Plame Game Redux

Two days before columnist Robert Novak named Valerie Plame as a covert CIA operative, a Bush administration official told a reporter for The Washington Post that Plame's husband, former Ambassador Joseph Wilson IV, had been sent to Niger on a sensitive diplomatic mission only because his wife recommended him for the job. The administration official admitted his role to federal prosecutors during their investigation into the leak of Plame's identity.

The Bush administration official, according to attorneys familiar with his testimony, told a federal grand jury that he made the claim to the Post reporter and others in an effort to undermine Wilson's credibility, who was alleging at the time that the Bush administration was relying on faulty intelligence to bolster its case to go to war with Iraq. But the official just as adamantly denied to the federal investigators that he had ever told the Post reporter, Novak, or anyone else that Plame was a clandestine CIA operative.

The Post reporter, Walter Pincus, confirmed in an interview that the administration official attempted to discredit Wilson by claiming that Wilson had been sent to Niger on a boondoggle arranged by Wilson's wife. But Pincus says that the official did not tell him that Plame was anything other than an analyst.

Such leads have proved tantalizing to FBI agents and prosecutors working for special counsel Patrick Fitzgerald, who for more than a year has investigated whether Bush administration officials might have broken the law in disclosing that Wilson's wife was a clandestine CIA officer.

But the above example also underscores just why it has been so difficult to prosecute anyone in the Plame matter and why it now appears more likely than not that nobody will be. As I first reported on April 6, Fitzgerald recently informed a federal court that his investigation had been "for all practical purposes complete" since October of last year. Absent the full testimony of reporters Judith Miller of The New York Times and Time magazine's Matthew Cooper, Fitzgerald seems to have indicated, the trail has gone cold.

Despite the fact that prosecutors might not bring criminal charges, the grand jury inquiry uncovered evidence that several administration officials engaged in an aggressive and organized effort to discredit Wilson by claiming that his mission to Niger was a result of nepotism, according to sources close to the case. Although several administration officials admitted to disseminating negative information about Wilson and Plame, they also asserted that they did not know that Plame was a clandestine CIA operative. Federal investigators have been skeptical of those accounts, according to sources close to the case, but unable to prove them false.

U.S. Representative Rush Holt (D-NJ), a member of the House Intelligence Committee, said in an interview that regardless of whether Bush administration officials knew that Plame was a clandestine operative, "There was a deliberate effort to discredit the ambassador by either slandering his wife or exposing her profession, which was despicable and should be brought to light." Holt said that now that the Fitzgerald inquiry appears to be complete, the public should know exactly what Bush administration officials did to discredit Wilson and expose Plame's employment with the CIA.

Last year, Holt sponsored a resolution calling for the House to independently investigate the efforts by the Bush administration officials to discredit Wilson, which led to exposure of his wife's covert CIA status. But votes on his resolution in four House committees -- Judiciary, Intelligence, Government Reform, and House International Relations -- narrowly failed, with members voting largely along partisan lines. Republicans said they voted against his resolution because they did not want to interfere with the federal criminal inquiry.

It is unclear whether any of the House committees will now undertake such an investigation. But nine Democrats on the House Permanent Select Committee on Intelligence last week wrote Attorney General Alberto Gonzalez asking him to explain to them why Fitzgerald has not brought criminal charges against anyone in the Plame matter.

Under the Intelligence Identities Protection Act, it is a felony punishable by up to 10 years in prison for anyone to disclose the identity of a covert U.S. intelligence operative. Although the law was designed to allow for the prosecutions of individuals engaging in a "pattern of activities intended to identify and expose covert agents," it does not rule out the prosecution of parties responsible for the leak of a single covert agent's identity, such as the Plame leak.

But the statute also requires an extremely high burden of proof. A prosecutor must overcome so many legal obstacles before he can bring criminal charges that prosecutions are always difficult, even under the best of circumstances. Among other things, prosecutors must prove that the person disclosing the information knew that its release would reveal a covert agent's identity. If, as with the example of the Bush administration official cited above, the official truly did not know that Plame was a covert operative but merely a CIA employee, that official would not have violated the law.

The law was written in such a prohibitive manner due to fears that an overzealous prosecutor or executive branch might use the statute to prevent legitimate news reporting of governmental abuses, intelligence failures and scandals, and legitimate dissent.

In light of this legislative history, attorneys for The New York Times, Time, and 34 other news organizations recently argued, in a brief they filed in federal court that Fitzgerald should prove that a crime was committed before he further demands that Miller and Cooper testify before his grand jury.

"The statute was specifically 'crafted with care' to be used in limited circumstances," the brief says, "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.'"

Another barrier to prosecuting anyone under the law is that absent an admission of wrongdoing by a government official, the only evidence that a leaker had the intent of violating the law would be the testimony of a journalist.

But journalists often will not testify. The New York Times' Miller has refused to testify at all. Cooper, who is facing a contempt citation, previously gave a sworn deposition to Fitzgerald's office but agreed to answer only certain questions and not others. (When he was called back and asked to answer even more questions, he refused and was found in contempt.) Other journalists -- Pincus and Glen Kessler of The Washington Post, plus NBC Washington bureau chief Tim Russert -- agreed to answer questions from the prosecutors, although they said that they did so only after their sources urged them to.

In the case of the Bush administration official described above, The Washington Post's Pincus, according to two sources, told Fitzgerald's office that although the official had provided Pincus with the derogatory information regarding Plame and Wilson, the official never said that Plame was a CIA operative. Pincus told me in an interview that he did not use the information offered up by his source because he did not believe it to be true. He also said that he cooperated with prosecutors only at the instructions of sources who wanted to clear their names.

Aside from the difficulty of obtaining the cooperation of journalists who have pledged confidentiality to their sources, there is also the possibility that a journalist might purposefully mislead prosecutors. Even if journalists do not testify in a criminal inquiry, they can mislead prosecutors in their articles or public statements.

It still can not be definitively determined if Novak, who refuses to comment on the matter at all, has cooperated with Fitzgerald and, if he has, in what manner. However, outside legal experts say that it is unlikely that Fitzgerald would say he had completed most of his investigation without having talked to Novak.

Before Fitzgerald took over the investigation of the Plame case from a task force of career Justice Department prosecutors, investigators were proceeding with the strong belief that that Novak was attempting to mislead both them and the public, according to people close to the case. Whether Fitzgerald has reached similar conclusions cannot be determined.

In his original story disclosing Plame's identity, Novak identified Plame as "an agency operative on weapons of mass destruction." But after it became known that the Justice Department had initiated a criminal investigation, Novak changed his story, claiming that his sources had told him only that Plame was an analyst. He declared on CNN on September 29, 2003: "According to a confidential source at the CIA, Mrs. Wilson's involvement was an analyst, not a spy, not a covert operative, and not in charge of undercover operatives. So what is the fuss about?"

If Novak had misquoted his source, the investigators asked, why had he only changed his story more than two months after his column first appeared and after word of the criminal investigation leaked? It is, of course, traditional practice for journalists to correct mistakes in their stories as soon as they learn of them. Novak apparently did not do that in this instance, leading investigators to regard his mea culpa as not credible.

Later, when administration officials, such as the one who spoke to Pincus, admitted to investigators that they had told reporters that Wilson had been sent to Niger only as a result of his wife's purported nepotism -- but did not know she had ever been a clandestine operative -- the investigators came to believe that Novak and his sources might be misleading them.

A former federal prosecutor who worked with Fitzgerald in the U.S. Attorney's office in Chicago says that an "earnest and thorough prosecutor" would want to "exhaust possible avenues of inquiry" before ending an investigation like the one that Fitzgerald is conducting. The former prosecutor, now in private practice, said he wanted to discuss the case because Fitzgerald has been unfairly portrayed as a zealot in the press because of his demands that reporters testify in the case. The attorney noted, however, that he knew nothing more than what was on the public record on the case.

"You have two people who had a conversation," says the attorney, "Novak and an administration official. If both of them are going to lie -- Novak and the source -- there is no way to penetrate that. None. It doesn't matter how meticulous you are a prosecutor, or that you have unlimited resources at your disposal."

In an op-ed in the San Francisco Chronicle, Randall D. Eliason, a former chief of the Public Corruption Section of the U.S. Attorney for the District of Columbia, argued similarly: "If someone leaks classified information to a reporter, there are only two likely witnesses: the parties to that conversation. Even if the identity of the leaker is known, he or she almost certainly will assert a valid Fifth Amendment privilege not to testify. That leaves the reporter as the sole available witness to a possible federal crime.

"Given these facts, the prosecutor has two options: subpoena the reporters to testify or fold up his tent and go home."

That might explain why Fitzgerald has been uncompromising in his demand that Miller and Cooper testify before his grand jury. Only they might be able to tell him whether their sources did or did not tell them that Plame was a clandestine CIA operative. And their source or sources might or might not have been the same people who spoke to Novak -- shedding light not only on whether the government has lied but also whether Novak has as well.

As Fitzgerald himself has asserted in his last 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 [Miller's and Cooper's] refusal to comply with an order to testify. The public's right to have this investigation concluded diligently should be delayed no further."

Even Floyd Abrams, the esteemed First Amendment attorney who is zealously defending The New York Times and other news organizations in the Plame matter and who is outspoken in his belief that demanding that reporters identify their sources is a threat to the Constitution, says that Fitzgerald is engaging in a legitimate inquiry. "There are even journalists -- despite the First Amendment issues -- who are invested with the notion of cracking this case, who would like nothing better than the visage of a high-ranking official who ought to be punished," Abrams notes. "I can see how Fitzgerald would want to do everything he could, touch every base, before he says he is finally done."

It would indeed be tragic and ironic, as Abrams and others have pointed out, if government officials who broke the law went free, or if no crime were committed at all, yet Miller and Cooper were to stand convicted of contempt and perhaps even serve jail sentences. The D.C. Circuit Court of Appeals refused to rehear their case en banc on April 20, letting stand a previous ruling compelling their testimony.

In the meantime, those close to Fitzgerald argue that he is hardly the overzealous prosecutor he is being made out to be in some press accounts. He does appear to have a legitimate interest in questioning Cooper and Miller, they say: determining whether or not a high-ranking administration official may have committed a crime. Certainly, it is competing with perhaps more important interests relating to the First Amendment, but Fitzgerald's defenders say it is a legitimate interest all the same.

Murray S. Waas is an investigative reporter. He will be reporting further about the Plame grand jury on his blog, Whatever Already.