By Carol D. Leonnig
Washington Post Staff Writer
Saturday, February 4, 2006
The special prosecutor in the CIA leak case alleged that Vice President Cheney's former chief of staff was engaged in a broader web of deception than was previously known and repeatedly lied to conceal that he had been a key source for reporters about undercover operative Valerie Plame, according to court records released yesterday.
The records also show that by August 2004, early in his investigation of the disclosure of Plame's identity, Special Counsel Patrick J. Fitzgerald had concluded that he did not have much of a case against I. Lewis "Scooter" Libby for illegally leaking classified information. Instead, Fitzgerald was focused on charging Cheney's top aide with perjury and making false statements, and knew he needed to question reporters to prove it.
The court records show that Libby denied to a grand jury that he ever mentioned Plame or her CIA job to then-White House press secretary Ari Fleischer or then-New York Times reporter Judith Miller in separate conversations he had with each of them in early July 2003. The records also suggest that Libby did not disclose to investigators that he first spoke to Miller about Plame in June 2003, and that prosecutors learned of the nature of the conversation only when Miller finally testified late in the fall of 2005.
All three specific allegations are contained in previously redacted sections of a U.S. Court of Appeals opinion that were released yesterday. The opinion analyzed Fitzgerald's secret evidence to determine whether his case warranted ordering reporters to testify about their confidential conversations with sources.
Fitzgerald revealed none of these specifics when he publicly announced Libby's indictment in October on charges of making false statements, perjury and obstruction of justice.
The once-sealed portions of the federal court opinion were written in February 2005 by U.S. Circuit Judge David S. Tatel, who was a member of a three-judge panel that agreed with Fitzgerald that the testimony of two reporters, Miller and Time magazine's Matthew Cooper, was crucial to his investigation.
Yesterday, the same panel concluded that because Libby was indicted and now faced public charges, the court no longer had to keep secret many of the details of the grand jury investigation that Tatel analyzed. Dow Jones Inc., parent company of the Wall Street Journal, had petitioned the court to release the eight-page Tatel opinion. Three of the pages were redacted.
Attorneys for Libby and Fleischer and a spokesman for Fitzgerald declined to comment yesterday.
Since January 2004, Fitzgerald has been investigating whether senior Bush administration officials knowingly leaked Plame's identity to discredit allegations made by her husband, former ambassador Joseph C. Wilson IV. Plame's name and her CIA role were first mentioned publicly in a column by syndicated columnist Robert D. Novak on July 14, 2003, eight days after Wilson publicly accused the administration of twisting intelligence to justify a war with Iraq.
According to Tatel's summary of the evidence that Fitzgerald presented in the court's chambers in August 2004, the prosecutor had at least a good circumstantial case on perjury but charging Libby with intentionally leaking classified information was "currently off the table," though it could be "viable" if he gained new evidence.
Tatel wrote that interviewing Miller would be crucial to making that decision, because Libby might have mentioned to her that he knew Plame's status was covert. He concluded that simply lying about a national security matter was serious enough to warrant ordering the reporters to testify about their conversations with Libby.
"While it is true that on the current record the special counsel's strongest charges are for perjury and false statements rather than security-related crimes ... perjury in this context is itself a crime with national security implications," he wrote.
The information gives a fuller picture of the case that Fitzgerald will likely put on against Libby. Yesterday, a federal judge scheduled his trial to start on Jan. 8, 2007.
In public remarks about the indictment, Fitzgerald has accused Libby of lying when he said that he believed he first learned of Plame from NBC reporter Tim Russert and passed along that information strictly as unverified gossip to Miller and Cooper.
Tatel's opinion also includes previously unknown details about testimony by Libby and other officials. For example, Libby acknowledged to investigators that Cheney told him in mid-June 2003 about Plame's CIA role and said she helped send her husband on a mission to Niger to determine whether Iraq was seeking nuclear material from the African nation.
That was soon after a Washington Post article on Wilson's Niger trip appeared. Libby emphasized in his testimony that Cheney only said it "in an off sort of curiosity sort of fashion."
Fitzgerald also contended that Libby lied to the grand jury when he said he never mentioned Plame or her CIA job to Fleischer when they had lunch on July 7. Fleischer recalled before the grand jury that Libby did mention Plame and said she worked in the "counterproliferation area of the CIA." Fleischer said Libby stressed that "the vice president did not send Ambassador Wilson to Niger . . . the CIA sent Ambassador Wilson to Niger . . . he was sent by his wife."
Fleischer added that he thought the lunch was "kind of weird" because the normally "closed-lip" Libby was sharing confidences and remarking that the information was "hush-hush" and "on the q.t."
Libby was also asked about two July conversations he had with Miller. He said he never mentioned Wilson's wife to Miller in the first conversation but passed along some information another reporter told him about Plame in the second, according to the documents.
Miller testified last year, however, that she thought Libby was the first government official to mention Wilson's wife to her and that he did so in three conversations: on June 23, when she visited his office in the Executive Office Building, and on July 8 and 12.