Libby sent Miller a friendly letter that read like an invitation to testify but also to stick with the team. “Out West, where you vacation, the aspens will already be turning,” Libby wrote. “They turn in clusters, because their roots connect them.”
On Oct. 28, 2005, after securing the reluctant testimony of Judith Miller, special prosecutor Fitzgerald obtained a five-count indictment of Lewis Libby for lying to the FBI, perjury before the grand jury and obstruction of justice.
Fitzgerald opted for a narrow criminal case centered on run-of-the-mill charges rather than daring to run the potential legal gauntlet of the largely untested Intelligence Identities Protection Act of 1982.
That law had been enacted with the goal of punishing CIA enemies, the likes of rogue CIA agent Philip Agee and others who outed covert agents as a means to sabotage U.S. intelligence activities.
In writing the law, Congress never anticipated the facts of the Plame case, that senior U.S. government officials would divulge the identity of a covert CIA officer as a way to discredit a spouse.
Despite those unusual circumstances, the law would seem to apply to the facts of the Plame case. Many of the Bush administration participants were aware of Plame’s covert status and knew that the U.S. government had classified her identity.
Arguably, Fitzgerald could have used the law to build a conspiracy case against some of the top administration officials, including Vice President Cheney, political adviser Rove, Deputy Secretary of State Armitage and conceivably Bush himself.
But Fitzgerald surely would have encountered a ferocious political counterattack, not to mention daunting legal obstacles. For instance, there might have been constitutional issues about a President’s inherent authority to declassify information and whether that power could be delegated to the Vice President.
If Libby, Rove and possibly Armitage were operating under instructions from Cheney or Bush, would that authorization constitute a defense? Could defense lawyers sabotage the case by demanding classified White House documents about the Wilson matter and then have Bush refuse to release the material? Might legal challenges over these issues tie up the case for years?
During the Iran-Contra scandal of the 1980s, special prosecutor Lawrence Walsh had faced similar problems when defendants, such as former White House aide Oliver North, identified documents needed for the defense while old friends in the White House knew that by refusing to declassify the documents they could frustrate and kill the case.
Eventually, Walsh was forced to jettison his more ambitious criminal charges related to arms trafficking and money-laundering and focus only on narrower issues, such as North’s lying to Congress and accepting an illegal gift.
Rather than follow Walsh’s trail – starting out with ambitious charges and then retreating to more mundane ones – Fitzgerald started with the garden-variety crimes of perjury and obstruction, and only indicted Libby.
Some Americans, especially Iraq War critics, were deflated by Fitzgerald’s insistence that he would prosecute only clearly defined crimes stemming from the Plame case, not venture into a fuller narrative about the Bush administration’s justifications for war.
While denouncing Libby’s deceptions as a serious crime, Fitzgerald splashed cold water on the notion that his investigation might unravel a larger government conspiracy, even though one of his subsequent court filings asserted that the White House had engaged in a “concerted” effort to “discredit, punish or seek revenge against” Wilson because of his criticism of the administration.
In the end, the consequences from the Bush administration’s determination to discredit a troublesome critic have already been severe. Libby’s conviction on four of the five counts means that he stands as a convicted felon. The White House also has suffered grave political damage.
However, the price exacted by the administration and its allies against the Wilson-Plame family has been steep, too. Valerie Plame was first sidetracked at the CIA because of the outing of her identity and finally quit the agency on Dec. 9, 2005.