In a November 4 Wall Street Journal op-ed (subscription required), David B. Rivkin Jr. and Lee A. Casey said that special counsel Patrick J. Fitzgerald “implied” that the reason he did not indict anyone for leaking the identity of CIA operative Valerie Plame was that there was “insufficient evidence” that the leak itself constituted a crime. Rivkin and Casey's statement is highly misleading. Fitzgerald neither explicitly nor implicitly attributed the absence of charges for the underlying offense to “insufficient evidence.” Rather, he explicitly attributed the absence of charges for the underlying offense to obstruction by I. Lewis “Scooter” Libby, Vice President Dick Cheney's former chief of staff, who was indicted on October 28 for perjury, obstruction of justice, and making false statements. In the op-ed, Rivkin and Casey also repeated the false claim that Plame's husband, former ambassador Joseph C. Wilson IV, outed Plame when he “published her name in his biographical materials.” Additionally, both Rivkin and Casey worked for the Reagan and George H.W. Bush administrations during the 1980s and early 1990s, yet the Journal identified them only as “lawyers in Washington.”

During the Reagan years, Rivkin served under then-Vice President Bush as legal adviser to the president's counsel and as deputy director of the Justice Department's Office of Policy Development. Rivkin later served as associate executive director and counsel of President George H.W. Bush's Council on Competitiveness at the White House, and as special assistant for domestic policy to Vice President Dan Quayle. Casey worked in the Office of Legal Policy from 1986 to 1990 and in the Justice Department's Office of Legal Counsel from 1992 to 1993.

In their Journal op-ed, Rivkin and Casey argued that “the revelation of Ms. Plame's connection to the CIA was a public service, neither criminal nor unethical,” writing:

Moreover, whatever value Ms. Plame may have had as a viable covert agent was surely eliminated years before the alleged “leak,” when she married a U.S. diplomat who himself published her name in his biographical materials. The fact that her husband chose to become a public figure in a debate about the very discipline she pursued at the CIA -- WMDs -- eliminated whatever shreds of anonymity that remained. The reason Mr. Fitzgerald did not charge anyone with leaking Ms. Plame's name, then, is clear. It was not because, as he implied at his Oct. 28 press conference, there was insufficient evidence. It was, rather, because there was in fact no crime as a matter of law. The true scandal here is that, despite Ms. Plame's non-covert status, Mr. Fitzgerald pressed ahead, forcing numerous journalists to testify and actually jailing Judith Miller.

Fitzgerald, however, did not simply claim a lack of evidence. As Media Matters for America has noted, an October 28 press release summarizing Libby's indictment explicitly stated that the grand jury's efforts to investigate the alleged criminality of the leak “were obstructed when Mr. Libby lied about how and when he learned and subsequently disclosed classified information about Valerie Wilson.” During a press conference that same day, when asked by a reporter if “this [is] another leak investigation that doesn't lead to a charge of leaking,” Fitzgerald responded, in part: “As you sit here now, if you're asking me what his motives were, I can't tell you; we haven't charged it. So what you were saying is the harm in an obstruction investigation is it prevents us from making the fine judgments we want to make.”

Additionally, as Media Matters has documented numerous times, knowledge of Plame's name prior to the leak is irrelevant, both as a practical and legal matter. It was her identity as a CIA employee that was classified.