At Libby hearing, House Republicans repeatedly touted never-corrected March Wash. Post editorial

At a July 11 House Judiciary Committee hearing on presidential clemency powers -- particularly as they apply to President Bush's commutation of former vice presidential chief of staff I. Lewis “Scooter” Libby's prison sentence -- three Republican committee members touted a March 7 Washington Post editorial about the Libby trial, echoing the editorial's factual distortions on two key issues: Valerie Plame's status as a covert CIA operative at the time her identity was leaked, and Libby's reported role in leaking the information. The Post editorial page has yet to address these distortions.

The Post stated in the March 7 editorial that Libby's trial -- on charges of obstruction of justice, perjury, and false statements -- provided “no evidence” that Valerie Plame was a covert CIA operative at the time her name was leaked to columnist Robert D. Novak. But the reason no evidence on Plame's covert status was provided at trial was not, as the Post falsely suggested, that such evidence was lacking, but, rather, that U.S. District Court Judge Reggie B. Walton disallowed such evidence as irrelevant to the charges. As journalist Murray Waas noted in his book The United States v. I. Lewis Libby (Union Square Press, June 2007), Judge Walton instructed the jury that "[n]o evidence will be presented to you as to Valerie Plame Wilson's status with the Central Intelligence Agency."

From Pages 87 and 88 of The United States v. I. Lewis Libby:

THE COURT [Judge Walton]: Ladies and gentlemen, in reference to what was just said, I need to give you an instruction again. It was one of the instructions I gave you during my preliminary instructions. No evidence will be presented to you as to Valerie Plame Wilson's status with the Central Intelligence Agency, also known as the CIA, and whether or not disclosure of that status would pose a risk of damage to national security or Ms. Wilson herself. That is because, what her actual status was, or whether any damage will result from the disclosure of her status are totally irrelevant to your assessment of the defendant's guilt or innocence on the charges for the offenses the defendant has been charged with in this case.

You must therefore not consider those matters in your deliberations or speculate or guess about them. You may consider, however, what if anything Mr. Libby knew or believed about her status and any damage disclosure of her status could cause in assessing what his state of mind was when he spoke to the FBI agents and testified before the Grand Jury.

Further, since the editorial appeared, special counsel Patrick Fitzgerald has revealed that the CIA “acknowledged” Plame was in fact a covert operative at the time of the disclosure. As Media Matters for America has repeatedly noted, in a May 25 sentencing memorandum, Fitzgerald wrote that "[a]t the time of the leaks, Ms. Wilson in fact qualified as a 'covert agent' within the meaning of the IIPA [Intelligence Identities Protection Act]." To support this statement, Fitzgerald included an "unclassified summary" of Plame's employment at the CIA -- which had been given to Libby's defense team in June 2006 -- stating that the CIA “declassified and now publicly acknowledges the previously classified fact that Ms. Wilson was a CIA employee from 1 January 2002 forward and the previously classified fact that she was a covert CIA employee during this period.” The “unclassified summary” established that she had headed a counterproliferation operation focused on Iraq and had traveled overseas in an undercover capacity in the five years prior to the disclosure of her identity. Moreover, the Post itself reported on March 17 that during Plame's testimony before the House Committee on Oversight and Government Reform, Rep. Henry A. Waxman (D-CA), the committee's chairman, read a statement that he said “was approved by Gen. Michael V. Hayden, the CIA's director.” The Post added: “The statement said that Plame worked in a covert capacity at the time of Novak's column and that her employment status was classified under an executive order.”

Reports that the CIA “acknowledged” Plame's covert status appeared after the March 7 editorial. The Post has since published one more editorial about Libby but has yet to address the misinformation in the March 7 editorial, including its claim about the lack of evidence at trial and its suggestion that Plame was not “in fact, covert” -- touted by the Judiciary Committee Republicans.

The March 7 Post editorial further claimed that “Mr. Novak's primary source was former deputy secretary of state Richard L. Armitage.” But as Waas noted in his book, during Libby's trial, former New York Times reporter Judith Miller testified on January 30 that Libby had disclosed Plame's CIA employment to her at a July 8, 2003, breakfast meeting at the St. Regis Hotel in Washington, D.C., well before Novak publicly revealed it in his July 14, 2003, column. Time magazine's Matthew Cooper, in his first-person account of his testimony before the grand jury in the leak investigation, identified White House senior adviser Karl Rove as his original source for Plame's identity and Libby as his corroborating source. As Media Matters has noted, there is no requirement that the identity of a covert agent actually have been published for there to have been an illegal leak under the IIPA.

During the hearing, which included testimony by Plame's husband, former ambassador Joseph C. Wilson IV, Rep. Mike Pence (R-IN) said: “I don't often quote The Washington Post, being kind of a cheerful right-wing conservative. Frankly, I don't often read The Washington Post.” Pence proceeded to quote at length from the editorial, including its distortions about Plame's status at the CIA at the time of the leak and Armitage's role in the leak. At one point Pence said to Wilson: “As The Washington Post pointed out in this same editorial, there was no evidence presented at trial that your wife was, in fact, a covert operative.” The editorial was also cited in the hearing by Republican Reps. Daniel E. Lungren (CA) and Rep. Chris Cannon (UT).

The only Post editorial about Libby since the March 7 editorial appeared on July 3 in response to Bush's decision to commute Libby's sentence. This editorial did not acknowledge or correct what has become misinformation in the March 7 editorial. As Media Matters has noted, the Post opinion pages have a history of attacking the prosecution in the Libby case -- both in editorials and on the op-ed pages.

From the March 7 Post editorial:

THE CONVICTION of I. Lewis Libby on charges of perjury, making false statements and obstruction of justice was grounded in strong evidence and what appeared to be careful deliberation by a jury. The former chief of staff to Vice President Cheney told the FBI and a grand jury that he had not leaked the identity of CIA employee Valerie Plame to journalists but rather had learned it from them. But abundant testimony at his trial showed that he had found out about Ms. Plame from official sources and was dedicated to discrediting her husband, former ambassador Joseph C. Wilson IV. Particularly for a senior government official, lying under oath is a serious offense. Mr. Libby's conviction should send a message to this and future administrations about the dangers of attempting to block official investigations.

The fall of this skilled and long-respected public servant is particularly sobering because it arose from a Washington scandal remarkable for its lack of substance. It was propelled not by actual wrongdoing but by inflated and frequently false claims, and by the aggressive and occasionally reckless response of senior Bush administration officials -- culminating in Mr. Libby's perjury.

Mr. Wilson was embraced by many because he was early in publicly charging that the Bush administration had “twisted,” if not invented, facts in making the case for war against Iraq. In conversations with journalists or in a July 6, 2003, op-ed, he claimed to have debunked evidence that Iraq was seeking uranium from Niger; suggested that he had been dispatched by Mr. Cheney to look into the matter; and alleged that his report had circulated at the highest levels of the administration.

A bipartisan investigation by the Senate intelligence committee subsequently established that all of these claims were false -- and that Mr. Wilson was recommended for the Niger trip by Ms. Plame, his wife. When this fact, along with Ms. Plame's name, was disclosed in a column by Robert D. Novak, Mr. Wilson advanced yet another sensational charge: that his wife was a covert CIA operative and that senior White House officials had orchestrated the leak of her name to destroy her career and thus punish Mr. Wilson.

The partisan furor over this allegation led to the appointment of special prosecutor Patrick J. Fitzgerald. Yet after two years of investigation, Mr. Fitzgerald charged no one with a crime for leaking Ms. Plame's name. In fact, he learned early on that Mr. Novak's primary source was former deputy secretary of state Richard L. Armitage, an unlikely tool of the White House. The trial has provided convincing evidence that there was no conspiracy to punish Mr. Wilson by leaking Ms. Plame's identity -- and no evidence that she was, in fact, covert.

It would have been sensible for Mr. Fitzgerald to end his investigation after learning about Mr. Armitage. Instead, like many Washington special prosecutors before him, he pressed on, pursuing every tangent in the case. In so doing he unnecessarily subjected numerous journalists to the ordeal of having to disclose confidential sources or face imprisonment. One, Judith Miller of the New York Times, lost several court appeals and spent 85 days in jail before agreeing to testify. The damage done to journalists' ability to obtain information from confidential government sources has yet to be measured.

Mr. Wilson's case has besmirched nearly everyone it touched. The former ambassador will be remembered as a blowhard. Mr. Cheney and Mr. Libby were overbearing in their zeal to rebut Mr. Wilson and careless in their handling of classified information. Mr. Libby's subsequent false statements were reprehensible. And Mr. Fitzgerald has shown again why handing a Washington political case to a federal special prosecutor is a prescription for excess.

Mr. Fitzgerald was, at least, right about one thing: The Wilson-Plame case, and Mr. Libby's conviction, tell us nothing about the war in Iraq.

From the July 11 hearing:

LUNGREN: Isn't it true that at the trial there were several CIA witnesses who testified that they didn't know that your wife's status was covert?

WILSON: That's possible. I did not review the testimony for that.

LUNGREN: The Washington Post said this: “Mr. Wilson was embraced by many because he was clearly, in publicly, charging that the Bush administration had twisted, if not invented facts, in making the case for war against Iraq.

In conversation with a journalist during a July 6, 2003, op-ed, he claimed to have debunked evidence that Iraq was seeking uranium from Niger, suggested that he had been dispatched by Mr. [Vice President Dick] Cheney to look into the matter, and alleged that his report had circulated at the highest levels of the administration.

The bipartisan investigation by the Senate Intelligence Committee subsequently established that all of these claims were false, and that Mr. Wilson was recommended for the trip by his wife.

Do you disagree with that?

WILSON: Profoundly, Congressman.

LUNGREN: Is The Washington Post part of the conspiracy against you and your wife?

WILSON: I haven't asserted that.

LUNGREN: Well, does that mean that reasonable people could differ with respect to conclusions that you have drawn?

WILSON: It means you can't always believe what you read in the press, sir.

[...]

WILSON: But let me just suggest, as I said in my article, that mine was one of several reports that were done at the time -- and subsequent testimony, all of which reached the same conclusions.

I also would just say once again for the record that the director of Central Intelligence and his deputy testified both to Congress and offered their recommendations and went to great lengths to try and remove this from any speech that the White House presented.

And indeed, The Washington Post also reported that in January of 2003, a couple of weeks before the State of the Union address, in response to a Pentagon question, the national intelligence officer circulated a memorandum to the government and the vice president, president, part of that government in which the NIO said, ” The allegations that Iraq sought uranium from Niger are baseless and should not be used."

LUNGREN: And that's from The Washington Post that you just --

WILSON: That was a Washington Post article.

LUNGREN: Which also said on March 7, 2007, “The trial has provided convincing evidence that there was no conspiracy to punish Mr. Wilson by leaking his wife's identity and no evidence that she was, in fact, covert.”

WILSON: And I would refer you again --

LUNGREN: The same --

WILSON: I would refer you --

LUNGREN: The same folks that you were referring to for your --

WILSON: I would refer you to Mr. Fitzgerald's statement that it's hard to see that there was not a conspiracy to defame, punish, or discredit -- seek to punish Ambassador Wilson.

REP. JOHN CONYERS (D-MI): The gentleman's time has expired.

[...]

CANNON: And I -- this committee, I think, should be fairly familiar with some of those prosecutions.

And in fact I just want to -- actually, I want to thank Mr. [Rep. Stephen I.] Cohen [D-TN] for making the point of brothers or relatives and cronies, which I take as a reference -- a bipartisan reference from this bipartisan committee to the fact that President Clinton gave some very questionable pardons.

First of all, Mr. Chairman, I'd like to ask unanimous consent to have included in the record a story from The Washington Post dated March 7, 2007, entitled “The Libby verdict” and the minority views from the Senate by Vice Chairman [Christopher] Bond [R-MO], and joined by Senators [Orrin] Hatch [R-UT] and [Richard] Burr [R-NC].

CONYERS: Without objection, so ordered.

CANNON: Thank you, Mr. Chairman.

Now, I have a love-hate relationship with The Washington Post. I hate it because it tends to be left. And I hate it because they're smart, and they tend to hurt the right when they go left.

On the other hand, the fact that they're smart makes them readable and interesting. And this article, I think, is profound because it punctures some balloons. I don't think -- there's no question about they're saying that Mr. Libby did something wrong. But they're trying to balance things when they say, they say relatively eloquently what they're trying to balance.

And what they're essentially saying is that we have a myth here. And that myth, Mr. Chairman, has been repeated by you and by Mr. [Rep. Jerry] Nadler [D-NY] and by Mr. [Rep. Robert] Wexler [D-FL] and by others on your side, and it goes to this nefarious activity of blaming or hurting or going after personally Mr. Wilson. And in the process of that, they lay out these myths that we've heard here today. And let me just go through those.

One is that, “Mr. Wilson was embraced by many because of his early publicly charging that the Bush administration had twisted, if not invented, facts in making the case for war against Iraq. In conversations with journalists, in his op-ed he claimed to have debunked evidence that Iraq was seeking uranium from Niger, suggesting that he had been dispatched by Mr. Cheney to look into the matter, and alleged that his report had circulated at the highest levels of the administration.”

And it goes on to say that -- essentially it concludes that what was established out of all this was that all these claims were false. In other words, the left Washington Post calls Mr. Wilson, who is here today, a liar. They're saying he's not true. He's not telling the truth about this.

He points out -- the article points out, the other myth that's here before us today, that somehow, as I recall I think it was referred to this as a slip of the tongue on the part of Mr. Libby or was it, rather, a nefarious scheme to out and to hurt Mr. Wilson?

Well, the article points out it was Richard Armitage and that the trial provided convincing evidence that there was no conspiracy to punish Mr. Wilson by leaking, here it says Ms. Plame's identity, but that was Mrs. Wilson's identity, and no evidence, in fact, that she was covert.

And then in conclusion the article says, “Mr. Wilson's case has besmirched nearly everyone it has touched. The former ambassador will be remembered as a blowhard. Mr. Cheney and Mr. Libby were overbearing in their zeal to rebut Mr. Wilson and careless in their handling of classified information. And Mr. Libby's false subsequent statements were reprehensible.

” And Mr. Fitzgerald has shown, again, why handling a Washington political case to a federal prosecutor is a prescription for excess."

And that's why we're talking about and why I think Mr. [Rep. Howard] Berman [D-CA] is suggesting we need to have a greater intervention by the president.

Now, Mr. Wilson, your wife has given inconsistent testimony to the Senate and the House. I take it in your zeal for getting the truth out, you would encourage her to come to the Committee on Oversight and Government Reform, which is evaluating that. I think there's a letter from the ranking member asking the chairman, Mr. Waxman, to review that.

I would take it that given your zeal for truth and getting it all out, you would encourage her to come and meet with staff of the minority and the majority and discuss these matters, would you not?

[...]

PENCE: Thank you, Chairman, and no apology necessary. Appreciate your calling this hearing and your characteristic decorum in conducting it.

I must confess this has been an interesting hearing. I think the four witnesses on this end of the table have contributed mightily to my understanding of this issue.

I am a bit mystified, I'd say respectfully to the committee leadership, to have Ambassador Wilson here, although I admire his panache at a certain level.

I don't often quote The Washington Post, being kind of a cheerful right wing conservative. Frankly, I don't often read The Washington Post. But there was an editorial entitled “The Libby Verdict: The Serious Consequences of a Pointless Washington Scandal” that was published in the wake of the verdict in the attendant case, 7 March 2007.

I think it bears on some of the discussion we've hard today. And, again, this is The Washington Post, not a world view I generally endorse, but it referred to this case as one, quote, “propelled not by actual wrongdoing, but by inflated and frequently false claims and by the aggressive and occasionally reckless response of senior Bush administration officials.”

I must say to you, respectfully, Ambassador Wilson, that your claims early in your testimony, and I've reviewed your written testimony, as well, that, again, asserting that your wife was covert when, as The Washington Post pointed out in this same editorial, there was no evidence presented at trial that your wife was, in fact, a covert operative.

The assertion that you made, again, before this committee of essentially a conspiracy to do violence to your reputation and your wife's reputation, again, I'm quoting The Washington Post that said, quote, “The trial has provided convincing evidence that there was no conspiracy to punish Mr. Wilson by leaking Ms. Plame's identity and,” they added, “no evidence that she was, in fact, covert,” closed quote.

You've made a number of extraordinary comments which are not -- they're not new allegations on your part. They've rather been reiterated frequently by you, which is your right as an American. You're certainly entitled to your own opinion. But I would argue you're not entitled to your own facts.

And, respectfully, Mr. Ambassador, the findings of this trial are supported by the editorial in The Washington Post that the trial had provided no convincing evidence that there was a conspiracy to punish you and no evidence that your wife was, in fact, covert.

I would also say that I've actually authored a federal media shield statute that I hope this committee will actually consider in mark-up this week, and it's about got some elements of the administration as annoyed at me as they have been with some of the people on this panel.

But it derives, interestingly, from this case, from me being appalled at the image of an American journalist being put behind bars for being forced to reveal who her source was in this case.

So this had a big impact on my life. You can imagine how more appalled I was when I found out that the prosecutor in this case, Mr. Fitzgerald, learned early on that Mr. Novak's primary source in this case was not Mr. Libby at all.

Let me quote again from The Washington Post, quote, “In fact, he learned early on that Mr. Novak's primary source was former deputy secretary of state, Richard L. Armitage,” an unlikely tool of the White House by reputation and career, that's my addition.

The Washington Post went on to say, “It would have been sensible for Mr. Fitzgerald to end his investigation after learning about Mr. Armitage.” Instead, like many special prosecutors, he pressed on and they added, “The damage done to journalists' ability to obtain information from confidential government sources has yet to be measured,” closed quote.

Now, I won't reiterate, because I don't believe in name-calling, even if I'm just quoting editorials, but I won't reiterate the name that they called the distinguished witness to this panel. Even as strongly as I feel about this issue, I thought it was out of line and uncalled for.

But I thought it was at least worth reflecting, Mr. Chairman, that even The Washington Post has a different version of this case than I think perhaps the most celebrated witness on this panel, that, in fact, his wife was not a covert operative, the court found, in effect, no evidence that she was covert, that the court provided convincing evidence there was no conspiracy to punish Mr. Wilson by leaking Ms. Plame's identity, and, in fact, Scooter Libby was not the primary source in this case at all.

None of which is to say that I excuse Scooter Libby for committing felony perjury. I certainly do not excuse President Clinton for having committed felony perjury. I just think that the contrast between President Clinton, who lost his law license for having committed felony perjury, compared to Scooter Libby facing two and a half years behind bars for having committed the same act before a grand jury empaneled by a special prosecutor suggested that, as the president observed, that the punishment did not entirely fit the crime.

So with that, I'll yield whatever remains of my time to the gentleman from California.