The Failed Fitzgerald Investigation

Lewis Libby has been accused of obstructing justice and lying to a grand jury, which are serious charges regardless of how anyone tries to spin it. But special prosecutor Patrick Fitzgerald needs to be held to account for the way in which he undertook this investigation.

The whole “Plamegate†fiasco is analogous to a murder investigation in which no one was killed, or a theft investigation where nothing was stolen. Isn’t step one to first ascertain whether the crime in question has actually been committed? It seems that Fitzgerald may have been absent the day they taught legal reasoning in law school.

If I’m correct about Valerie Plame’s status — and all indicators suggest that I am — then this investigation should have taken no longer than a single day. Fitzgerald should have called CIA director George Tenet, asked of Plame’s status, and judged whether it was even possible for anyone to have violated the Intelligence Identities Protection Act. At that point he should have given a statement saying that he cannot investigate a crime which did not happen. Case closed. Instead, Fitzgerald continued for another 22 months, and ended up catching Lewis Libby in a crime akin to giving a false alibi for a murder which never occurred.

Unless and until Fitzgerald explicitly states that the IIPA was violated, his entire investigation should be considered a sham and his charges against Libby a creation of the process, making them rather dubious.

FILED UNDER: Law and the Courts, , , ,
Leopold Stotch
About Leopold Stotch
“Dr. Leopold Stotch” was the pseudonym of political science professor then at a major research university inside the beltway. He has a PhD in International Relations. He contributed 165 pieces to OTB between November 2004 and February 2006.


  1. Brian J. says:

    Hey, your imaginary Right to Privacy in the Constitution does not cover telling authorities the whole truth, whether you remember it or not.

  2. Bithead says:

    Correct, all points.

  3. odograph says:

    This is so silly.

    Fitzgerald got his hands on one corner of a cover-up, and you fault him rather than those who cover, deceive, and undermine our system of government.

    How … tribal of you.

  4. Don says:

    What was the underlying crime in the Clinton impeachment?

  5. cirby says:

    This is so silly.

    Fitzgerald got his hands on one corner of a cover-up

    Actually, he got his hands on one corner of what some people claimed to be a huge, important crime, which apparently never happened.

    What was the underlying crime in the Clinton impeachment?

    Lying to a Grand Jury, which he certainly did, centering around a sexual harassment case in which he ended up paying out almost a million dollars.

  6. odograph says:

    cirby, I notice that you are careful with your words:

    a huge, important crime, which apparently never happened.

    Why “apparently?” … because we can’t tell, because there was a cover-up.

    Mr. Fitzgerald spoke to this issue, and I hope you’ve seen his comments by now. Basically the serious issue of national security could not be addressed because of the obstruction of justice.

  7. Anderson says:

    Wow, Mr. Stotch, you are totally insensible to argument. Or you haven’t been reading your own comment threads.

    There are other possible crimes than violation of the IIPA.

    Unless/until you catch up with JJ and the rest of us in acknowledging this fact, you will be arguing in your own private Idaho.

  8. Jeff Keller says:


    What do you really know about law and about his case?

  9. ultraw says:

    From Comey’s letter to Fitzgerald 12/20/03 assignng the investigation to him:

    “…I hereby delegate to you all authority of the Attorney General with respect to the Department’s investigation into the alleged unauthorized disclosure of a CIA employee’s identity,…”

    The investigation was not limited to the terms of the IIPA. That statute is not even mentioned in the mandate.

    From the indictment:

    “At all relevant times from January 1, 2002 through July 2003, Valerie Wilson was employed by the CIA, and her employment status was classified. Prior to July 14, 2003, Valerie Wilson’s affiliation with the CIA was not common knowledge outside the intelligence community.”

    If that’s not explicit enough for you…

    Didn’t you grasp the significance of his baseball analogy? The deed isn’t at issue with Fitzgerald. The state of mind is. But Libby chose to lie, to get in the way of discerning the truth, so that’s what he’ll pay for.

  10. George Tenet is a Clinton appointee. The CIA botched the evidence, both in its gathering and in its analysis in both the cases of the 9/11 attacks and Iraq’s WMD programs. Bush intended to restructure the CIA, and they didn’t like that.

    If Joe Wilson could be so brazenly partisan as to set this whole trap in motion, isn’t it also likely that Tenet wouldn’t lift a finger to stop Fitzgerald’s investigation? Besides, the whole thing got started on a referral from the CIA, so you might rethink Tenet’s answering the question about Plame’s status and the legality of the leak.

    When Lewis Libby gets his day in an actual court, and he will, I assure you, the defense attorneys should call Wilson, Plame and Tenet to testify, under oath, about their involvement in this whole mess, Fitzgerald should be fired from the Justice Department and a review of the grand jury and its proceedings should be begun. Also, the CIA and every member of the grand jury should be investigated to determine who was leaking information to Sen. Shumer, the New York Times and every other Democrat who stuck his/her nose into this mess.

  11. Elmo says:

    Elmo ….. with back turned to audience (and head bowed). Then turning around…. after assuming the character of a L3 ….


    Fitzey’s party was the biggest cirlce jerk in the history of civilization. Unfortunately the Dems are still all standing around in a circle. And still j*rking. An autopolitical orgy.

  12. Don says:

    So Clinton’s crime was in lying to a grand jury…the underlying “crime” was in fact a civil offense, not a crime per se.

    And this is different from the Libby indictment…how?

  13. Allwar Isbad says:

    The fundamental flaw in your assertion is that it was the CIA that sent in the complaint to the DOJ, regarding a covert operative being outed. You guys really need to get your facts straight.

    Or you may now suggest that it is all a CIA conspiracy to go after the WH …

  14. ken says:

    While I would not be surprised if the people we depend upon to defend our national security do indeed despise and loathe the Bush administrations (what patriot doesn’t?) and want to see them defeated this is not revelant to the fact that people in the Bush administration destroyed part of our national security infrastructure for political reasons.

    Normally we would call this treason.

  15. Reporter for Doody says:

    The underlying crime for Clinton was not having sex with Monica – that wasnt a crime. He tried to get Monica to submit a false statement to the grand jury. That is a crime!

  16. cali_sun says:

    Considering that Fitzgerald has prosecuted 60 Republicans, and 2 Democrats, does’nt that explain a bit more about his overzealous motivation? Wilson, the liar and whiner, and obstructionist should have been charged together with his wife, and the so-called insider CIA, who’s only purpose was to undermine, and bring down the Bush Administration.

  17. Don says:

    So is it a crime or isn’t it to lie to a grand jury?

  18. odograph says:

    Considering that Fitzgerald has prosecuted 60 Republicans, and 2 Democrats, does’nt that explain a bit more about his overzealous motivation?

    As a Republican, such numbers make me embarassed.

  19. ICallMasICM says:

    ‘And this is different from the Libby indictment…how?’

    How….I missed where Clinton was indicted.

  20. Just a couple of photos of Fitzgerald in Ireland

  21. Hal says:

    Wow, Fitz has empaneled another GJ after 22 months just to ensure that everyone knows there wasn’t a crime and that the administration hasn’t – in any way – done anything near a crime.

    Dream on Leopold. It ain’t over ’till it’s over. Luckily, this particular issue isn’t going to be decided in the court of blogospheric punditry.

    I can’t believe this post. Too bad it missed the wanker of the week deadline.

  22. Alexander Mac Donald says:

    It could have been settled in one day? Maybe. But if a crime was committed in the course of the investigation on that one day, then the determination as to whether a crime has been committed becomes doubly problematic and the investigation must branch out. That — except for the one day part of it — is what happened at least five times (as I am a mere citizen and not a prosecutor, juror or any other court official, I am free to ignore the presumption of innocence since I shall have no voice in determining whether the guy (Libby and his bosses) is guilty as cjarged. In fact, he did what he’s accused of — lying, obstructing justice. But maybe these are not crimes in his case. A jury can decide on that in less than one day. Ten minutes should be enough. Let’s wait and see. But he’s still guilty in fact if not in law.

  23. LR says:

    That’s a truly absurd post. If you think that’s how a criminal investigation proceeds, thank God you aren’t in law enforcement.

    The finer points of the underlying laws have yet to be litigated. Neither Fitzgerald nor the rest of the world at large knows exactly what makes for covert status.

    It’s really sad and funny to watch people try to whitewash this away. And attack Fitzgerald. Very genuine, honest and ethical.

  24. Dan says:

    unbelievable–Clinton lies about some sexcapades and the righties are all over it. Now we have administration officials who commit TREASON and endanger all of us–deliberately outing a covert agent working in WEAPONS OF MASS DESTRUCTION for petty revenge. And the wingnuts just can’t accept that reality so they attack Wilson, Plame, Fitzgerald, the CIA, all Democrats, etc. Pathetic. But it is an interesting case study in trash politics and in human psychology.