Trial in Error

· On cross-examination, Fleischer testified that it was "absolutely correct" that he did not tell The Post's Walter Pincus on July 12, 2003, that Wilson's wife worked at the CIA. Pincus emphatically contradicted this, swearing that in the middle of a discussion, Fleischer "swerved off," asking, "Why do you keep writing about Joe Wilson and Joe Wilson's trip? Don't you know his wife worked for the CIA as an analyst for weapons of mass destruction and arranged for it?"

So indict Fleischer. He contradicted Pincus as materially as Libby contradicted Russert or Time's Matthew Cooper, the two witnesses who were the basis for the Libby indictment. Whoops! Can't do that. Fitzgerald gave Fleischer "pig in a poke" immunity. That's an old prosecutor's phrase meaning that Fitzgerald granted Fleischer immunity from prosecution without knowing what Fleischer would say. No problem -- indict Pincus. His testimony differed from Fleischer's and he didn't ask for immunity.

* * *

THIS GRAND JURY CHARGES RICHARD L. ARMITAGE with intentionally keeping silent about being the first person to reveal Plame's identity to reporters and with falsely telling the public that he did so at Fitzgerald's request because he did not want to be publicly embarrassed. To wit:

· Novak testified that Armitage told him on July 8, 2003, that it was Wilson's wife, "Valerie," who sent him on the Niger trip. Not until September 2006 did Armitage release Novak to reveal publicly that he had been the columnist's source.

· The Post's Bob Woodward testified that Armitage told him on June 13, 2003, rather colorfully: Wilson's "wife's a [expletive] analyst at the agency." When the FBI interviewed Armitage on Oct. 2, 2003, he apparently forgot about his taped interview with perhaps the most famous journalist of this generation. In November 2005 Armitage released Woodward from their confidentiality agreement -- but only to tell Fitzgerald, not the rest of us, how he had learned of Plame's identity.

· Armitage attributed his more than three years of silence to Fitzgerald's request that he not discuss the matter with anyone. But Fitzgerald was not appointed until Dec. 30, 2003, three months after Armitage now says he realized that he was Novak's source.

· Despite Armitage's claim as to why he kept silent, he yakked to his subordinate Marc Grossman about what he had said in his FBI interview -- conveniently, the night before Grossman's own FBI interview.

THIS GRAND JURY CHARGES THE U.S. JUSTICE DEPARTMENT with abdicating its legal and professional responsibility by passing the investigation off to a special counsel out of personal pique and reasons of ambition.

· Both then-Attorney General John D. Ashcroft and Deputy Attorney General James Comey not only had access to the law books but also the clout and clearances to demand that the CIA tell them whether Plame was covert.

· In the fall of 2003, Ashcroft, having learned that he would probably be replaced after the 2004 elections, had grown weary of taking flak for the president and threw the Libby investigation hot potato to Comey.

· In the fall of 2003, Comey, who hoped to replace Ashcroft as attorney general, in turn passed the hot potato to Fitzgerald, a former colleague and one of his best friends.

I rest my cases.

dt@digenovatoensing.com

Victoria Toensing, a deputy assistant attorney general in the Reagan administration, is a Washington lawyer.