her flagging career with her minimum security prison stay, is instrumentalizing the First Amendment to the United States Constitution as a foil for what is actually a Fifth Amendment issue. She had come into possession of potentially classified information, and she passed that information to others. Her refusal to testify before the grand jury, and to thereby expose herself to questions regarding not only from whom she obtained the information, but also her motives and justifications for conveying the information, is an exercise in the Fifth Amendment right against self-incrimination. By testifying fully and truthfully, Ms. Miller could very well have described to an indictable level acts on her part in violation of relevant federal laws.
After testifying before the grand jury last week, Mr. Cooper hit the talk show circuit to reveal what he had said behind the jury's closed doors. This in itself is stunning because of the prosecutor's previous, nearly absolute lock-down on the grand jury proceedings; it gives further evidence, as suggested above, that the current spate of information coming out about the investigation is being at least permitted and perhaps orchestrated by or on behalf of Mr. Fitzgerald, himself. Mr. Cooper's Time magazine article describing what he told the grand jury and his interviews on Sunday television news shows could have been unwitting aid to a prosecutor seeking to rattle investigative targets or, less charitably to Mr. Fitzgerald, a sack of red meat he wanted to toss to journalists to keep Congressional Democrats and other liberal interests worked up while he lets the grand jury run out its clock.
One way or the other, strikingly absent from all of Mr. Cooper's post-testimony statements was a long-winded, unambiguous, and forthright disclosure of exactly where, how, and when he got his information. His detailed memories of whom he used within the Administration to confirm what he had obtained were on explicit display; his detailed memories of what story he abandoned so that he could pursue the leads about Valerie Plame were pounded out; the precision of his recollection that neither Mr. Rove nor Mr. Libby told him Valerie Plame's name was remarkably sharp.
But at least in his post-testimony article and interviews, he was oblique or silent on the details of his original source. This does not mean he didn't disclose it to the grand jury: Mr. Cooper did not leave the grand jury room bound for jail, and that could mean Mr. Fitzgerald got what he wanted but is not allowing the public to be privy to material facts and allegations revealed in Mr. Cooper's testimony.
Despite the burning desire of liberals to see Mr. Rove imprisoned for the better part of Eternity, his role in the Valerie Plame scandal will earn him far less punishment. In Part One of this series, the case was made that the disclosure of Valerie Plame as an NOC operative did not rise to a violation of the Intelligence Identities Protection Act. Although conservative and Right-wing pundits have made this claim all along, it has been echoed even from progressive quarters. Long-time Bush Administration critic John Dean agreed, re-iterating in a Findlaw article published Friday that, "There is no solid information that Rove, or anyone else, violated this law..." Mr. Dean goes on to make the case that, despite Mr. Rove's relatively clear escape from prosecution under the Intelligence Identities Protection Act, his actions might be the subject of indictments pursuant to other statutes, not the least of which would be those relating to interference with or frustration of on-going intelligence activities. Unfortunately, Mr. Cooper's testimony apparently offers independent verification that Mr. Rove seemingly made his answers to Mr. Cooper's inquiries without mens rea, anyway. That Mr. Rove would claim he acted without criminal mind might very well serve to send into transcendent apoplexy those on the Left who assign him only slightly lesser status than Satan; but seeking and possibly even seeing the wrong charges brought against Mr. Rove will not only result in his exoneration, but also turn him into a far more politically powerful and dangerous man than he already is. Should Mr. Fitzgerald actually obtain an indictment against Mr. Rove for violating the Intelligence Identities Protection Act, the prosecutor will have revealed far more about his own desire to see Mr. Rove exonerated than he will have offered a federal district court in cause for a finding of guilt.
Leaks from the investigation reported last week by The New York Times and other papers describe high-level interest in the Administration about Mr. Wilson and his wife possibly as much as several months before Mr. Wilson wrote his op-ed piece refuting Mr. Bush's and others' statements about Saddam Hussein trying to buy yellowcake in Africa. Apparently, Colin Powell or another senior Administration official had ordered a report on Mr. Wilson, and that report was shared among the members of President Bush's inner circle. It is now claimed that Mr. Powell, himself, was hand-carrying a copy of it while in the company of other top Administration officials while they were on a trip in Africa several days after Mr. Wilson had gone public with his charges against Mr. Bush's representations. The order for the report coming before Mr. Wilson went public runs unquestionably counter to the claim by some that the entire scandal arose from an act of revenge by the Bush Administration against a critic. Even though outing his wife had the effect of revenge, the initial interest in Mr. Wilson by the Vice President and the Secretary of State has a far more troubling implication, one having to do with a seemingly unrelated cause of concern about the Bush Administration.
The Downing Street Memo is the name given in the press to what has actually come to be a series of documents from the British government during the run-up to the Iraqi War: these documents summarize remarks made by officials of the Blair government as they openly and rather glibly discussed the Bush Administration's "fixing" of intelligence to fit its claim that war against Saddam Hussein was necessary. This comports tightly with claims made within the United States, itself, notably those of now-retired Lt. Col. Karen Kwiatkowski concerning systematic activities at the Department of Defense to shape and distort information to be issued to public officials and the press. Similar claims have been made about how Vice President Richard Cheney personally oversaw and possibly bullied Central Intelligence Agency analysts to come up with results that fit the Bush Administration's desire to go to war against Saddam Hussein's Iraq.
Should Mr. Cheney, having himself already publicly invoked images of "mushroom clouds," have learned of a group within the Central Intelligence Agency that was sending out non-CIA personnel to investigate what the Administration had featuredmost starkly in Mr. Bush's 2003 State of the Union addressas clear and compelling cause for military action, then the Vice President would have had keen and highly prejudicial interest in finding out more, not just about Mr. Wilson, but also about the group within the Agency that had tasked Mr. Wilson to Africa in what was obviously a role not blindly seeking to prove everything the Administration was representing to the American public. It would be highly unlikely that Vice President Cheney, himself, would have passed information to outside sources; it would not be as unlikely for him to explicitly or indirectly do so through his chief of staff.
I. Lewis Libby
Named by Mr. Cooper this week as one of the individuals he contacted to confirm his information about Valerie Plame, Vice President Richard Cheney's Chief of Staff, I. Lewis Libby, is now directly in the finger-pointing sights of those seeking indictments against Bush Administration officials. Again, however, as is the case with Karl Rove, Mr. Cooper clearly states that he told the grand jury that Mr. Libby did nothing more than confirm elements of Mr. Cooper's information. And again, whether or not these men were involved in the original dissemination of that information to outside parties, Mr. Cooper's representations do nothing to confirm that. Mr. Libby, therefore, at worst will not be indicted on high charges arising from violation of the Intelligence Identities Protection Act. But even if he were to be so charged, the question remains one of who within the Bush Administration put the information into Judith Miller's hands in the first place.
Although Bush Administration neo-conservatives like Douglas Feith and Paul Wolfowitz have been suggested from time to time, a somewhat more pointed focus, at least in the Blogosphere, has turned to an individual largely unknown outside Washington circles: David Wurmser, who is described by writer Mark Perelman as a neo-conservative scholar with deep ties to Right-wing political interests in Israel. During the period in which the information about Mr. Wilson and his wife was passed to outsiders, Mr. Wurmser was the senior advisor to the Undersecretary of State for Arms Control and International Security, an office held at the time by none other than John Bolton, now the controversial and stalled nominee for United States Ambassador to the United Nations. Should Mr. Wurmser turn out to be the original leaker, Democratic opposition to Mr. Bolton's proposed appointment to the U.N. would become virtually insurmountable. Perhaps less obvious would be the damage done to certain Israeli interests, which have been among the Bush Administration's staunchest allies, were one of their policy conduits to be convicted of charges involving national security breaches. But the greatest fallout could come because of the choice appointment Mr. Wurmser was awarded subsequent to his work for John Bolton. In September of 2003, having burnished his credentials as a neo-conservative war hawk and advocate of destabilizing the existing regime in Syria, Mr. Wurmser was tapped by Dick Cheney to serve on the Vice President's national security advisory council, headed by none other than I. Lewis Libby. The stench of a political reward for a dirty deed well done is palpable.
This would not, of course, be the first time that a little-known and therefore little-noticed underling had carried water for better known and more visible government officials; and it is not difficult to imagine that nailing the heaviest indictment on Mr. Wurmser's hide would, in the long run, be a relief to the Bush Administration, provided it could spin Mr. Wurmser to look like an unsanctioned rogue who violated sacred trust vested in him by well-meaning Administration officials.
It would, however, put Judith Miller in a very difficult position: having had her original sources outed, she would find it quite difficult to retain her status as a martyr for First Amendment freedom of the press. As a result, she would have to scurry from the noble cover of suffering for the public good to the wholly selfish, but equally useful, cover of her own, personal right against self-incrimination. That, however, wouldn't be much of a deterrent to a dedicated prosecutor: even though she has shown her will not to incriminate herself, plenty of people within the Bush Administration would be more than happy to hang her out to dry right along with Mr. Wurmser.
And special prosecutor Patrick Fitzgerald would have quite a bit of incentive to wrap up his investigation with successful indictments and convictions of a minor Administration player and a pro-Administration journalist, both of whom had done their duty and thereby had outlived their usefulness.
The Dark Wraith has spoken.
Part One Part Two
of this series.