The special prosecutor investigating whether any Bush administration official may have violated federal law by leaking the identity of CIA officer Valerie Plame to columnist Robert Novak recently informed a federal court that his investigation has been “for all practical purposes complete” since October 2004.
The disclosure by special counsel Patrick J. Fitzgerald that he completed virtually all aspects of his federal grand jury investigation as long as six months ago was made in court papers the prosecutor filed on March 22. Despite the fact that the filing has been on the public record since then, it has previously been unreported.
Fitzgerald made the disclosure in explaining why he considered the testimony of reporters for The New York Times and Time magazine so essential to his inquiry. Reporters Judith Miller of the Times and Matthew Cooper of Time have already been found to be in contempt of court for refusing to testify before the special prosecutor's grand jury. Attorneys for both news organizations have appealed the contempt citations.
Fitzgerald implied in the court papers that if he were able to obtain the testimony of both reporters, he would most likely be able to close out his investigation once and for all. Most outside legal observers, and government officials with knowledge of the probe, as well as private attorneys representing individuals who are appearing before Fitzgerald's grand jury interviewed for this article, say the fact that the prosecutor has considered his investigation virtually complete for several months indicates that he most likely will not bring any criminal charges.
But Fitzgerald himself did not hint in the court papers as to how he might further proceed. And because Fitzgerald has so emphatically emphasized that the testimony of the two reporters is so crucial to his investigation, he may believe that they have corroborating evidence of wrongdoing by one or more persons under investigation that would allow him to finally charge someone.
Fitzgerald, who is also the United States attorney in Chicago, asserted in the federal court filing: “By October 2004, the factual investigation that might result from such testimony was for all practical purposes complete. The investigation has since been stalled by contemnors' refusal to comply with an order to testify. The public's right to have this investigation concluded diligently should be delayed no further.”
The new disclosure that Fitzgerald had, for the most part, completed his criminal investigation months ago, ironically, raises more questions than it answers. First and foremost is whether criminal charges will be brought in the case and whether a crime was committed at all. The new information also raises questions about why the prosecutor thinks the testimony of Miller and Cooper might prove to be so essential to the criminal investigation. And finally, also unknown, is whether or not, and in what manner, Novak has cooperated with Fitzgerald's investigation.
The fact that the special prosecutor has completed his investigation, albeit absent the testimony of the two reporters he still wants to call before his grand jury, on its face makes it more likely than not that Fitzgerald will not bring criminal charges in the case. But at least one former federal prosecutor (who worked closely with Fitzgerald in government and is now in private practice) says there should be no rush to judgment.
Referring to the contentious battle to obtain the testimony of the two reporters, this person said: “[Fitzgerald] would not have done this, and put everyone through it, without good reason. And he would have not just done this just to close out to case. He is meticulous and careful to a fault, and wants his work to be complete. But I doubt he would be going through all of this to just wrap up some loose ends.”
Neither Fitzgerald nor two of his deputy special counsels -- Peter R. Zeidenberg and James Fleissner -- responded to telephone messages seeking comment for this article. Fitzgerald has been particularly adept at keeping his cards close to vest, with few if any substantial leaks emanating from his office regarding the course of his criminal investigation.
In the meantime, the stakes for all the parties keeps rising -- most notably, for the reporters. A three-judge panel of the circuit court for the District of Columbia upheld on March 21 the contempt citations of both Miller and Cooper.
That same day, attorneys representing The New York Times and Time -- as well as 34 other major news organizations and professional journalism associations -- asked that the U.S. Court of Appeals rule that the lower court that heard the case against the reporters should determine whether there was a likelihood that a crime was committed in the first place (when Plame's identity was leaked to Novak) before further compelling the reporters to testify and allowing their contempt citations to stand.
Novak's July 14, 2003, column identifying Plame as a CIA “operative” came during a period of time when senior White House officials were attempting to discredit Plame's husband, former Ambassador Joseph Wilson IV, who was then asserting that the Bush administration had relied on faulty intelligence to bolster its case to go to war with Iraq. Wilson had only recently led a CIA-sponsored mission to Niger to investigate claims that Saddam Hussein was covertly attempting to buy enriched uranium from the African nation to build a nuclear weapon. Wilson reported back that the allegations were most likely the result of a hoax. But President George W. Bush had still cited the Niger allegations during a State of the Union address as evidence that Hussein had an aggressive program to develop weapons of mass destruction.
When Wilson sought out White House officials, believing they did not know all the facts, he was rebuffed. He then went public with his criticism of the Bush administration. It was then that senior administration officials began a campaign to discredit Wilson to counter his criticisms of them.
In his now-famous column, Novak charged that Wilson's allegations were not to be trusted because he was a partisan and also because he had been sent on the mission in the first place only after having been recommended by his wife, Plame. Novak referred to Plame in the column as "an Agency operative on weapons of mass destruction.” Later, Novak said that his use of the term was a mistake. He now claimed that his sources only meant to say she worked in some way for the agency.
But Novak's various accounts of what administration officials told him have been inconsistent, and more than two months passed before he acknowledged that he had mistakenly used the word “operative” to describe Plame -- that is, after the matter become one of public controversy when the CIA requested that Justice Department investigate the leak. And investigators working for Fitzgerald have been said to be skeptical of Novak's claims that he identified Plame as a CIA “operative” by mistake. By saying that he made a mistake in calling Plame an “operative,” Novak not only was portraying himself in a more favorable light, but he also made it exceedingly more difficult to criminally charge the leakers.
That's because the law prohibiting the disclosure of the identities of CIA operatives covers only disclosures made with the purposeful intent of knowingly exposing an agent and wanting to harm U.S. intelligence efforts. In arguing that Fitzgerald should establish that a crime was committed before the trial judge, attorneys Victoria Toensing and Bruce W. Sanford, in their legal brief, cited, among other things, Novak's claims that the official who leaked him the information about Plame did not intend to expose her status as a covert CIA operative:
“The statute was specifically `crafted with care' to be used in limited circumstances, because Congress wanted to `exclude the possibility that casual discussion, political debate, the journalistic pursuit of a story on intelligence, or the disclosure of illegality or impropriety in government will be chilled by the enactment of the bill. Congress intended only disclosures that `clearly represent a conscious and pernicious effect to identify and expose agents with the extent to impair or impede the foreign intelligence activities of the United States.'”
In the meantime, it is still unclear whether Novak has cooperated with Fitzgerald's investigation, or even whether he testified to the grand jury. Novak has steadfastly refused to answer any questions about what he might or might not have done. He did not return phone calls for comment for this article.
But it seems inconceivable that Fitzgerald would have concluded most of his probe months ago, four current and former federal prosecutors said in interviews, without attempting to obtain Novak's cooperation or testimony. Says one: “He is the one you would want to hear from.”
Floyd Abrams, the well-known First Amendment attorney who is representing The New York Times and Time in the Plame matter, told me: “In his motion, [Fitzgerald] represented that he is finished, except for the testimony of my clients. I don't think he could say to the court that he is at that point unless he has already heard from Novak.”
Novak's silence has led to some rare public rebukes by his fellow journalists. Geneva Overholser, a professor at the University of Missouri School of Journalism, former chair of the Pulitzer board, and a former editor of the Des Moines Register says: “Bob Novak has acted so dishonorably throughout all of this.” She also said that his fellow journalists have been remiss in not demanding answers from him: “They should be calling on him to say what happened. He should say if he has been subpoenaed, if he has testified, or whether or not he has taken the Fifth. If he wants to say he is a journalist, he should tell the truth.”
Murray S. Waas, an investigative reporter based in Washington, D.C., will be writing more about the Plame investigation all week long on his blog, Whatever Already.
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