Is Fitzgerald admitting that outing Plame was no crime?

Thursday, April 06, 2006
The New York Sun revealed this morning that Special Prosecutor Patrick Fitzgerald's latest filing in the Lewis Libby case includes the statement:

"Defendant [Libby] testified that he was specially authorized in advance of the meeting [with NY Times reporter Judith Miller] to disclose the key judgments of the classified NIE [National Intelligence Estimate] to Miller on that occasion because it was thought that the NIE was 'pretty definitive' against what Ambassador Wilson had said and that the vice president thought it was 'very important' for the key judgments of the NIE to come out."

Fitzgerald's filing also states:

"Defendant testified that the vice president later advised him that the president had authorized the defendant to disclose the relevant portions of the NIE."

Under Executive Order 13292 issued by President Bush on March 25, 2003, the president and the vice president have the power to declassify intelligence information where the public interest in declassification outweighs the need for classification. A prior Executive Order issued by President Clinton, EO 12958, contains the same public interest standard for presidential declassification, but did not provide for vice presidential declassification powers.

Since Fitzgerald interviewed both the president and the vice president, it seems to me that by this filing Fitzgerald is admitting that it was not a crime to disclose the identity of Valerie Plame. Am I missing something?

UPDATE: Just One Minute has the Fitzgerald .pdf filing here.


John Lynch said...

The disclosure of information from the NIE, since the president apparently authorized it and therefor it is declassified, does not specifically address the authority to discuss Ms. Plame. Ms. Plame was not a subject of the NIE. That conversation and disclosure of the NIE might have led to disclosure on Ms. Plame is possible, but not specifically authorized by the president (at least in what we know to date.)

The more interesting point in the recent filings and judgements is the judge's assertion that Fitz must show damage relating from the disclosure. I take that to mean that Fitz must show that Ms. Plame was in fact an undercover operative at the time of disclosure and that damage was done to national security as a result of the disclosure. (the whole underlying crime thing)

Rick Ballard said...

"the judge's assertion that Fitz must show damage relating from the disclosure."

John - where do you find that? I've been through Judge Walton's order a couple of times but I didn't pick that up in my reading.

John Lynch said...


From your earlier posting:
ORDERED that any Section 4 filings submitted by the government must include a declaration, executed by an intelligence community official with the requisite classification review authority, which (1) describes the reasons for the classification of the information at issue, (2) sets forth the potential harm to national security that could result from its unauthorized disclosure, and (3) explains why the defense, based upon appropriate classification guidelines, does not have a "need-to-know the information."

Doesn't that mean that Libby's lawyers now have but to assert that Ms. Plame was not undercover and that the only way Fitz could claim she was would be to touch each of the above bases?

I could be reading more into this that I should, but it seems to open the door for the defense to force prosecution and/or government to prove harm.

BTW, the text of the judgment is full of typos - is this the actual source document?

Rick Ballard said...


It's full of typos because it's a scan of a printout - the PDF was an image rather than text file conversion. I corrected a number of errors but I wear out quick when proofreading.

As to your main point - I believe that the thrust of the judge's order is that he is unwilling to rely upon Fitz's ex parte assertions. Another way of reading it is that he's not going to rely upon anything much that Fitz says - but that may be a bit harsh.

Fitz has a legal point concerning materiality and I don't believe that he will be compelled to profer proof of Plame's status.

Fitz wants absolutely nothing to do with any assertion that Libby may have disclosed classified information of any kind. He repeatedly insists that materiality has no bearing upon this persecution.

So I don't think that Fitz is necessarily admitting anything to do with Plame or her status (Brylun's point) - he is saying that he prefers to work in a more rarefied atmosphere. My opionion is that he is likely to pass out from lack of oxygen pretty quickly - as soon as the Motion to Dismiss is dealt with.


Fitz's protection of UGO was the real admission that disclosure of Plame's status was not a crime.

John Lynch said...
This comment has been removed by a blog administrator.
John Lynch said...


I realize the inclusion of that order is directly related to the ex partefilings.

Again, I could be reading more into this that is there, but I would take that as the standard that must be met in making assertions about disclosure of confidential information and their inclusion or exclusion from the hearings or relevancy to the case.

To me, that seems a wide open door for Libby's lawyers. Regardless of Fitz's assertions of materiality, the defense can and should argue relevance of "commonly known" when discussing the magnitude of the crime of Libby lying to Fitz.

Is this a "significant lie" or an "inaccurate recollection?" These are magnitude questions.

brylun said...

Although the document does not specifically address the disclosure of Plame's identity, it is not unreasonable to assume that the NIA included information about who recommended Wilson.

That's why I asked the question.

Rick Ballard said...


The INR included info on Plame having something to do with suggesting Ambassador Munchausen's African Odyssey but the NIE (at least in that part disclosed) did not. I believe that the NIE in question was that of Fall '02 - the Niamey sweet mint tea had yet to exit the Ambassador's system and enter into the national consciousness.


I dunno the answer - you may have a valid point but what I got from the judge's order was a declaration of impartiality. Something that was sorely missing from Judge Tatel's opinion in the Miller matter. Tatel did write that his decision was based upon accepting the veracity of Fitz's affidavit and pleadings (there was no one else to listen to), so he at least placed a bit of responsibility on Fitz - Judge Walton is putting a lot more emphasis on 'I hear what you say, but I'm from Missouri, so show me.' I'd say that Judge Walton has read Judge Tatel's order and has adopted a hermeneutic of deep suspicion wrt Fitz.

Seneca the Younger said...

Brylun, do you really think the NIE would have something on the source and provenance? God knows I was never in that rarified atmosphere, but I would think that an NIE would be highly classified by aggregation only; why would even the POTUS have need-to-know in general on the source?

Syl said...


No. NO. Double NO!!

The NIE has nothing about Plame. Nada. Zilch.

Apples and Oranges.

Don't even go there.

Going there is what MSNBC and CNN are doing.