As U.S. attorney Patrick J. Fitzgerald's two-year investigation into the CIA leak case reportedly draws to a close, the long-standing debate over the origins of the scandal, the merits of the federal investigation, and the legal authority of the prosecutor has intensified greatly. At issue is the disclosure to the press of the identity of CIA agent Valerie Plame, which first appeared in syndicated columnist Robert D. Novak's July 14, 2003, column. Bush administration officials allegedly leaked her identity in order to discredit her husband, former ambassador Joseph C. Wilson IV, a vocal critic of the White House's decision to go to war with Iraq.
In this rhetorical environment characterized by limited information and boundless speculation, those defending the officials at the center of Fitzgerald's probe have advanced numerous falsehoods and distortions. As Media Matters for America documents below, the media have not only failed to challenge many of these claims, but also repeated them.
Shortly after Newsweek published an email by Time magazine reporter Matthew Cooper to Time Washington bureau chief Mike Duffy saying that, according to White House deputy chief of staff Karl Rove, “Wilson's wife” worked at the CIA, Rove's lawyer responded by noting that his client had not stated her actual name. Several news outlets went on to report Rove's response as if his reported omission of Plame's name was relevant to whether he violated the law. Simultaneously, commentators such as former presidential adviser David Gergen and Washington Times chief political correspondent Donald Lambro, as well as the Republican National Committee (RNC), began to advance the argument that because Rove didn't specifically name her, he did not reveal her identity.
But whether leakers identified Plame as “Valerie Plame,” “Valerie Wilson,” or “Wilson's wife” is irrelevant, both as a practical matter and likely as a legal matter. Practically speaking, a quick Google search of Joseph Wilson at the time would have produced Plame's actual name. As such, administration defenders have declared that whether her name was mentioned to reporters likely has no bearing on whether there was a violation of the law. Despite having previously implied that there is a meaningful distinction between disclosing her name and her identity before, Rove's attorney, Robert Luskin, later conceded that drawing such a line was “too legalistic.” Similarly, Victoria Toensing, the Republican lawyer who helped draft the potentially applicable 1982 Intelligence Identities Protection Act (IIPA), agreed that the use of her name is “not an important part of whether this is a crime or not.”
Nonetheless, numerous media figures recently revived this claim in the wake of New York Times reporter Judith Miller's revelation that the source who told her that Plame worked at the CIA, Vice President Dick Cheney's chief of staff I. Lewis “Scooter” Libby, also never disclosed her actual name.
An RNC talking points memo made public on July 12 accused Wilson of falsely claiming “that it was Vice President Cheney who sent him to Niger.” The allegation that Wilson had lied about the genesis of his trip was soon repeated by RNC chairman Ken Mehlman, who argued that this fact justified the purported leaking of Plame's identity to the press and that the White House had simply been attempting to set the record straight.
New York Times columnist David Brooks made this argument at least twice (here and here). And a string of journalists and commentators -- including CNN's Dana Bash, The Washington Post's Mike Allen, Newsweek's Jon Meacham, and U.S. News and World Report's Michael Barone -- parroted the allegation during news reports and media appearances in the following weeks. NBC chief foreign affairs correspondent Andrea Mitchell recently repeated the claim as a guest on MSNBC's Hardball with Chris Matthews.
But Wilson never said that Cheney sent him to Niger. To support this accusation, the RNC had misrepresented his July 6, 2003, op-ed in The New York Times and distorted a remark he made in an August 3, 2003, interview on CNN's Late Edition with Wolf Blitzer. Contrary to their allegation, Wilson clearly stated in the op-ed that “agency officials” had requested he travel to Niger. Further, in the CNN appearance, he stated it was “absolutely true” that Cheney was unaware he went on the trip.
In their ongoing attempts to justify the alleged leaks, Mehlman and other supporters claimed that the White House had a legitimate interest in setting the record straight by disclosing that Plame, not Cheney, was actually responsible for Wilson being sent to Niger. In a January 2005 Washington Post op-ed, attorneys Victoria Toensing -- a friend of Novak -- and Bruce W. Sanford framed the leak in such a light and suggested that Novak outed Plame because he wanted to “expose wrongdoing” -- i.e., the alleged nepotism that led to Wilson's assignment. Numerous reporters subsequently repeated that Plame suggested Wilson for the trip, including The Washington Post's Jim VandeHei, MSNBC host Chris Matthews, and, most recently, MSNBC correspondent David Shuster.
But what these reporters stated as fact is actually in dispute. Unnamed intelligence officials have been quoted in the media claiming that the CIA -- not Plame -- selected Wilson for the mission. Also, CIA officials have disputed the accuracy of a State Department intelligence memo that reportedly indicates that Plame “suggested” Wilson's name for the trip.
Novak himself claimed that the Senate Intelligence Committee, in its 2004 "Report on the U.S. Intelligence Community's Prewar Intelligence Assessments on Iraq," concluded that Plame suggested the trip. In fact, the committee did not officially conclude that she had been responsible for Wilson's assignment.
Falsehood: Wilson was not qualified to investigate the Niger claims
In conjunction with the claim that nepotism led to the selection of Wilson for the trip to Niger, several conservative media figures have attempted to cast the former ambassador as unqualified to investigate the claims that Iraq attempted to purchase uranium yellowcake form the African country. Toensing has repeatedly claimed that he lacked “any experience in WMD” and “any kind of senior experience in that country.” National Review Washington editor Kate O'Beirne has described Wilson as “no expert in weapons of mass destruction.”
In an apparent effort to undermine the possibility that the alleged White House leakers committed a crime, both The Washington Times editorial page and right-wing radio host Rush Limbaugh have argued that Plame's identity was known by many in Washington, D.C., at the time Novak published his column outing her as “an agency operative.” As support for this argument, the Times claimed that “numerous neighbors were aware that she worked for the agency.”
In fact, none of the neighbors cited in The Washington Times' own news reports or in other reports said that they knew before reading the Novak column that Plame worked at the CIA. Her acquaintances told reporters that they believed she worked as a private “consultant.”
Falsehood: Fitzgerald must prove that Plame's covert status was leaked
Recent reports from a number of news outlets have attributed legal significance to whether Rove and Libby leaked Plame's covert status to the press. But as with the issue of whether Plame's actual name was leaked, whether the officials communicated her status as a covert operative is likely not relevant to the question of whether their actions violated federal law. According to news reports, a 2003 State Department memo -- which was likely read by top administration officials during a trip to Africa -- designated as “S” for “secret” a section mentioning Plame, even though it did not mention her covert status. Therefore, the information allegedly disclosed by Rove and Libby -- that she worked at the CIA -- was apparently classified.
Falsehood: Fitzgerald's investigation was originally limited to possible violation of 1982 law
Conservative commentators have reacted to reports that Fitzgerald is looking at a variety of legal approaches to the CIA leak investigation by characterizing him as a “runaway prosecutor” or a Captain Ahab “chasing a white whale.” The argument put forth by Toensing, as well as columnists Richard Cohen and George F. Will is that, in pursuing such charges, the special prosecutor is overstepping his mandate. The claim underlying this argument is that the Department of Justice (DOJ) originally granted him authority to investigate whether the alleged leakers had violated the 1982 Intelligence Identities Protection Act (IIPA).
But the DOJ's delegation of Fitzgerald as special prosecutor gave him broad authority to investigate the leaks; it made no mention of the IIPA, nor did it name any other specific statute. The DOJ official who appointed Fitzgerald as special prosecutor, then-deputy attorney general James Comey, stated in a December 30, 2003, press conference that “Mr. Fitzgerald alone will decide ... what prosecutive [sic] decisions to make” and that “he can pursue it [the leak investigation] wherever he wants to pursue it.” In a February 6, 2004, letter to Fitzgerald, Comey further clarified that his delegation included the “authority to investigate and prosecute violations of any federal crime laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.”
Despite the lack of evidence that the DOJ limited the scope of Fitzgerald's investigation in any way, two recent New York Times articles (here and here) reported that he was appointed to investigate “whether government officials had violated a 1982 law that makes it a crime in some circumstances to disclose the identity of an undercover agent.”
Similar to this baseless claim is Weekly Standard editor William Kristol's recent assertion that the CIA referred the case to the DOJ specifically as a possible violation of the IIPA. But the initial news reports on the referral indicate that the CIA more generally requested that the DOJ “investigate allegations that the White House broke federal laws by revealing the identity of one of its undercover employees.” Moreover, a “former government official” quoted in Newsweek stated that the CIA's referral never even mentioned the IIPA.
Conservative commentators have made what appear to be preemptive accusations that Fitzgerald is a partisan. Numerous Fox News personalities -- including Chris Wallace, Sean Hannity, Stuart Varney, and Bill O'Reilly -- have stated that his probe represents the "criminalization of politics." William Kristol penned a Weekly Standard editorial on the topic titled "Criminalizing Conservatives." On the October 19 edition of Fox News' Your World with Neil Cavuto, nationally syndicated radio host Mike Gallagher claimed that this investigation -- like the recent indictment of former House Majority Leader Tom DeLay (R-TX) on money laundering charges -- “is driven by partisan politics.”
But Fitzgerald is no Democratic partisan. In September 2001, President Bush appointed Fitzgerald to his current post as U.S. Attorney for the Northern District of Illinois upon the recommendation of then-Sen. Peter Fitzgerald (R-IL). When then-deputy attorney general James Comey selected Fitzgerald as special prosecutor in December 2003, he cited his “sterling reputation for integrity and impartiality” and described him as “an absolutely apolitical career prosecutor.” And in a recent interview on NBC's Today, President Bush described the prosecutor's investigation as “dignified.” Moreover, in his capacity as U.S. attorney, Fitzgerald is also currently conducting an "intense" investigation of the Democratic mayor of Chicago, Richard M. Daley, and his administration.
Despite Fitzgerald's background, Limbaugh suggested on the October 20 broadcast of his nationally syndicated radio show that if the outcome of the CIA leak investigation is “over the top,” he and other conservatives may target the prosecutor:
LIMBAUGH: [W]e're going to be watching ... very carefully here to see what Fitzgerald does, the special prosecutor here. If he conducts himself in a way that we find over the top, we'll say so. You can count on it. Now, you liberals, you viciously attacked [former independent counsel] Ken Starr. You went out there and tried to portray him as a sexual pervert, a voyeur. You did everything you could to destroy Ken Starr's reputation and his life, and now you demand that we accept whatever comes down the pike that we must be consistent. Well, it depends on what it is. If it stinks, I will say so. Pure and simple.
Falsehood: Leaks go on all the time in Washington
In defense of the Bush administration officials alleged to have disclosed Plame's CIA identity, numerous media figures have attempted to downplay the alleged leak as par for the course in Washington. Washington Post columnist Richard Cohen claimed that such leaking is “what Washington does day in and day out” and that it “is rarely considered a crime.” On the October 20 edition of MSNBC's Hardball with Chris Matthews, Republican strategist Ed Rollins stated, “We know for sure that a couple of very high-ranking White House guys talked to some reporters and basically tried to go out and diminish someone who was criticizing them. I mean, that goes on every single day in the White House.”
But Cohen and Rollins glossed over the fact that this leak allegedly involved the identity of a CIA operative -- potentially a crime -- although Cohen subsequently issued a "clarification" in which, responding to readers, he wrote that he does consider “the outing of a covert employee a serious matter.” Former President George H.W. Bush expressed his view of such actions during an April 26, 1999, speech at the dedication of the CIA's George Bush Center for Intelligence. He stated: “I have nothing but contempt and anger for those who betray the trust by exposing the name of our sources. They are, in my view, the most insidious of traitors.”