Prosecuter does not think it material whether or not Plame was covered by act

Byron York:

CIA leak prosecutor Patrick Fitzgerald argued at a hearing Friday that, as far as the perjury charges against former Cheney chief of staff Lewis Libby are concerned, it does not matter whether or not Valerie Wilson was a covert CIA agent when she was mentioned in the famous Robert Novak column of July 14, 2003. "We're trying a perjury case," Fitzgerald told Judge Reggie Walton. Even if Plame had never worked for the CIA at all, Fitzgerald continued — even if she had been simply mistaken for a CIA agent — the charges against Libby would still stand. In addition, Fitzgerald said, he does not intend to offer "any proof of actual damage" caused by the disclosure of Wilson's identity.

Fitzgerald's comments mark the evolution of the CIA leak case from a matter in which Fitzgerald investigated allegations that members of the Bush administration outed covert agent Wilson as part of a plot to discredit her husband, Joseph Wilson — an alleged act about which Fitzgerald once said, "the damage wasn't to one person. It wasn't just Valerie Wilson. It was done to all of us" — into a case in which Valerie Wilson's job status and any damage done by the disclosure of her identity have become irrelevant, at least in Fitzgerald's view.

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Then came the question of Valerie Wilson's status at the CIA and the damage, if any, done by the disclosure of her identity. For months now, Fitzgerald has resisted turning over any documents that might show that Wilson's status was classified, or any assessment of the damage resulting from disclosure. At times, Fitzgerald has argued that he did not have the documents, that the documents were none of Libby's business, that the documents were irrelevant to the charges against Libby, and that he did not have any documents to show that Wilson's status was not classified, so that therefore Libby should assume that it was. Finally, in court Friday, Fitzgerald argued that it just does matter one way or the other.

"Does the government intend to introduce any evidence of damage or her status?" Walton asked.

"We don't intend to offer any proof of actual damage," Fitzgerald responded, adding that he would have more to say on the subject this week in a sealed filing with the court.

Libby attorney Ted Wells objected. At trial, Wells said, Fitzgerald will likely tell the jury that the CIA leak was a bad thing; even if Fitzgerald has no proof of damage, he is sure to tell the jury that the leak could have caused grave damage. Just look in the indictment, Wells pointed out, reading a passage which said:

The responsibilities of certain CIA employees required that their association with the CIA be kept secret; as a result, the fact that these individuals were employed by the CIA was classified. Disclosure of the fact that such individuals were employed by the CIA had the potential to damage the national security in ways that ranged from preventing the future use of those individuals in a covert capacity, to compromising intelligence-gathering methods and operations, and endangering the safety of CIA employees and those who dealt with them.

Judge Walton interrupted. Yes, that's what's in the indictment, the judge said, but he might not allow it to be discussed during the trial. "Just because it's alleged in the indictment doesn't necessarily make it admissible," the judge said.

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In the end, the judge decided to put off a ruling on the issue until after Fitzgerald files his sealed document, and after Libby's lawyers have a chance to respond to it. What Walton will ultimately decide is unclear. But it is clear what Fitzgerald wants: a CIA leak trial in which the defense is forbidden from learning some critical facts about the CIA leak.

This is absolutely extroidinary. Her her status is not material, why would a mistatment relating to how it was disclosed be material?