September 2, 2006
New Questions About Inquiry in C.I.A. Leak
By DAVID JOHNSTON
WASHINGTON, Sept. 1 ? An enduring mystery of the C.I.A. leak case has been solved in recent days, but with a new twist: Patrick J. Fitzgerald, the prosecutor, knew the identity of the leaker from his very first day in the special counsel?s chair, but kept the inquiry open for nearly two more years before indicting I. Lewis Libby Jr., Vice President Dick Cheney?s former chief of staff, on obstruction charges.
Now, the question of whether Mr. Fitzgerald properly exercised his prosecutorial discretion in continuing to pursue possible wrongdoing in the case has become the subject of rich debate on editorial pages and in legal and political circles.
Richard L. Armitage, the former deputy secretary of state, first told the authorities in October 2003 that he had been the primary source for the July 14, 2003, column by Robert D. Novak that identified Valerie Wilson as a C.I.A. operative and set off the leak investigation.
Mr. Fitzgerald?s decision to prolong the inquiry once he took over as special prosecutor in December 2003 had significant political and legal consequences. The inquiry seriously embarrassed and distracted the Bush White House for nearly two years and resulted in five felony charges against Mr. Libby, even as Mr. Fitzgerald decided not to charge Mr. Armitage or anyone else with crimes related to the leak itself.
Moreover, Mr. Fitzgerald?s effort to find out who besides Mr. Armitage had spoken to reporters provoked a fierce battle over whether reporters could withhold the identities of their sources from prosecutors and resulted in one reporter, Judith Miller, then of The New York Times, spending 85 days in jail before agreeing to testify to a grand jury.
Since this week?s disclosures about Mr. Armitage?s role, Bush administration officials have argued that because the original leak came from a State Department official, it was clear there had been no concerted White House effort to disclose Ms. Wilson?s identity.
But Mr. Fitzgerald?s defenders point out that the revelation about Mr. Armitage did not rule out a White House effort because officials like Mr. Libby and Karl Rove, the senior white House adviser, had spoken about Ms. Wilson with other journalists. Even so, the Fitzgerald critics say, the prosecutor behaved much as did the independent counsels of the 1980?s and 1990?s who often failed to bring down their quarry on official misconduct charges but pursued highly nuanced accusations of a cover-up.
Mr. Armitage cooperated voluntarily in the case, never hired a lawyer and testified several times to the grand jury, according to people who are familiar with his role and actions in the case. He turned over his calendars, datebooks and even his wife?s computer in the course of the inquiry, those associates said. But Mr. Armitage kept his actions secret, not even telling President Bush because the prosecutor asked him not to divulge it, the people said.
Mr. Armitage has not publicly commented on the matter. The people who spoke about Mr. Armitage?s thoughts and action did so seeking anonymity on the grounds that the criminal case was still open and that their remarks were not authorized by the prosecutor. A spokesman for Mr. Fitzgerald declined to comment.
Mr. Fitzgerald, who has spoken infrequently in public, came close to providing a defense for his actions at a news conference in October 2005, when Mr. Libby was indicted. Mr. Fitzgerald said that apart from the issue of whether any crime had been committed, the justice system depended on the ability of prosecutors to obtain truthful information from witnesses during any investigation.
The information about Mr. Armitage?s role may help Mr. Libby convince a jury that his actions were relatively inconsequential, because even Mr. Armitage, not regarded as an ally of Mr. Cheney, was talking to journalists about Ms. Wilson?s role.
But the trial, scheduled for early next year, may be focused on the narrow questions of whether Mr. Libby?s accounts to the grand jury and the F.B.I. were true. Judge Reggie M. Walton of Federal District Court, who is presiding, has resisted efforts by Mr. Libby?s lawyers to give the case a wider political scope.
Mr. Fitzgerald may also point out that Mr. Armitage knew about Ms. Wilson?s C.I.A. role only because of a memorandum that Mr. Libby had commissioned as part of an effort to rebut criticism of the White House by her husband, Joseph C. Wilson IV.
Mr. Fitzgerald was named as a special counsel to investigate whether the leaking of Ms. Wilson?s identity as a C.I.A. officer was part of an administration effort to violate the law prohibiting the willful disclosure of undercover employees.
Some administration critics asserted that her identity had been disclosed in the Novak column as part of a campaign to undermine her husband. Mr. Wilson was sent by the C.I.A. in 2002 to Africa to investigate whether the Iraqi government had obtained uranium ore for its nuclear weapons program.
On July 6, 2003, a week before the Novak column, Mr. Wilson wrote a commentary in The New York Times saying his investigation in Africa had led him to believe that it was highly doubtful that any uranium deal had ever taken place and that the Bush administration had twisted intelligence to justify the Iraq war.
Mr. Armitage spoke with Mr. Novak on July 8, 2003, those familiar with Mr. Armitage?s actions said. Mr. Armitage did not know Mr. Novak, but agreed to meet with the columnist as a favor for a mutual friend, Kenneth M. Duberstein, a White House chief of staff during Ronald Reagan?s administration. At the conclusion of a general foreign policy discussion, Mr. Armitage said in reply to a question that Ms. Wilson might have had a role in arranging her husband?s trip to Niger.
At the time of the offhand conversation about the Niger trip, Mr. Armitage was not aware of Ms. Wilson?s undercover status, those familiar with his actions said. The mention of Ms. Wilson was brief. Mr. Armitage did not believe he used her name, those aware of his actions said.
Whoozyer: This would the part that led Novak to look up Wilson in the "Who's Who" guide?
On Oct. 1, 2003, Mr. Armitage was up at 4 a.m. for a predawn workout when he read a second article by Mr. Novak in which he described his primary source for his earlier column about Ms. Wilson as ?no partisan gunslinger.? Mr. Armitage realized with alarm that that could only be a reference to him, according to people familiar with his role. He waited until Secretary of State Colin L. Powell, an old friend, was awake, then telephoned him. They discussed the matter with the top State Department lawyer, William H. Taft IV.
Mr. Armitage had prepared a resignation letter, his associates said. But he stayed on the job because State Department officials advised that his sudden departure could lead to the disclosure of his role in the leak, the people aware of his actions said.
Later, Mr. Taft spoke with the White House counsel, Alberto R. Gonzales, now the attorney general, and advised him that Mr. Armitage was going to speak with lawyers at the Justice Department about the matter, the people familiar with Mr. Armitage?s actions said. Mr. Taft asked Mr. Gonzales whether he wanted to be told the details and was told that he did not want to know.
One day later, Justice Department investigators interviewed Mr. Armitage at his office. He resigned in November 2004, but remained a subject of the inquiry until this February when the prosecutor advised him in a letter that he would not be charged.
But Mr. Fitzgerald did obtain the indictment of Mr. Libby on charges that he had untruthfully testified to a grand jury and federal agents when he said he learned about Ms. Wilson?s role at the C.I.A. from reporters rather than from several officials, including Mr. Cheney.
Mr. Libby has pleaded not guilty to all the charges and his lawyers have signaled he will mount a defense based on the notion that he did not willfully lie.
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