What Did Rove and Libby Do in Plame Case?

Jim VandeHei and Walter Pincus attempt to piece together the role of White House domestic policy advisor Karl Rove and Cheney chief of staff “Scooter” Libby in the Valerie Plame matter.

Role of Rove, Libby in CIA Leak Case Clearer (WaPo, A5)

With New York Times reporter Judith Miller’s release from jail Thursday and testimony Friday before a federal grand jury, the role of I. Lewis “Scooter” Libby, Vice President Cheney’s chief of staff, came into clearer focus. Libby, a central figure in the probe since its earliest days and the vice president’s main counselor, discussed Plame with at least two reporters but testified that he never mentioned her name or her covert status at the CIA, according to lawyers in the case. His story is similar to that of Karl Rove, President Bush’s top political adviser. Rove, who was not an initial focus of the investigation, testified that he, too, talked with two reporters about Plame but never supplied her name or CIA role.

Their testimony seems to contradict what the White House was saying a few months after Plame’s CIA job became public. In October 2003, White House spokesman Scott McClellan told reporters that he personally asked Libby and Rove whether they were involved, “so I could come back to you and say they were not involved.” Asked if that was a categorical denial of their involvement, he said, “That is correct.”

What remains a central mystery in the case is whether special prosecutor Patrick J. Fitzgerald has accumulated evidence during his two-year investigation that any crime was committed. His investigation has White House aides and congressional Republicans on edge as they await Fitzgerald’s announcement of an indictment or the conclusion of the probe with no charges. The grand jury is scheduled to expire Oct. 28, and lawyers in the case expect Fitzgerald to signal his intentions as early as this week.

I would argue that it’s not unreasonable, when asked whether they had leaked the fact that Valerie Plame was a CIA officer to the press, for Rove and Libby to have said No if in fact they did not mention the name “Valerie Plame” or indicate that she is in the CIA.

Many lawyers in the case have been skeptical that Fitzgerald has the evidence to prove a violation of the Intelligence Identities Protection Act, which is the complicated crime he first set out to investigate, and which requires showing that government officials knew an operative had covert status and intentionally leaked the operative’s identity.

But a new theory about Fitzgerald’s aim has emerged in recent weeks from two lawyers who have had extensive conversations with the prosecutor while representing witnesses in the case. They surmise that Fitzgerald is considering whether he can bring charges of a criminal conspiracy perpetrated by a group of senior Bush administration officials. Under this legal tactic, Fitzgerald would attempt to establish that at least two or more officials agreed to take affirmative steps to discredit and retaliate against Wilson and leak sensitive government information about his wife. To prove a criminal conspiracy, the actions need not have been criminal, but conspirators must have had a criminal purpose.

Lawyers involved in the case interviewed for this report agreed to talk only if their names were not used, citing Fitzgerald’s request for secrecy. One source briefed on Miller’s account of conversations with Libby said it is doubtful her testimony would on its own lead to charges against any government officials. But, the source said, her account could establish a piece of a web of actions taken by officials that had an underlying criminal purpose.

So, lawyers working on a case about government officials giving secret information to reporters are themselves violating a secrecy pledge and giving secret work product information to reporters? Lovely.

Aside from that, what exactly would Rove and Libby “underlying criminal purpose” have been? Rather clearly, the goal was to discredit Joe Wilson not “out” his wife. So, their purpose wasn’t criminal. The allegation is that their method–knowingly exposing an undercover intelligence operative–was. Most of the evidence, though, seems to point to Plame 1) not having functioned as an undercover operative since marrying Wilson and 2) her employment with the CIA being common knowledge.

Other lawyers in the case surmise Fitzgerald does not have evidence of any crime at all and put Miller in jail simply to get her testimony and finalize the investigation. “Even assuming . . . that somebody decided to answer back a critic, that is politics, not criminal behavior,” said one lawyer in the case. This lawyer said the most benign outcome would be Fitzgerald announcing that he completed a thorough investigation, concluded no crime was committed and would not issue a report.

Prosecutors don’t have the power to put people in jail for contempt of court; only judges can do that. Still, if Fitzgerald honestly expected to get no meaningful evidence from Miller’s testimony, it would be a travesty indeed to plead for her imprisonment simply so that he could cross every “t” and dot every “i” in his paperwork.

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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.

Comments

  1. ken says:

    Most of the evidence, though, seems to point to Plame 1) not having functioned as an undercover operative since marrying Wilson and 2) her employment with the CIA being common knowledge.

    Since her best friends, her family and her neighbors did not know she worked for the CIA I would have to say that his ‘common knowledge’, if common at all, was only between those who had a need to know. For you to imply that this means it was public knowledge is shameless.

  2. Observer says:

    Interestingly enough everyone here is ignoring the main point. Cheny, Rove and Libby signed official (under penalty of perjury) statements that they had never TALKED to any reporters about Plame until after everything was published in the papers. This is PERJURY, clear and simple. Of course, no Bush administration official has ever been disiplined for breaking the law.

  3. James Joyner says:

    Did the CIA “Out” Valerie Plame?
    Andrew McCartney, NRO, July 18, 2005,

    THE MEDIA TELLS THE COURT: PLAME’S COVER WAS BLOWN IN THE MID-1990s
    As the media alleged to the judges (in Footnote 7, page 8, of their brief), Plame’s identity as an undercover CIA officer was first disclosed to Russia in the mid-1990s by a spy in Moscow. Of course, the press and its attorneys were smart enough not to argue that such a disclosure would trigger the defense prescribed in Section 422 because it was evidently made by a foreign-intelligence operative, not by a U.S. agency as the statute literally requires.

    But neither did they mention the incident idly. For if, as he has famously suggested, President Bush has peered into the soul of Vladimir Putin, what he has no doubt seen is the thriving spirit of the KGB, of which the Russian president was a hardcore agent. The Kremlin still spies on the United States. It remains in the business of compromising U.S. intelligence operations.

    Thus, the media’s purpose in highlighting this incident is blatant: If Plame was outed to the former Soviet Union a decade ago, there can have been little, if anything, left of actual intelligence value in her “every operation, every relationship, every network” by the time anyone spoke with Novak (or, of course, Corn).

    THE CIA OUTS PLAME TO FIDEL CASTRO
    Of greater moment to the criminal investigation is the second disclosure urged by the media organizations on the court. They don’t place a precise date on this one, but inform the judges that it was “more recent” than the Russian outing but “prior to Novak’s publication.”

    And it is priceless. The press informs the judges that the CIA itself “inadvertently” compromised Plame by not taking appropriate measures to safeguard classified documents that the Agency routed to the Swiss embassy in Havana. In the Washington Times article — you remember, the one the press hypes when it reports to the federal court but not when it reports to consumers of its news coverage — Gertz elaborates that “[t]he documents were supposed to be sealed from the Cuban government, but [unidentified U.S.] intelligence officials said the Cubans read the classified material and learned the secrets contained in them.”

    Thus, the same media now stampeding on Rove has told a federal court that, to the contrary, they believe the CIA itself blew Plame’s cover before Rove or anyone else in the Bush administration ever spoke to Novak about her. Of course, they don’t contend the CIA did it on purpose or with malice. But neither did Rove — who, unlike the CIA, appears neither to have known about nor disclosed Plame’s classified status. Yet, although the Times and its cohort have a bull’s eye on Rove’s back, they are breathtakingly silent about an apparent CIA embarrassment — one that seems to be just the type of juicy story they routinely covet.

    A COMPLETE DEFENSE?
    The defense in Section 422 requires that the revelation by the United States have been done “publicly.” At least one U.S. official who spoke to Gertz speculated that because the Havana snafu was not “publicized” — i.e., because the classified information about Plame was mistakenly communicated to Cuba rather than broadcast to the general public — it would not available as a defense to whomever spoke with Novak. But that seems clearly wrong.

    First, the theory under which the media have gleefully pursued Rove, among other Bush officials, holds that if a disclosure offense was committed here it was complete at the moment the leak was made to Novak. Whether Novak then proceeded to report the leak to the general public is beside the point — the violation supposedly lies in identifying Plame to Novak. (Indeed, it has frequently been observed that Judy Miller of the Times is in contempt for protecting one or more sources even though she never wrote an article about Plame.)

    Perhaps more significantly, the whole point of discouraging public disclosure of covert agents is to prevent America’s enemies from degrading our national security. It is not, after all, the public we are worried about. Rather, it is the likes of Fidel Castro and his regime who pose a threat to Valerie Plame and her network of U.S. intelligence relationships. The government must still be said to have “publicized” the classified relationship — i.e., to have blown the cover of an intelligence agent — if it leaves out the middleman by communicating directly with an enemy government rather than indirectly through a media outlet.

    LINGERING QUESTIONS
    All this raises several readily apparent questions. We know that at the time of the Novak and Corn articles, Plame was not serving as an intelligence agent outside the United States. Instead, she had for years been working, for all to see, at CIA headquarters in Langley. Did her assignment to headquarters have anything to do with her effectiveness as a covert agent having already been nullified by disclosure to the Russians and the Cubans — and to whomever else the Russians and Cubans could be expected to tell if they thought it harmful to American interests or advantageous to their own?

    If Plame’s cover was blown, as Gertz reports, how much did Plame know about that? It’s likely that she would have been fully apprised — after all, as we have been told repeatedly in recent weeks, the personal security of a covert agent and her family can be a major concern when secrecy is pierced. Assuming she knew, did her husband, Wilson, also know? At the time he was ludicrously comparing the Novak article to the Ames and Philby debacles, did he actually have reason to believe his wife had been compromised years earlier?

    And could the possibility that Plame’s cover has long been blown explain why the CIA was unconcerned about assigning a one-time covert agent to a job that had her walking in and out of CIA headquarters every day? Could it explain why the Wilsons were sufficiently indiscrete to pose in Vanity Fair, and, indeed, to permit Joseph Wilson to pen a highly public op-ed regarding a sensitive mission to which his wife — the covert agent — energetically advocated his assignment? Did they fail to take commonsense precautions because they knew there really was nothing left to protect?

    We’d probably know the answers to these and other questions by now if the media had given a tenth of the effort spent manufacturing a scandal to reporting professionally on the underlying facts. And if they deigned to share with their readers and viewers all the news that’s fit to print … in a brief to a federal court.

  4. Herb says:

    All this “I Gotcha” game playing really makes one sick. Just tell me where Mr. and Mrs. average American stands on this. Most don’t give a damn and further don’t care. The average American sees this entire mess as nothing more than a big waste of taxpayer money to play a game that only the Washington insiders and the press care about.

    And, this Miller broad should have been put in jail for about 10 years. She is “just one more” reporter that is out to make a big name for herself and no more cares about you or I that a man on the moon. In fact, there are a whole bunch of “no it alls”, “Look at Me”, “I am great” so called reporters out there just like her and who also belong in jail.

    Can’t figure out as to “who gives a damn” in the mainstream public.

    Just tired of these I gotcha, look how bad the other side is, I am pure as the driven snow, games that are played in Washington instead of taking care of the countries business as they should be doing.

    If these “Representatives” would do a little more about reducing the price of gasoline, instead of playing their kid games, we would all be a lot better off.

  5. Jack Ehrlich says:

    I have to ask Ken how he knows her friend, family, and neighbors did not know where she worked. Her husband knew. Why should they not know? She worked a desk at Langley. Went there daily in a gold Jaguar Convertible. Really undercover. Her husband wrote an article published in the NY Times contradicting what the Bush adminstration was saying about uranium from Africa. His statement that he was sent at the request of the Vice President’s office, was enough to start an inquiry. If anyone outed V. Plame, it was Joseph Wilson. As a political shill for the Kerry campaign. He was found to be a liar by congressional investigation. If Judith Miller went to jail to protect a source, it was not Scooter Libby. But it might have been Joseph Wilson, who, if he were the one to leak her identity, could blame the Bush adminstration, as is the way of the left. Blame the other guy, with or without evidence.

  6. Demosophist says:

    Nothing about this makes sense to me. First of all Wilson found that Middle Eastern Totalitarians were attempting to buy uranium in Niger. It’s not clear whether the offending state was Iraq or Iran, but he definitely did NOT find that Iraq was beyond reproach, and it appears that they may well have been attempting to buy uranium.

    So that’s one rather odd anomaly. The Bush team obviously must have known this, so why didn’t they just say that Wilson was lying: that he had testified to something exactly the opposite of what his NYT article said?

    Second, Plame doesn’t appear to have been an active clandestine agent at the time this occurred, nor at any time in the recent past. So what’s the fuss about?

    Finally, there’s this odd matter of Judith Miller, and her self-destructive tendency to do jail time to protect a source who, apparently, didn’t care about being protected. The lawyerly justifications for this sound tortured, at the very least.

    Nothing about this story adds up. But the anomalies don’t suggest that the Whitehouse is blameless. They suggest that both sides are hiding something, whether for national security or for personal or partisan reasons.

    As Thoreau used to say: “There’s a fish in the milk.”

  7. ken says:

    I have to ask Ken how he knows her friend, family, and neighbors did not know where she worked. Her husband knew. Why should they not know?

    Because she, and her husband, told everybody that she worked for another company which was a cover for her real job at the CIA. None of her family or friends or neighbors knew she worked for the CIA until they read about it in the paper.

    Even today she will not talk about what her real job at the CIA with any of her family or friends because it is top secret stuff.

    Her husband was an ambassador and highly praised for his toughness with Saddam Hussein at the start of the Gulf War.

    Both are patriotic Americans who have done more to help this country than people like you ever will. If you love America, you should call for Bush to be impeached for his treachery.

  8. Herb says:

    There goes Ken again, Just like a broken record. Problem is his words go round and round saying the same Hate Bush rhetoric over and over again, and his spinning head just don’t catch up with his words.

    Perhaps Ken,s head can’t catch up because there is nothing there.

    Ken, Give it a break.

  9. Anderson says:

    I seem to recall the NRO piece being laughed out of town at the time, but then, there are so many such NRO pieces …

    As usual, we’re ignoring the Espionage Act, under which Larry Franklin was just indicted, and which is plenty broad enough to catch any wrongdoing in this case.

    We should see what cards Fitzgerald’s holding in the near future, so when that happens, we can discuss whether Plame went jogging in a “CIA” jersey every Saturday morning. For the time being, let’s just note that the CIA itself seems to’ve thought she was a covert operative. I mean, if we want to take their opinion into account.