Novak column on Libby recycled "no underlying crime" misinformation

››› ››› KATHLEEN HENEHAN

In a July 4 column about President Bush's decision to commute the prison sentence of former vice presidential chief of staff I. Lewis "Scooter" Libby, syndicated columnist Robert D. Novak claimed that although former deputy Secretary of State Richard Armitage was the original source for Novak's July 16, 2003, column revealing Valerie Plame Wilson's CIA employment, special counsel Patrick Fitzgerald "plowed ahead with an inquiry that produced obstruction of justice and perjury charges against Libby, though there was no underlying crime." He added: "Why did Fitzgerald pursue the investigation when he knew Armitage was the leaker and had determined there was no evidence of a crime?" But as Media Matters for America has repeatedly noted, while Libby did not leak Plame's identity to Novak, he was reportedly the original source of the information for at least two other reporters during the summer of 2003. And as Fitzgerald clarified in a May 25 memorandum regarding Libby's sentencing: "The investigation was never limited to disclosure of Ms. Wilson's CIA affiliation to Mr. Novak; rather, from the outset the investigation sought to determine who disclosed information about Ms. Wilson to various reporters, including -- but not limited to -- Mr. Novak." Novak's suggestion that, legally, Armitage's leak of Plame's identity was the only disclosure that mattered also ignores that the statutes in question do not specify that the identity of a covert operative has to be published for a crime to have been committed.

Further, contrary to Novak's assertion that Fitzgerald "had determined there was no evidence of a crime," during an October 2005 press conference announcing Libby's indictment, Fitzgerald said that Libby's obstruction of justice had prevented the special counsel's office from determining if an underlying crime had been committed. Fitzgerald reiterated this point in the May 25 memorandum, writing that "the reasons why Mr. Libby was not charged with an offense directly relating to his unauthorized disclosures of classified information regarding Ms. Wilson included, but were not limited to, the fact that Mr. Libby's false testimony obscured a confident determination of what in fact occurred."

Novak wrote:

Even before he began his long investigation, Fitzgerald was aware that the leak to me that started the case was made by Richard Armitage, then deputy secretary of state. No proponent of the Iraq intervention, Armitage did not neatly fit left-wing conspiracy theories about Iraq policy. Consequently, he disappeared from the Internet blather about the CIA leak constituting treason.

Armitage was not indicted because the statute prohibiting disclosure of an intelligence agent's identity was not violated. But Fitzgerald plowed ahead with an inquiry that produced obstruction of justice and perjury charges against Libby, though there was no underlying crime.

[...]

Why did Fitzgerald pursue the investigation when he knew Armitage was the leaker and had determined there was no evidence of a crime? Why did Armitage, Secretary of State Colin Powell and the Justice Department fail to notify Bush about Armitage's culpability?

In order for Armitage to be the sole "leaker" of consequence, Fitzgerald's investigation would have to have been limited to the disclosure that led to his July 16, 2003, column -- the initial published report on Plame's CIA identity. In fact, as Media Matters previously noted, the statutes whose potential violation Fitzgerald set out to investigate, in particular the 1982 Intelligence Identities Protection Act (IIPA), do not specify that the identity of a covert operative has to be published for a crime to have been committed -- only that the information be intentionally disclosed to someone not authorized to know it. Moreover, as Fitzgerald stated in his May 25 memorandum, his investigation "sought to determine who disclosed information about Ms. Wilson to various reporters, including - but not limited to - Mr. Novak."

Evidence and testimony at Libby's trial showed that Libby -- while not the source for Novak's column -- was a source of information about Plame's CIA employment for at least two other journalists. As Media Matters has documented, journalist Murray Waas noted in his book The United States v. I. Lewis Libby (Union Square Press, June 2007) that former New York Times reporter Judith Miller testified January 30 that Libby had disclosed Plame's CIA employment to her at a July 8, 2003, breakfast meeting in Washington, D.C., well before Novak publicly revealed it in his July 14, 2003, column. Additionally, then-Time magazine White House correspondent Matthew Cooper, in his first-person account of his testimony before the grand jury in the leak investigation, identified White House senior adviser Karl Rove as his original source for Plame's identity and Libby as his confirming source.

Novak's subsequent claim that Fitzgerald "determined there was no evidence of a crime" also ignores another of Fitzgerald's comments about the case. As Media Matters has noted, during Fitzgerald's October 2005 press conference, a reporter specifically asked whether the investigation was over and whether the probe would fail to "lead to a charge of leaking." In response to the first question, the special counsel said that the investigation had not concluded. In response to the second question, Fitzgerald compared himself to an umpire who, while attempting to determine whether a pitcher intentionally hit a batter, had sand thrown in his eyes. Following Libby's conviction, Fitzgerald stated in his May 29 sentencing memorandum that the investigation turned up substantial evidence indicating that the leak itself may have constituted a crime. Furthermore, in his May 25 memorandum, Fitzgerald stated that "Libby's false testimony obscured a confident determination of what in fact occurred" and cited this as among the reasons he "was not charged with an offense directly relating to his unauthorized disclosures of classified information regarding Ms. Wilson":

Nor is it of any consequence to Mr. Libby's conduct - perjury and obstruction of justice - that others may have engaged in similar disclosures of classified information for which neither Mr. Libby nor they were charged. At the end of the investigation, after all the information was gathered - including testimony of the reporters and relevant documents - a decision was made not to pursue substantive charges for the disclosure of classified information about Ms. Wilson's CIA employment. This fact does not support the logical leap that investigators knew at the beginning of the investigation that no such charges would be brought, nor does it have any bearing on the propriety of Mr. Libby's prosecution for perjury.

While not commenting on the reasons for the charging decisions as to any other persons, we can say that the reasons why Mr. Libby was not charged with an offense directly relating to his unauthorized disclosures of classified information regarding Ms. Wilson included, but were not limited to, the fact that Mr. Libby's false testimony obscured a confident determination of what in fact occurred, particularly where the accounts of the reporters with whom Mr. Libby spoke (and their notes) did not include any explicit evidence specifically proving that Mr. Libby knew that Ms. Wilson was a covert agent.

In his July 4 column, Novak also asserted that "the leak to me that started the case was made by Richard Armitage," but Novak failed to disclose -- as he had in a July 12, 2006, column -- that his sources for the Plame column also included Karl Rove and then-CIA spokesman Bill Harlow. Novak wrote in 2006:

One was by my principal source in the Valerie Wilson column, a source whose name has not yet been revealed. The other was by presidential adviser Karl Rove, whom I interpret as confirming my primary source's information. In other words, the special prosecutor knew the names of my sources.

When Fitzgerald arrived, he had a third waiver in hand -- from Bill Harlow, the CIA public information officer who was my CIA source for the column confirming Mrs. Wilson's identity. I answered questions using the names of Rove, Harlow and my primary source.

Posted In
National Security & Foreign Policy, Intelligence, War in Iraq
Stories/Interests
CIA Leak Investigation
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