Plame Game Over?

Patrick J. Fitzgerald, the special prosecutor investigating the Valerie Plame affair, has said that his investigation has been essentially completed for several months according to a report in the American Prospect.

Exclusive: Plame Game Over?

The special prosecutor investigating whether any Bush administration official may have violated federal law by leaking the identity of CIA officer Valerie Plame to columnist Robert Novak recently informed a federal court that his investigation has been “for all practical purposes complete” since October 2004. The disclosure by special counsel Patrick J. Fitzgerald that he completed virtually all aspects of his federal grand jury investigation as long as six months ago was made in court papers the prosecutor filed on March 22. Despite the fact that the filing has been on the public record since then, it has previously been unreported.

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In his now-famous column, Novak charged that Wilson’s allegations were not to be trusted because he was a partisan and also because he had been sent on the mission in the first place only after having been recommended by his wife, Plame. Novak referred to Plame in the column as “an Agency operative on weapons of mass destruction.” Later, Novak said that his use of the term was a mistake. He now claimed that his sources only meant to say she worked in some way for the agency. But Novak’s various accounts of what administration officials told him have been inconsistent, and more than two months passed before he acknowledged that he had mistakenly used the word “operative” to describe Plame — that is, after the matter become one of public controversy when the CIA requested that Justice Department investigate the leak. And investigators working for Fitzgerald have been said to be skeptical of Novak’s claims that he identified Plame as a CIA “operative” by mistake. By saying that he made a mistake in calling Plame an “operative,” Novak not only was portraying himself in a more favorable light, but he also made it exceedingly more difficult to criminally charge the leakers.

That’s because the law prohibiting the disclosure of the identities of CIA operatives covers only disclosures made with the purposeful intent of knowingly exposing an agent and wanting to harm U.S. intelligence efforts. In arguing that Fitzgerald should establish that a crime was committed before the trial judge, attorneys Victoria Toensing and Bruce W. Sanford, in their legal brief, cited, among other things, Novak’s claims that the official who leaked him the information about Plame did not intend to expose her status as a covert CIA operative: “The statute was specifically `crafted with care’ to be used in limited circumstances, because Congress wanted to `exclude the possibility that casual discussion, political debate, the journalistic pursuit of a story on intelligence, or the disclosure of illegality or impropriety in government will be chilled by the enactment of the bill. Congress intended only disclosures that `clearly represent a conscious and pernicious effect to identify and expose agents with the extent to impair or impede the foreign intelligence activities of the United States.’”

In the meantime, it is still unclear whether Novak has cooperated with Fitzgerald’s investigation, or even whether he testified to the grand jury. Novak has steadfastly refused to answer any questions about what he might or might not have done. He did not return phone calls for comment for this article. But it seems inconceivable that Fitzgerald would have concluded most of his probe months ago, four current and former federal prosecutors said in interviews, without attempting to obtain Novak’s cooperation or testimony. Says one: “He is the one you would want to hear from.”

Floyd Abrams, the well-known First Amendment attorney who is representing The New York Times and Time in the Plame matter, told me: “In his motion, [Fitzgerald] represented that he is finished, except for the testimony of my clients. I don’t think he could say to the court that he is at that point unless he has already heard from Novak.”

My first post (of many) on this seems to be about right:

If, indeed, any Administration official leaked the name of an undercover CIA agent, risking not only her life but that of her sources, they should be imprisoned. If it can be demonstrated that President Bush knew of this, it would of course be an impeachable offense for which he should be removed from office. But let’s wait and see.

I recall reading the Novak column in question, and didn’t think anything was unusual at the time. The mention of Wilson’s wife comes late in the piece and very casually: [excerpt] I just naturally assumed “operative” meant something other than “undercover agent,” since CIA presumably has people openly serving as nuclear weapons inspectors and analysts.

Despite the fanfare that this case had initially, it seems to be ending with a whimper.

FILED UNDER: Intelligence, Law and the Courts,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.