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A New Chapter In The Valerie Plame Case:
Insights Gained From The New Edition of The Book by Former Ambassador Joseph Wilson


Friday, May. 20, 2005

The grand jury investigation into the illegal leak of Valerie Plame's covert CIA identity still has not led to the public revelation of any suspect who might be responsible for the leak. Yet according to columnist Robert Novak, who published the leaked information, the suspects are two "senior" Bush Administration sources - who may be high-profile.

A number of reporters have already voluntarily testified before the grand jury. But New York Times reporter Judith Miller and Time magazine reporter Mathew Cooper are not among them. In a recent column, I explained why the U.S. Court of Appeals for the District of Columbia did not protect Miller and Cooper's ability to hide their sources - and why I believe the U.S. Supreme Court is very unlikely to step in. Someday soon, then, the grand jury is very likely to hear from Miller and Cooper - or else Miller and Cooper will opt for jail.

But beneath these legal issues, lies a mystery: Why has the investigation's focus fallen on them, in particular? Miller never wrote about the leak of Plame's identity; Cooper wrote about it well after Novak had included the leaked information in his column.

So these two would seem peripheral - but plainly, they are central. Why?

U.S. District Court Judge Thomas Hogan's opinion in the case gives one clue. In discussing the sealed affidavit filed by Special Counsel Patrick Fitzgerald, Judge Hogan noted that "the government's focus has shifted as it has acquired additional information during the course of the investigation" and "now needs to pursue different avenues in order to complete its investigation." Though vague, these references are also significant.

The newly released paperback edition of the book by Plame's husband - former Ambassador Joseph Wilson - entitled The Politics of Truth: Inside the Lies that Put the White House on Trial and Betrayed My Wife's CIA Identity, helps explain what Judge Hogan may have been getting at, and what that sealed affidavit may say.

The World Of Fog Facts: Interpreting the Public Information on the Plame Leak

The Plame investigation well-illustrates the role "fog facts" can play. Though a number of facts are known about the Plame investigation, so far they remain foggy: They have not revealed a suspect, nor have they explained the mystery described above, of why the investigation is focusing on the seemingly-peripheral Miller and Cooper. Yet there is considerable information available.

(As The Librarian -- the terrific recent political thriller by Wag The Dog author Larry Beinhart - explains, "fog facts" are information that is known but not known: "In the information age there is so much information that sorting and focus and giving the appropriate weight to anything has become incredibly difficult," Beinhart's narrator explains.)

Reading Joe Wilson's book, in combination with the Senate Intelligence Committee's report on pre-Iraq-war failures of the American intelligence community helps clear away some of the fog. In part, that's because Wilson's publisher, Carroll & Graf, retained Russ Hoyle -- an investigative reporter who has been a senior editor at the New York Daily News, Time magazine, and the New Republic - to do what it might be inappropriate for Wilson himself to do: look into the government's investigation of the leak of his wife's identity.

Hoyle's report - included in the paperback edition of the book - notes that "There is little question that the investigation of the White House leaks is now hostage to Fitzgerald's campaign to force Cooper and Miller to testify." But, again, why?

Other information provided in Hoyle's report provides insight. Hoyle writes that Washington Post reporter Walter "Pincus, for example, reportedly confirmed the time, date, and length of his conversation with a sourceā€¦, but Pincus would not reveal his or her identity."

Hoyle continues, "That lent credence to reports that Fitzgerald had subpoenaed records of every contact that White House personnel had had with reporters during the period in question and was engaged in a meticulous search to match such times and dates with records of meetings and telephone calls between reporters and Bush officials gleaned from calendars and telephone logs."

So let's suppose this kind of matching is indeed going on. Plainly, Special Counsel Fitzgerald must have matched Cooper and Miller's numbers to calls to or from the phone lines of White House personnel - just as he did with Pincus. But just as plainly, Fitzgerald cares very much about the content of the conversations with Cooper and Miller - which may or may not have been the case with Pincus. He may also care about the identity of the source to whom they spoke - which was not the case with Pincus.

More evidence for this theory comes from the fact that Cooper reportedly provided Pincus-style cooperation (times, dates, but no names) - yet Fitzgerald is still going after Cooper, to force him to testify.

Accounting For Special Counsel Fitzgerald's Investigative Shift

For months, it has been rumored that Fitzgerald has found only a low-level leaker in the White House - one who seems not to have violated the 1982 Intelligence Identities Protection Act, which makes it a crime to disclose an undercover CIA operative. But it is only criminal if the leaker knew the name was classified, and that the CIA sought to keep it classified. (A low-level person might not have had this knowledge.)

If so, that's odd. Remember, Novak credited two "senior" Administration sources. But let's suppose it's true. In that event, it is quite likely - and many lawyers following the case believe - that the investigation has shifted to possible charges of perjury and/or obstruction of justice, more than likely by big fish.

That would explain Judge Hogan's comment that the focus of the investigation, according to the government affidavit, has shifted. It would explain why a seasoned prosecutor has gone after Miller and Cooper, and why a number of federal judges have seen no problem in his doing so.

Finally, it would also explain why Cooper and Miller might now be central players: Their testimony may be needed to make a case of perjury or obstruction of justice.

From the point of view of a perjury/obstruction case, it matters little that Cooper began to report only after the initial link in the Novak column. Nor does it matter that Miller never did report on the leak. Even reporters who don't write what they learn, or who don't report at the very start of the controversy, may learn information crucial to making a perjury or obstruction case.

When Do The Media Become Complicit In Criminal Leaking, Perjury, or Obstruction of Justice?

There is no privilege in the law that protects criminal activity. Not for lawyers, not for priests, not for doctors -- and not for journalists. And I believe it unlikely that the Supreme Court would create one with this case.

So Cooper and Miller will very probably have to decide whether to defy the law - and go to jail - or testify before the grand jury. They should testify: What a shame it would be if they were to go to jail to protect law-breakers in the White House.

Indeed, if they do not testify, they are arguably complicit in the crimes that the Special Counsel believes have occurred. There must be a line: At some point, in protecting sources committing crimes, newspersons themselves become complicit in those crimes. Protecting a source whom a reporter learns has lied (or obstructed justice) strikes me as being across that line. If Miller and Cooper have not crossed the line, they certainly have their toes on it.

Could the Supreme Court Become Complicit In Bush Administration Misdeeds?

Though few believe the Supreme Court will rule for the reporters, as Hoyle note, the High Court might place the case "on its docket, which conceivably could push the resolution into 2006." It would take only four Justices' votes to do so.

If the Court declines to grant review, Special Counsel Fitzgerald can go ahead and force Cooper and Miller to testify, or face jail. But if it takes the case - and further delays it - the Special Counsel can do nothing.

For this reason, a Court decision to docket the case should raise deep suspicions. This, after all, is the Court that installed Bush and Cheney in the White House with its dubious Bush v. Gore ruling. Delaying this case until the backside of Bush's second term could give the White House a pass through the mid-term elections as well.

Such delay, then, would suggest complicity by the conservative bloc (those most likely to take the case) of the Court in Administration crimes. Imagine, by comparison, if conservatives on the Court had managed to delay the Court's ruling forcing Richard Nixon to turn over his tapes to the Watergate Special Prosecutor until after the 1974 mid-term elections. That would not only have helped Republicans in the mid-term elections, it would also have enabled Nixon to survive an impeachment conviction -- for there was no smoking gun until the Court acted.

The Plame leak is a very serious one. It is an especially nasty case of revenge for truth-telling: To go after Wilson's wife, for his Op Ed, is dirty business indeed. Even more important, for Valerie Plame (and possibly others who covertly associated with her abroad, and were outed when she was outed) this leak could be life-threatening.

It is way past time to get to the bottom of the Plame leak. It deserves both the pitiless light of publicity, and the laser focus of prosecution. One can only hope that the paperback edition of Joe Wilson's book, with its new material, will create more public pressure to uncover the truth.

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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