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What Libby Indictment Left Out Says a Lot

Posted on: Friday, 4 November 2005, 06:00 CST

By Mark Memmott

WASHINGTON -- When an investigation began two years ago into who leaked a CIA officer's name to syndicated columnist Robert Novak, it made sense to think Novak would be a key player at any trial.

However, he's barely mentioned in the indictment against I. Lewis "Scooter" Libby, Vice President Cheney's former chief of staff, who was arraigned Thursday on five counts of lying to investigators and the grand jury probing the leak.

Now, as Libby prepares for a trial next year, attorneys and legal experts say the fact that Novak is not critical to the case says a lot about what Special Counsel Patrick Fitzgerald has decided about the alleged original crime -- the leak. It also signals that Libby was not one of Novak's sources on the story, they say.

Novak's absence from the case, says attorney Steven Reich, supports the assumption that Fitzgerald decided the leak itself wasn't a crime. Reich was a senior associate counsel in the Clinton White House. He's now with the law firm Manatt, Phelps & Phillips.

No charges for leaking name

No one who leaked CIA officer Valerie Plame's name has been charged with a crime for doing so, and Fitzgerald has said his investigation is nearly over. It can be illegal to disclose a CIA officer's name, but the laws prohibiting it are very narrowly written and make it very difficult to prove any violation.

"So, given that the case seems to turn squarely on what happened inside the grand jury and in conversations (Libby had) with Mr. Fitzgerald's investigators," Reich says, "it seems that what happened with Mr. Novak is essentially beside the point," because no crime was likely committed by the person who told Novak about Plame.

Novak's role in the "outing" of Plame remains a fascinating part of a complicated story because it was his July 14, 2003, column that disclosed her identity. Novak wrote that he had been told that Plame was an "operative" at the agency by "two senior administration officials," neither of whom he named. Novak has said the original source was "not a partisan gunslinger," and he said the second source merely confirmed what the first had said. That second source, according to a person with knowledge of White House Deputy Chief of Staff Karl Rove's testimony to the grand jury, was Rove. Rove spoke with at least one other reporter about Plame: Time magazine reporter Matthew Cooper has written that he discussed Plame with Rove in July 2003.

Novak has said little else about who his sources were. Both Novak, through an assistant, and his attorney declined to comment further this week.

But attorneys and former prosecutors draw this conclusion about Novak's "original" source: It almost surely was not Libby. Why they say that:

*In the indictment, Fitzgerald details conversations Libby had about Plame with Time's Cooper and with Judith Miller of The New York Times. He mentions no conversations between Libby and Novak.

*Fitzgerald also lays out in great detail the conversations Libby had about Plame with seven government officials, including Cheney.

If Fitzgerald is aware of a conversation between Libby and Novak, it is likely he would have mentioned it in the indictment, says Randall Eliason, an adjunct law professor at American University and George Washington University and a former assistant U.S. attorney in the District of Columbia.

"Either Libby never spoke to Novak or if he did, the prosecutor felt he didn't lie about it" later and it wasn't pertinent to the case against Libby, says Michael Madigan, an attorney at Akin Gump Strauss Hauer & Feld. He was a counsel to Republicans on the Senate Watergate Committee.

Evidence Libby wasn't source

Other clues that lead to the conclusion that Libby was not a source for Novak on the Plame leak come from outside Fitzgerald's investigation:

*Plame's husband, Joseph Wilson, wrote in his 2004 book The Politics of Truth that four days before Novak's column ran, Novak told him a "CIA source" said Plame worked at the CIA.

*A mystery source -- who wasn't Libby -- also apparently talked to Washington Post reporter Walter Pincus about Plame a month before Novak's column was published. That's a sign that some other "senior administration official" was pitching the story and may also have been Novak's original source.

The Post has reported that Libby was not Pincus' source. Pincus, who covers intelligence issues, has written that the person was a "senior administration official" whom he was interviewing about "a matter involving alleged Iraqi nuclear activities" -- a topic he is unlikely to have called Rove to discuss.

(c) Copyright 2005 USA TODAY, a division of Gannett Co. Inc.

Source: USA TODAY

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