Aug 30 2006

Fitzgerald’s Lies To US Appeals Court

Published by at 8:45 am under All General Discussions,Plame Game

Well, after assessing Fitzgerald’s falsehoods, misleading statements and half truths at his press conference and his submission to the US SC, you would guess I would want to see how badly Fitzgerald was shading the truth to the US Court of Appeals. Here is his court submission and we will beging the fisking. The very first paragraph is basically a lie to the court:

The Special Counsel’s investigation concerns alleged leaks of purportedly classified information by one or more government officials to reporters in apparent retaliation for a former government official’s exercise of his First Amendment right to publicly criticize the government. During its investigation, the government has made narrow requests to a limited number of reporters for information crucial to the resolution of the investigation.

We now know this entire claim is false. The apparent retaliation did not exist because Fitzgerald knew Armitage was the leaker of the Novak story – the incident which was claimed to be the retaliation itself. Also, the resolution of the inquiry as stated was complete at this time. Again, if Fitzgerald was being held to the same standard as Libby he would be charged with perjury here. As I found in his press conference, Fitzgerald admitted at this time he had NO INKLING of any criminal actions. None.

Although the government took the position that it was not legally required to make any factual showing prior to demanding compliance with the subpoenas, in order to assure the district court that the subpoenas were appropriate, the government submitted, ex parte and under seal, detailed summaries of evidence gathered during the course of the investigation, with specific references to grand jury witness testimony, and materials identified as “classified.”

I will repeat another observation I made in the US SC submission analysis: if Fitzgerald did not include Armitage’s admission to being the source of the leak I think he is in career-ending trouble. And I cannot see how any court would allow the witch hunt to continue if the prosecutor had what was, for all intents and purposes, a signed confession in hand. QED: Fitz provided incomplete evidence to the judges.

In the Op-ed piece, Wilson, a retired career State Department official, asserted that he had taken a trip to Niger at the request of the CIA in February 2002 to investigate allegations that yellowcake uranium had been sought or obtained by Iraq from Niger.

This is the same misinformation I noted in the US SC briefing – which makes sense. The counsel would copy over vast sections of this submission to create the US SC one (including his half truths). I will not repeat anymore observations here which overlap with the US SC analysis. We all know Wilson claimed that Cheney directed his trip and learned of his conclusions in the Op-Ed. Accuracy apparently is not one of Fitzgerald’s strengths.

After Novak’s column was published, it was reported that other reporters had been told by government officials that Wilson’s wife worked at the CIA monitoring weapons of mass destruction, and that she was involved in her husband’s being sent to Africa.

All emphasis mine of course. Note the claim in this submission is that these other reporters were being ‘told’ (the verb implies the government is being pro-active, not re-active to queries) AFTER the Novak article came out. But Fitzgerald KNOWS Armitage was his source before the article. Why the innaccurate wording? Is Fitzgerald accidentally implying a lot of action (Rove and Libby) actually occurred AFTER the key leak? Of course he is. That was the situation as he knew it back then!

The subpoena was issued in full compliance with the Department of Justice guidelines regarding the issuance of subpoenas to members of the news media, which require that subpoenas in criminal cases be issued only where there are reasonable grounds to believe that a crime has occurred and that the information sought is essential to a successful investigation,…

“The investigation” as described in the intro was into the leak to the media regarding Novak’s article. This is clearly the impression Fitzgerald is communicating in this document. But he knows that is not the case. He knows, as of this submission, the conclusion of “the investigation” as he defined it above. He is not telling the truth here. Then there is this – Cooper and Time agreed to a limited response to the a request regarding a SINGLE administration figure:

In an effort to negotiate Cooper’s compliance with the subpoena, the Special Counsel offered to limit the subpoena’s scope to cover conversations between Cooper and a specific individual identified by the Special Counsel.

After being held in contempt, and after filing notices of appeal, Cooper and Time agreed to comply with the subpoenas as limited by the Special Counsel, on the understanding that the Special Counsel explicitly reserved the right to seek additional testimony and documents from Cooper and Time, if necessary.

On September 13, 2004, the grand jury issued subpoenas to Cooper and Time seeking: “testimony and documents relating to conversations between Cooper and official source(s) prior to July 14, 2003, concerning in any way: former Ambassador Joseph Wilson; the 2002 trip by former Ambassador Wilson to Niger; Valerie Wilson Plame a/k/a Valerie Wilson a/k/a Valerie Plame (the wife of former Ambassador Wilson); and/or any affiliation between Valerie Wilson Plame and the CIA.”

I think we can speculate safely that the first request regarding a single individual was related to Armitage – the known leaker at this time. Cooper and Time resisted on principle, but once it was limited to Armitage they relented because Cooper had no contact with Armitage. Then Fitzgerald changed gears and decided to do go on a fishing expidition under the guise of the original investigation – which was basically complete. It was this second round, looking for a target in the White House that fit the conspiracy theory stated above, that is so aggregious. Sept 13 2004 Fitzgerald ran off the rails. I won’t take up space here, but there is a similar pattern with the NY Times, nothing responsive to the single source. Miller did fight this initial request possibly aimed at Armitage.

So why is Fitz shading and hiding the full truth? He notes a possible reason himself in the submission:

Branzburg said that the courts should not be placed in the role of balancing law enforcement interests and the interests of reporters on a case-by-case basis, but that the courts could intervene in cases of bad faith investigations. … Court. Absent a bad faith investigation, there is no First Amendment reporter’s privilege to resist giving evidence to a grand jury.

See, if the investigation is deemed to be a fishing expidition Fitz could not compel testimony. So the LAST THING he could admit to these courts was he had a confession in hand for the leak. Throughout this brief “the investigation” was defined as investigating the leak to Novak. So one can challenge Fitzgerald’s honesty when we see this kind of statement:

Nevertheless, the government submitted materials that allowed the district court to independently evaluate the ongoing investigation, including the need for the reporter’s evidence and the exhaustion of alternative sources for the information.

I won’t belabor this point with multiple citations throughout this document where Fitz claims he needs to testimony for “the investigation”, which by his definition we all know was complete at this point.

Fitzgerald’s entire argument to compel testimony relied on the assumption his investigation was “in good faith”. But how could that be with Armitage’s addmission of “guilt”? How could that be when none of Libby or Rove’s actions resulted in Valerie Plame’s identity being exposed? How could the investigation be in good faith when, as defined by Fitzgerald in this brief, it was clearly over? This is where Fitzgerald needs to answer some questions.

Addendum: Check out this snippet from the case being sited by Fitzgerald and note how it reflects on “the investigation”:

At the end of the majority opinion in Branzburg, the Court noted that “news gathering is not without its First Amendment protections.” Id. at 707. The Court stated that in cases where grand jury investigations are conducted in bad faith, without legitimate law enforcement purposes, or to harass the press and disrupt relationships with news sources, a court would be authorized to grant a motion to quash on First Amendment grounds. Id. at 707-08. Justice Powell, who joined the majority opinion, wrote a brief concurring opinion underscoring the point made by the majority:

As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will be tolerated. If a newsman believes that the grand jury is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe his testimony implicates confidential source relationship without legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered.

Again I ask, if Armitage had admitted to the leak which exposed Valerie’s identity which was the focus of the investigation as defined in this submission, isn’t Fitzgerald guilty of lying? Isn’t his investigation at this point marginal to the subject of the investigation? I truly believe this deserves a professional and above board investigation. As the lawyers say – even if to clear Fitzgerald’s good name.

14 responses so far

14 Responses to “Fitzgerald’s Lies To US Appeals Court”

  1. HaroldHutchison says:

    And what is interesting is that I have seen no evidence that Powell and Armitage failed to inform DOJ of the situation.

    Powell’s taking an extremely unfair rap in this case. Unless there is proof that he knew that the DOJ would not clear the matter up, or that Patrick Fitzgerald would have gone as rogue as he did, then his presence in this is a non-issue.

    Powell’s never been liked by conservatives – and I suspect many are just taking cheap shots.

  2. Walter says:


    I think this is good analysis, but there is an important underlying assumption to your argument.

    If the investigation were to determine who leaked the information to Novak, I’d agree that the pursuit of Miller, Cooper, & Russert’s testimony with regard to Libby and Rove was unwarranted. However, if the investigation was to determine whether a conspiracy existed to punish Wilson (or the CIA) by disclosing classified information, the investigation would not end with Novak’s sources.

    It’s important to remember that the DoJ took no action on the initial Plame referral. Woodward and others have said that no significant harm was done by her identification.

    But, after two months, Tenet himself wrote a letter to the DoJ requesting a formal investigation. What had changed or emerged in those two months?

    Several news reports had come out which stated that the leak was done for revenge or punishment. (WaPo and NYT for example). Several news reporters said that they had the information, but did not use it, because of the nefarious motives of those who provided it to them. (Cooper and Pincus).

    As a matter of institutional integrity, Tenet had to defend the CIA. His letter, which got action (as opposed to the initial referral, which got none), obviously had some different content.

    Now, some of the additional effect could be attributed to the source. The Director of Central Intelligence has much more clout (and the President’s ear on a daily basis).

    Isn’t it possible, however, that his letter also referred to the reported efforts of rogue officials disregarding the classification procedures in order to retaliate against a whistleblower?

    This would be consistent with the distinction that Fitzgerald draws between the initial whistleblower’s treatment of classified information and the disclosure of classified information in order to discredit the (even Fitzgerald admits) (possibly well-intentioned but misguided) whistleblower.

    You have to remember that, while the Armitage disclosures are new to us, Judge Walton has known about them for some time. Libby filed motions to discover this and J. Walton read and evaluated Armitage’s testimony in camera (for himself, without showing it to Libby). He does not think it relevant to Libby’s defense.

    Judge Walton has known about the referral for some time. Libby filed motions to discover this and J. Walton read and evaluated the referral documents in camera (for himself, without showing it to Libby). He does not think them relevant to Libby’s defense.

    On the one hand, the fact that J. Walton required Fitzgerald to submit the referral and Armitage’s testimony to him over Fitzgerald’s objections shows that he has some of the same questions we do. On the other, the fact that he said that Libby couldn’t see them shows that the documents satisfied his (if not ours) doubts.

    Just speculation, but even stupid lawyers would rarely leave themselves open to easily disprovable misstatements even in a district court motion hearing. In submissions to the USSC or the DC Circuit, few lawyers would take such chances.

  3. clarice says:

    Harold, the President directed everyone working for the Administration to report to him if they were the source of leaks about Wilson. The WSJ details well, Powell’s perfidy–when Armitage told him, neither informed the President. Armitage went to DoJ(not the President) and Powell had his gc Ford report vaguely to Gonzales that DoS had turned over some material to DoJ. Gonzales played it “by the book” and sought no details so the President remained in the darl. Had he known he surely would have demanded disclosure and no special prosecutor would have been appointed.

    Moreover, he let this, the genesis of the Bush Lied, lie continue along with the pillorying of the Wh and Libby and Rove and innumerable lower level staffer continue for three years without ever coming clean that the leak was totally inadvertent. As inadvertent as it was inconsequential.

    Nice try, but the behavior of DoS officials was outrageous.

  4. HaroldHutchison says:


    So, Armitage is only guilty of cutting out a middleman. And Powell told his general counsel to advise the White House that the State Department was provided relevant material directly to DOJ.

    I see no culpability on the part of Powell or Armitage. The only person who deserves the blame for the witch hunt happening is Patrick Fitzgerald.

    I know Colin Powell is not a favorite of conservatives because he cooperates with Woodward and was also cautious about liberating Iraq. But that’s no excuse to send flak his way when his only sin was not being clairvoyant enough to foresee Patrick Fitzgerald ignoring the evidence that DOJ had received directly from Armitage.

    The case should have ended there. The fact that it did not is the result of one man’s decision as a special prosecutor to pursue Rove and Libby. That special prosecutor was not named Colin Powell or Dick Armitage. His name was Patrick Fitzgerald – and the blame lies solely with him, not Powell or Armitage.

  5. az redneck says:

    HH: That’s the lamest excuse for Powell’s lack of action I could imagine. I”m a conservative and I have always had the greatest respect for him and his INTEGRITY, even tho I didn’t always agree with him.
    For him to know early on that the ‘leak’ was from his shop, and to immediately say, “George, we have a problem” is pathetic and to me negates all his years of faithful service.
    The WSJ and Clarice both are too kind!

  6. The End Game Of The Plame Affair…

    Years ago a story like this one would have begun and ended with the conspiracy story about a President revealing classified information to shut up a critic for the simple reason that there was no alternative to our MSM. Now we have the blogosphere and …

  7. az redneck says:

    NOT immediately….

  8. DubiousD says:

    Seems to me we’re missing the bigger picture here. Why did the liberal Isikoff and the left-wing BDS sufferer-for-life Corn out Armitage in the first place?

    Surely they knew that swiping Armitage’s fig leaf would expose more than just his nether regions? Certainly they must have realized that their “revelation” spells the beginning of the end for Fitzgerald’s investigation… a witch hunt that the Left DESPERATELY wants to see lurch on and on, dragging as many Bush admin names through the mud as possible. Remember, this is an election year.

    So why did they do it? Why were these, um, journalists so eager to suddenly throw Armitage to the wolves… especially since, as AJ has stated countlessly, Armitage’s name has been floated as a possible leaker for two years. Why now?

  9. HaroldHutchison says:


    You are more than welcome to read my review of Killing Pablo at Strategypage, and note that I am willing to hammer him when I think he made a mistake. In this case, I don’t see any culpability on his part or Armitage’s for Fitzgerald’s witch-hunt.

    A reasonable person – and that is what Colin Powell is – would assume that having the person responsible for the revelation go straight to the DOJ would be the end of the matter, particularly when there’s no malice involved.

    Powell probably took the route he did because he didn’t think there would be a problem. You would think than when the person responsible for a leak comes forward without a lawyer, that this would be handled responsibly by the folks at DOJ, particularly a special prosecutor. Instead, there was a witch-hunt aimed at Rove, and that is not the fault of Colin Powell or Dick Armitage. It was due to the decisions and actions of Patrick Fitzgerald.

    Perhaps those who caved into the media fury for a special counsel, John Ashcroft and James Comey, deserve criticism, too. But the fact remains that Armitage told the FBI what he knew, he did so promptly, and without hiding behind an attorney, and that the FBI and, thus the higher-ups at DOJ, knew what had happened in October, 2003.

    Blame Fitzgerald for the witch hunt. Blame Ashcroft and Comey for caving in to the pressure from the MSM for a special counsel. Hell, if you want to blame Armitage for having a penchant for gossip that is more appropriate for Page Six of the New York Post than it is for working at the State Department – go right ahead.

    But it is not fair to blame Powell and Armitage for not being clairvoyant enough to foresee a rogue special prosecutor.

  10. Carol_Herman says:

    Ya know, referring to the Civil War, today; seems like Lincoln won. Losers went home.

    But the truth is more nuanced. Grant wasn’t in charge. INCOMPETENTS were over him! And, by the time 1962 rolled around, HALEK sat on Grant. And, didn’t let him clean up Tennessee. And, the south. WORSE, in 1961, Lincoln fired FREMONT. For winning a UNION battle, and FREEING THE SLAVES where the battle was won. LINCOLN WAS FURIOUS!

    So wars are one thing. Everything worked out well, in the end. Too many men died because HALEK was incompetent. When Grant was not. Spilt milk can’t be pushed back into the bottle.

    What the lingering war years did for Lincoln, was give him to to PROCESS the idea of FREEING THE SLAVES. And, he came to this only slowly. It’s amazing how swiftly history dealt blows to the incompetency of HALEK. But, oh my. All those extra years. All those extra deaths.

    Turns out to have a GRAND STRATEGY, there are no A-Bomb’s that work. JUST TIME.

    Bush has been taking all the time in the world. This time? The shoe is on the other foot. The democrats are gonna be forced to do an UNCONDITIONAL SURRENDER. It’s bad “over there.” They are consuming their own.

    So that time’s different for generals and presidents.

  11. PlameFlop…

    Christian Rocca, su Il Foglio di oggi, racconta agli italiani (che non hanno avuto modo di leggerla da nessun’altra parte) la patetica conclusione del “Plamegate”, lo scandalo che – nei sogni bagnati dei liberal di tutto il pianeta – avrebbe dovuto …

  12. az redneck says:

    HH: When the boss tells the troops to fess up when something is wrong and one of his principal officers does not make sure the boss knows the truth FOR THREE YEARS is guilty of far more than a mistake. For me, he is a craven coward or a petulant sore loser–either cost the adm great and irreputable damage. The majority of Americans will not forget the “Bush lied” meme.
    And yes, Fitz is responsible for today’s situation. That does not excuse Powell’s contribution to the whole sordid mess.

  13. HaroldHutchison says:


    I’ve explained this before. I fail to see how Powell contributed, other than the lack of the ability to predict the future. Are you implying he should be held to that sort of unreasonable standard?

  14. arjay says:


    You’ve lost your argument about Powell. Don’t expect anyone to try to explain it to you any longer. You don’t want to listen. Powell sat idly by while the MSM went after the administration on false premises. Where the hell do you think he was for the last three years? On Pluto? Dumb & Dumber