In a January 12 Washington Post op-ed, titled “The Plame Game: Was This a Crime?” Republican attorney Victoria Toensing and co-author Bruce W. Sanford defended nationally syndicated columnist Robert D. Novak and the anonymous government sources he used in a July 2003 column in which he exposed the identity of undercover CIA operative Valerie Plame. Multiple news outlets have noted that Toensing is apparently a personal friend of Novak -- a fact that neither she nor the Post saw fit to disclose.

Press sightings of social interactions between Toensing, her husband, Joseph E. diGenova, and Novak abound:

• An October 1, 2004, article on Salon.com reported that Novak was a guest along with Toensing and diGenova at a September 21, 2004, party in Washington to celebrate the success of the book Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry (Regnery, 2004).
• According to an October 17, 2001, “Reliable Source” column in The Washington Post, Novak was among “70 friends” hosted by diGenova to celebrate Toensing's 60th birthday at the Palm restaurant.
• A February 27, 1998, profile of Toensing and diGenova in The Washington Post reported that "[t]he couple retreat on weekends to their Fenwick Island, Del., beach house, hanging with such pals as Robert Novak and Bill Regardie."

Novak has also defended or praised his friends Toensing and diGenova on at least three occasions in his nationally syndicated column:

• “DiGenova, a conservative Republican, would introduce something new at the IRB [Teamsters union Internal Review Board]. He might recommend that it is time to end the monitoring that has cost the union more than $75 million. [Federal prosecutor Mary Jo] White did her best to obstruct the 1998 congressional investigation of the Teamsters conducted by diGenova and his law partner-wife, Victoria Toensing. Nor is diGenova an admirer of Mary Jo White's glacial pursuit of the pre-Hoffa conspiracy between the Teamsters, the AFL-CIO and the Democratic National Committee as the statute of limitations is about to block further prosecution.” [8/1/2001]
• “This is a cautionary tale of Washington today. Anybody who dares investigate the Clinton establishment can expect the worst. [Former independent counsel] Ken Starr has been transmogrified from a bookish appellate lawyer to Grand Inquisitor Torquemada. His deputies have seen their legal careers belittled and their religious beliefs derided. Congressional investigators Victoria Toensing and Joe diGenova have had their ethics challenged.” [5/14/1998]
• “On April 30, House Minority Whip Rep. David Bonior, D-Mich., accused Joe diGenova and Victoria Toensing, the Republican husband-and-wife lawyers running the House Workforce Committee investigation of the Teamsters, of 'an outrageous conflict of interest' because they had become part-time commentators for NBC (a deal they canceled Wednesday).” [5/8/1998]

Toensing and Sanford argued that Patrick J. Fitzgerald, the U.S. attorney investigating the Plame leak, lacks legal justification to compel reporters to identify the government sources that purportedly leaked Plame's name because neither the original government sources nor Novak committed a crime by disclosing Plame's identity:

When the [1982 Intelligence Identities Protection] act was passed, Congress had no intention of prosecuting a reporter who wanted to expose wrongdoing and, in the process, once or twice published the name of a covert agent. Novak is safe from indictment.

But they failed to explain what “wrongdoing” Novak was seeking to expose in outing a CIA operative whom no one has accused of wrongdoing. Novak reported Plame's name as part of an effort to discredit her husband, Joseph C. Wilson, whom the CIA sent to Niger to investigate whether Iraq had in fact sought to purchase uranium from Niger, as Bush had claimed in his January 2003 State of the Union address as a justification for invading the country. Wilson wrote in a July 6, 2003, New York Times op-ed that he found no evidence that Iraq had made such an attempt. Does Novak's claim that Plame “suggested sending [her husband] to Niger to investigate the Italian report” constitute the kind of “wrongdoing” (if that word even applies) whose exposure Congress may have wanted to ensure, even at the cost of exposing a covert operative, as well as risking the exposure of everyone with whom she came into contact?

In discussing the law's applicability, Toensing and Sanford also argued: “If it were known on the Washington cocktail circuit, as has been alleged, that Wilson's wife is with the agency, a possessor of that gossip would have no reason to believe that information is classified -- or that 'affirmative measures' were being taken to protect her cover.” But presumably only their government sources' knowledge of Plame's covert status is relevant to whether they violated the Intelligence Identities Protection Act. Are they really suggesting that government sources who happened to hear gossip that someone might work for the CIA are free to divulge that the person is in fact a CIA operative?

The argument that the leakers may not have known of Plame's covert status was also challenged by reporter and blogger Joshua Micah Marshall of TalkingPointsMemo.com, who reported that Novak consistently referred to undercover CIA agents as “operatives,” while reserving other titles for CIA employees whose names are publicly available. Marshall's findings were noted in a January 4, 2004, editorial in the Minneapolis Star Tribune:

Surely a prosecutor of his experience won't fall for the line the administration -- and most recently right-wing attorney Victoria Toensing -- has been floating, namely that perhaps Bush administration officials leaked Plame's name to the media but didn't commit a crime because they didn't know she was an undercover agent. “It could be embarrassing but not illegal,” Toensing said in a Friday Washington Post story.

While theoretically possible, this is highly implausible. As journalist Joshua Micah Marshall wrote Friday in his online Talking Points Memo, the July 14 column by Robert Novak that outed Plame said she was an agency operative. “In the intelligence community, the word 'operative' is a term of art. And it means someone who is undercover. It doesn't refer to an analyst,” he wrote, adding that “a review of all of Novak's columns in the Nexis database shows that he always uses the term in this way.” Besides, it would be easy for senior administration officials to determine her status before making a call. Why wouldn't they?

Marshall further commented in an October 9, 2003, entry on TalkingPointsMemo.com:

Let's cut the mumbo-jumbo: past evidence suggests that Novak only uses this phrase [“CIA operative”] to refer to clandestine agents. In this case, when he has every reason to run away from that meaning of the phrase, he suddenly runs away from that meaning. Especially with all the other evidence at hand, that just defies credibility. Everything points to the conclusion that Novak did know. That would mean, necessarily, that his sources knew too.

Beyond questioning the legal premises of the investigation into the Novak affair, Toensing and Sanford also recycled dubious claims about Wilson and his qualifications for the Niger mission. They repeated Novak's suggestion that nepotism led to Wilson's assignment to investigate whether Iraq attempted to acquire uranium from Niger and asserted that Wilson lacked the credentials for such a mission: They wrote: “Novak published her [Plame's] name while suggesting that nepotism might have lurked behind the CIA assignment of her husband, Joseph Wilson, to a job for which he was credentially challenged.”

But several sources, including the CIA itself, have disputed the allegation that Wilson received the assignment to Niger based upon “nepotism.” A July 22, 2003, Newsday article quoted an unidentified senior intelligence official as saying: “They [the officers asking Wilson to check the uranium story] were aware of who she [Plame] was married to, which is not surprising. ... There are people elsewhere in government who are trying to make her look like she was the one who was cooking this up, for some reason.” According to a July 21, 2004, USA Today article:

The [Senate Intelligence] committee also questioned Wilson's repeated denials that his wife had “anything to do” with his selection by the CIA to go to Niger. It quoted from a memo by Plame that lays out Wilson's qualifications for the assignment. Wilson and the CIA confirm that the agency, not Plame, selected him for the mission. He says the memo merely laid out his qualifications after he was picked.

Despite Toensing and Sanford's claim that Wilson was “credentially challenged” for Niger mission, Wilson had both diplomatic credentials as well as past experience investigating sales of Nigerian uranium. USA Today reported that “Wilson had been an ambassador to Gabon and was posted to Niger earlier in his career [with the U.S. Diplomatic Service, from 1976-1978]. In 1999, he had gone to Niger to gather information about rumors of uranium sales to Iraq.” Indeed, Wilson has specialized in Africa for the majority of his diplomatic career, which includes service in Niger, Togo, Burundi, and South Africa, as well as ambassadorships to the Gabonese Republic and to the Democratic Republic of Sao Tome and Principe. Wilson was also senior director for African affairs at the National Security Council under former President Clinton and also served as deputy chief of mission at the U.S. Embassy in Baghdad from 1988 to 1991.

Toensing and Sanford also asserted that Wilson was sent in 2002 “to Niger to determine whether Iraq was interested in acquiring uranium from that country although he was an expert neither on nuclear weapons nor on Niger.” In addition to ignoring Wilson's previous diplomatic experience in Niger and experience investigating the sale of Niger uranium, their assertion also misstated his mission: He did not go to Niger to determine “whether Iraq was interested,” but rather whether Iraq actually purchased or attempted to purchase uranium. According to a July 7, 2003, New York Times article, Wilson “was sent to Niger, in West Africa, last year to investigate reports of the attempted purchase [of Nigerian uranium by Iraq].”

The Washington Post identified Toensing as “chief counsel to the Senate intelligence committee from 1981 to 1984 and served as a deputy assistant attorney general in the Reagan administration.” Sanford was identified as “a Washington lawyer specializing in First Amendment issues.”