On the June 1 broadcast of his Newsradio 850 KOA show, host Mike Rosen and guest Victoria Toensing made numerous false and misleading statements about the outing of former covert CIA agent Valerie Plame and the trial of former vice presidential chief of staff I. Lewis “Scooter” Libby. The pair's misrepresentations included Rosen's falsehoods that Special Counsel Patrick Fitzgerald “refused to disclose [evidence] during the trial regarding Valerie Plame's covert status” and that he “refused the defense's requests ... for some official certification of Valerie Plame's identity.” In fact, Libby's defense team blocked the government from offering evidence about Plame's status at trial. Further, Fitzgerald provided Libby's defense team certification of Plame's covert status during pretrial discovery.

Rosen identified Toensing as someone who "[d]uring the heat of the Valerie Plame-Joe Wilson business" had “written widely on this topic.” Media Matters for America has noted numerous instances in which she has distorted the Plame leak and the Libby trial. In her appearance on Rosen's June 1 broadcast, Toensing falsely suggested that unclassified CIA documents verifying that Plame had covert status at the time her identity was leaked to the press said only that she was “qualified to be covert.” In fact, the CIA summary explicitly states, “At the time of the initial unauthorized disclosure in the media of Ms. Wilson's employment relationship with the CIA on 14 July 2003, Ms. Wilson was a covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States.” [emphasis added]

Rosen's discussion of the Plame case followed Fitzgerald's May 29 public disclosure of the unclassified CIA summary of Plame's employment history. As Colorado Media Matters noted, Fitzgerald had filed the summary with a pre-sentencing memo in the Libby case. On June 5 Libby was sentenced to 30 months in prison and a $250,000 fine “for lying to investigators about his role in leaking” Plame's identity.

From the June 1 broadcast of Newsradio 850 KOA's The Mike Rosen Show:

ROSEN: Our headliner in this first hour -- we'll take a quick break and then we'll get started -- is Victoria Toensing. Perhaps you recall her name. During the heat of the Valerie Plame-Joe Wilson business -- she's written widely on this topic. There's a, a story that's hot in left-wing circles today, kind of a left-wing “I gotcha” -- or so they think. And apparently the special prosecutor, Patrick Fitzgerald, in pleading to the court for a very stiff sentence for Scooter Libby, has introduced some evidence that he refused to disclose during the trial regarding Valerie Plame's covert status.

[...]

In any event, while, while the left is excited that this is vindication -- that's, I guess, one self-serving way of looking at it. I look at it in an entirely different direction and that is, what it emphasizes is that Fitzgerald, from the very outset, understood that there was no violation of the Espionage Act or the Intelligence Identities Act, the 1982 act which requires intent to reveal the identity of a covert agent. And had Fitzgerald believed that he could make that charge stick, he would have prosecuted Libby for that. But it was clear that there was no intent in that the people involved, including Richard Armitage, who was the very first one to leak Valerie Plame's name -- inadvertently -- or her identity, to a journalist. He was an opponent of the Bush strategy in Iraq and wasn't looking to undermine Valerie Plame or the agency. He was working at the State Department, of course. Fitzgerald clearly knew this and that's why he refused the defense's requests repeatedly during the trial for some official certification of Valerie Plame's identity. Making it very clear, Fitzgerald did, that this was a trial about perjury and obstruction of justice and it didn't matter what Valerie Plame's status was.

Contrary to Rosen's assertion that Fitzgerald “refused to disclose” evidence about Plame's covert status during the trial, it was in fact Libby's defense team that on October 30, 2006, filed a motion “to exclude evidence and argument concerning” Valerie Plame's employment status:

I. Lewis Libby, through his counsel, hereby moves in limine to preclude the government from offering any evidence or argument:

1. that Valerie Wilson's employment status with the Central Intelligence Agency (the “CIA”) was, in fact, classified or covert; and

2. that any damage to the national security, the CIA, or Ms. Wilson herself was, or could have been, caused by the disclosure of that status.

On November 14, 2006, Fitzgerald filed an unsuccessful motion opposing Libby's. Fitzgerald explained that while it would not be necessary to offer evidence of Plame's covert status to pursue the perjury and obstruction of justice charges against Libby, he was prepared to introduce such evidence were the defense team to “open the door” by denying that Plame's status was classified or covert:

Defendant is charged with obstruction of justice, perjury, and making false statements to investigators, in violation of 18 U.S.C. §§ 1503, 1623 and 1001, in connection with an investigation concerning leaks to reporters of previously-classified information regarding the employment of Valerie Plame Wilson, the wife of former Ambassador Joseph Wilson. Defendant has been provided with a disclosure of information from the Central Intelligence Agency (“CIA”) establishing that Ms. Wilson's employment was previously classified, and outlining the potential risks of publicly disclosing her employment. Defendant seeks to preclude the government from offering this evidence at trial.

[...]

The government agrees [with Libby] that evidence establishing the facts that “Valerie Wilson's employment status with the Central Intelligence Agency (the ”CIA") was ... classified or covert" and that “any damage to the national security, the CIA, or Ms. Wilson herself was ... or could have been, caused by the disclosure of that status” (Mtn. at 1) is not strictly necessary to prove that the charged false statements were material to the grand jury's investigation and within the jurisdiction of the executive branch. Nor is evidence of these facts necessary to a determination that defendant had a motive to lie during his FBI interviews and grand jury testimony. Therefore, the government agrees [with Libby's request] not to offer a declaration from the CIA or any other direct evidence of the facts that Ms. Wilson's CIA employment actually was classified or that the public disclosure of that employment actually damaged the national security, the CIA, or Ms. Wilson, or had the potential of doing so. This agreement is not intended to confer upon defendant a license to mislead the jury, however. Thus, if defendant were to open the door by attempting to challenge the classified status of Ms. Wilson's employment or the potential risks of publicly disclosing that employment, or if the defense disputed the materiality of the statements or sought nullification, the government would be entitled to, and would, seek to offer this evidence. In any event, government counsel would not consider, and need not be ordered to avoid, an improper attempt to “manufacture a wrongful conviction” by offering evidence for the purpose of “arousing the passions or prejudices” of this, or any other, jury.

The pretrial filings also expose as false Rosen's contention that the defense had sought “some official certification of Valerie Plame's identity” and that Fitzgerald had denied such a request. Libby's motion noted that with regard to evidence of Plame's classified or covert status and potential damage resulting from its disclosure, the prosecution had provided “conclusory assertions contained in two brief 'summaries' prepared by the CIA.” Fitzgerald referred to these documents in his own filing:

Defendant has been provided with a disclosure of information from the Central Intelligence Agency (“CIA”) establishing that Ms. Wilson's employment was previously classified, and outlining the potential risks of publicly disclosing her employment.

Furthermore, Rosen's claim that “Fitzgerald, from the very outset, understood” that no laws related to the disclosure of classified information had been broken is dubious. As Colorado Media Matters repeatedly has noted, Fitzgerald explained in a press release and in a press conference when a grand jury indicted Libby on October 28, 2005, that Libby's perjury and obstruction had prevented Fitzgerald's investigation from determining whether the “fine distinctions” necessary to charge a violation of federal law could be made.

Likewise, in describing the unclassified CIA document, Toensing falsely suggested it asserted that Plame was simply “qualified to be covert”:

ROSEN: All right, Victoria, here's this story, dateline Washington May 29th. “An unclassified summary of outed CIA officer Valerie Plame's employment history at the spy agency, disclosed for the first time today in a court filing by Special Counsel Patrick Fitzgerald, indicates that Plame was, quote, covert, end quote, when her name became public in July 2003. The summary is part of an attachment to Fitzgerald's memorandum to the court supporting his recommendation that 'Scooter' Libby, Vice President Cheney's former top aide, spend 2-1/2 to 3 years in prison for obstructing the CIA leak investigation.”

[...]

TOENSING: Well, first of all, the brief says “qualified to be covert,” which is a really sleazy word, word ploy there to get the kind of press that you just read. Because “qualified to be covert” is really a different situation than is covert, declared covert.

In fact, the term “qualified” appears nowhere in the unclassified CIA summary. The document reads:

At the time of the initial unauthorized disclosure in the media of Ms. Wilson's employment relationship with the CIA on 14 July 2003, Ms. Wilson was a covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States.

[...]

[T]he CIA declassified and now publicly acknowledges the previously classified fact that Ms. Wilson was a CIA employee from 1 January 2002 forward and the previously classified fact that she was a covert CIA employee during this period.