Plame Case May End With Criminal Going Free and ‘Witnesses’ Jailed

By: William E. Jackson Jr.

A Washington week of interviews with numerous reporters and editors for national news outlets leaves one with a checkered perspective in the case of Valerie Plame and the two witnesses/defendants — Matthew Cooper of Time magazine, who wrote about Plame, and Judith Miller of The New York Times, who did not — still under sentence for contempt of court.

On March 21, more than a month after a three-judge panel of the circuit court for the District of Columbia upheld their October contempt convictions, joint counsel Floyd Abrams filed an appeal requesting a re-hearing. In talking to E&P this week, he did not sound very optimistic as to their chances: “It’s not as if the court routinely grants such a request — but we are taking every step available to us.”

If the appeal is heard, there is a widespread assumption among close observers that it will result in a unanimous opinion upholding the lower court. (And virtually no lawyer involved thinks the Supreme Court would later consider the case on appeal.) But no one knows how long it will take for the eight judges to decide. In the meantime, should the grand jury expire, special prosecutor Patrick Fitzgerald can renew it.

Paradoxically, there is now little expectation that Fitzgerald will succeed in identifying the person or persons in the Executive Office of the President who was first to knowingly and intentionally violate the Intelligence Identities Protection Act by revealing Valerie Plame’s covert CIA identity to journalists. It appears that every official is in a position to claim that her name was “out there,” in circulation, before Bob Novak’s July column, and that they merely repeated what had been heard from someone else to members of the press or the administration.

For example, Vice President Dick Cheney’s chief of staff, I. Lewis “Scooter” Libby — a skilled lawyer — is claiming that he first heard Plame’s name from a press source. (Bob Novak is speculated to be Scooter’s alleged source; Judith Miller comes in second.) If Libby mentioned the sensitive information to staff, they might have passed on what they had heard about Plame to selected reporters, without necessary knowledge of the law.

Or other reporters could have first heard of Plame from Novak’s column, or Matt Cooper’s online story a few days later, and then called officials for confirmation. However, as later claimed by Novak, her professional identity may not have been “much of a secret,” as Walter Pincus of The Washington Post — who did not write about it at the time — had heard the tale before any word appeared in public print.

Thus, it would seem to be only a matter of time before Fitzgerald concludes an inconclusive investigation into who committed a felony.

Yet he persists in prosecuting the two known remaining witnesses to the alleged crime, for contempt of court in refusing to reveal confidential sources. Is he just dotting the i’s and crossing the t’s before closing down the investigation? It is difficult to imagine a scenario in which the criminal is not found but the witness to the crime is sent to jail. As in the Cuban missile crisis, will one party blink?

Since much of Fitzgerald’s evidence has been presented in secret, with case documents substantially redacted, defense counsel Abrams’ strongest argument may be violation of due process. Ironically, these barriers can also insure that Judith Miller never has to fear public embarrassment from the details of her own involvement leaking out.

The bloom is definitely off this case. No longer does one hear it described as a once-in-a-generation showdown between the government and the Fourth Estate over the First Amendment. It?s not that it is being ignored by the working press; indeed, several reporters told me that, unfortunately, the Plame affair is often mentioned by would-be confidential sources when explaining their skittishness in talking about classified matters, doubly so given the obsession with secrecy of the Bush White House.

The chief of one top chain’s Washington bureau speaks of leads on stories that have “fizzled.” A senior investigative reporter for a prominent national newspaper made the point that there is no way to measure the insidious effect of the Fitzgerald probe, in that it has become an invisible part of the warp and woof of the relationship between a free press and a security-obsessed administration.

One of Miller’s former colleagues put it this way when describing her problematic role in the Plame case: “She has made it tougher for us all” by, in his view, essentially inventing the claim that she was contemplating a story about Plame.

NEXT: Miller takes her case to the public.

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