New analysis of pleadings filed by Fitzgerald has revealed that his investigation has been diverted towards the Niger document fraud.
Fitzgerald's District Court pleadings from June 2005 informed the court that the investigation was-- "for all practical purposes complete" -- back in "Fall 2004" except for the refusal of Cooper and Miller to cooperate.
Mark Kleiman is one of the few bloggers who mentioned the Espionage Act before I published my two part series on 18 USC 793 and 18 USC 794. So today, when I came across his October 23 2005 article, -- If you meet the Special Counsel on the Yellowcake Road, no-bill him. -- I was upset and confused by his allegation that Fitzgerald has no authority to investigate the Niger Document Fraud:
As against the GOP spin that he was appointed to look into violations of the Intelligence Identities Protection Act, he has the original letter giving him "all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity" and a second letter written shortly thereafter specifying that his authority extends to any criminal attempt to frustrate that investigation.
But note that none of the documents on the site gives Fitzgerald any authority over the wider question of who made up and peddled the Nigerien yellowcake story, or the still wider question about how the administration hyped the threat of an Iraqi nuclear weapons acquisition program as part of its sales pitch for the war.
Apparently Frank Rich suggested on Meet the Press today that the case might go in that direction. Ain't gonna happen. Surely if Fitzgerald were moving that way, he would have asked for authority to do so, and would have added that request and the response to it to his webpage.
In the same article he debunks the "IIPA is controlling" neocon talking point... while also squashing Fitzgerald's authority to investigate the Niger document fraud. He even links to Comey's delegation letters as proof of his assertion. Although I was confused, I felt that Kleiman is a blogger who is trying to call it by the rule of law without any spin. Still, he hasn't analyzed the second letter correctly.
Comey's first letter authorizes Fitzgerald as follows:
"I hereby delegate to you all of the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity..."
Kleiman discusses Comey's second letter to Fitzgerald, but he doesn't explain it properly. Kleiman wrote:
"...and a second letter written shortly thereafter specifying that his authority extends to any criminal attempt to frustrate that investigation."
That's not accurate. The first letter limited Fitzgerald's authority to the unauthorized disclosure of Plame's identity, but the second letter expands that authority more than Kleiman gives it credit for. From the letter:
At your request, I am writing to clarify that my December 30, 2003, delegation to you of "all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity" is plenary and includes the authority to investigate and prosecute violations of any federal criminal 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...
The key phrase is:
"any federal criminal laws related to the underlying alleged unauthorized disclosure"
Fitzgerald's authority extends to the violation of any federal criminal laws which are "related to the underlying...disclosure" of Plame and Brewster Jennings.
So how does the creation of the fraudulent Niger documents -- a clear violation of federal criminal law, certainly 18 USC 1001 among others -- fall under the investigation of the unauthorized exposure of Plame's identity?
The documents surfaced in October 2002. Novak's column outing Plame as a CIA employee was published on July 14, 2003. How could the Niger document fraud be relevant to Fitzgerald's investigation? Think hard about this.
FITZGERALD HAS NO AUTHORITY TO PROSECUTE ANYBODY FOR THE NIGER DOCUMENT FRAUD...
unless....
...it's "related" to the disclosure of Plame's identity or the exposure of Brewster Jennings.
But Fitzgerald IS looking into the Niger fraud.
Kleiman's article includes two updates at the bottom of the original text. The first reads:
Update A reader points me to this Josh Marshall post linking to a UPI story by Martin Walker reporting that "Fitzgerald's team of investigators has sought and obtained documentation on the forgeries from the Italian government" and inferring from that fact that "the CIA leak inquiry that threatens senior White House aides has now widened to include the forgery of documents on African uranium that started the investigation." Josh vouches for Walker's credibility, and I have no reason to doubt him.
But note that the inference doesn't follow from the fact, and is contradicted by Fitzgerald's terms of reference. Fitzgerald may well want to bring in the Yellowcake Road story to show motive for whatever crimes he charges, but the charges themselves will have to be limited to blowing Plame's cover and covering it up.
I don’t' agree with Kleiman here. The second Comey letter is pretty damn broad. If Fitzgerald can show that the creation of the fraudulent Niger documents -- or the use of them -- was related to the disclosure of Plame and Brewster Jennings, then Fitzgerald can prosecute the violation of any federal criminal laws involving the Niger documents.
I'll admit that Kleiman has a point about motive. If the exposure of Plame was done as motivation to bitch slap Joe Wilson, than the creation of the Niger documents -- which must have happened in late 2001 -- is barely related to the exposure of Plame and Brewster Jennings in July of 2003.
As much as I want to see the Niger fraud punished, I'm not sure Fitz can make it work on that basis. But if he's got something on them he should run with it and if it's powerful stuff the judges will give him a wide berth. And rightly so.
Now to the second update at Kleiman's blog:
Update Kevin Drum has a theory about the motivation for the outing of Valerie Plame Wilson, and that theory seems to fit the facts: the W.H.I.G. thought that Joseph Wilson had proof that the Yellowcake Road documents were forgeries before the 2003 State of the Union address." I still doubt that Fitzgerald has the authority to bring charges about the forgery, as opposed to the outing.
I disagree with both Kleiman and Drum. If the Bush syndicate thought Wilson had proof that the Niger documents were fraudulent and they outed Plame to intimidate him from speaking out, then I believe that would be sufficiently "related" to the disclosure of Plame's identity to allow Fitzgerald to prosecute. Kleiman is wrong.
But Wilson apparently isn't in possession of any other information other than what he reported in the Times Op Ed of July 6, 2003. He makes no such allegations and he's certainly not been shy about speaking up.
Furthermore, Drum's argument is a bit farfetched in that Wilson had already published his Op Ed -- spilling what he knew about the Niger deal on July 6, 2003. It's that same argument that keeps coming back, but makes no sense -- the Bush team bitch slapped Joe Wilson to get back at him.
If they were trying to intimidate Wilson... they were too late in doing the job. This don't fly. The motive isn't there for the Bush freaks to subject themselves to the ultimate terms of the Espionage Act -- life sentence or death sentence under 18 USC 794.
We know -- from Fitzgerald's 75 page brief -- filed with the Court of Appeals -- that Fitzgerald was interested in the Niger documents and Wilson's trip to Niger. From the Fitz brief:
[page 15]
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.
[page 19]
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;
[page 73]
Specifically, the information sought is focused on testimony and documents related to communications occurring during a limited time period, which specifically concern former Ambassador Joseph Wilson; the 2002 trip by former Ambassador Wilson to Niger; Valerie Plame Wilson; or Iraqi efforts to obtain uranium. Given the limited scope of the information sought by the subpoenas and the general nature of the investigation, it is obvious that there is a real possibility that the information sought will be relevant and of substantial importance to the investigation, as required by § 50.10(f).
The key phrase in that passage is "of Iraqi efforts to obtain Uranium". It's interesting that Fitz lists Wilson's trip to Niger and Iraqi efforts to obtain Uranium as separate subjects of inquiry.
We also know that when the Court of Appeals decided against Cooper and Miller the court's 83 page opinion contained eight redacted pages of evidence provided to the court by Fitzgerald. Judge Tatel stated:
Were the leak at issue in this case less harmful to national security or more vital to public debate, or had the special counsel failed to demonstrate the grand jury’s need for the reporters’ evidence, I might have supported the motion to quash.
[Please see the previous CS article, Treasongate:Special Counsel's Showing Decides The Case"]
Also, let me throw in a comment directly from Fitzgerald taken from page 44 of the pleadings filed with the Court of Appeals:
If anything, the public’s interest is heightened in this case, because the crimes being investigated have national security implications, and the subjects of the investigation are government officials with access to sensitive government information.
It's very possible that Fitzgerald first looked into the Niger trip while developing motive for retaliation against Wilson. The pleadings certainly indicate that he was investigating that theory. From page 45:
Cooper and Time are being asked to identify a confidential source, given the nature of the relevant communications – namely, the alleged disclosure of sensitive government information for the purpose of political advantage or retaliation against a critic of the administration...
But I've stumbled onto something in Fitzgerald's District Court pleadings which I haven't seen mentioned elsewhere:
Fitzgerald filed the "GOVERNMENT'S MEMORANDUM IN OPPOSITION TO JOINT MOTION FOR SCHEDULING CONFERENCE" with the US District Court in June 2005. And this memo cryptically implied that his investigation -- except for receiving the testimony of Cooper and Miller -- had been completed in "Fall 2004". From page 8:
The Special Counsel seeks to bring the ongoing investigation, which he began in December 2003, to as swift a conclusion as possible. By fall 2004, the Special Counsel's investigation was for all practical purposes complete except for the testimony of petitioners. (Emphasis added.)
Now consider that Fitzgerald has very recently requested the official dossier on the Niger forgeries from Italian authorities. From UPI:
NATO sources have confirmed to United Press International that Fitzgerald's team of investigators has sought and obtained documentation on the forgeries from the Italian government.
Fitzgerald's team has been given the full, and as yet unpublished report of the Italian parliamentary inquiry into the affair, which started when an Italian journalist obtained documents that appeared to show officials of the government of Niger helping to supply the Iraqi regime of Saddam Hussein with Yellowcake uranium.
What theory of the case sufficiently relates the unauthorized disclosure of Plame's identity to the Niger fraud under Comey's specific delegation of authority?
[ANSWERED BY READER BRIAN SIPE: By outing Plame, the Bush Administration was trying to cover its tracks regarding the fake Niger documents and other bogus Iraq WMD intel that it foisted on Congress and the public. Therefore, the Plame outing was a crime that DIRECTLY RESULTED from previous high crimes. They are NOT unrelated incidents. They are part of the same CRIMINAL CONSPIRACY by the Bush Administration to lead America to war under false pretenses, which was an act of HIGH TREASON.
Therefore, Fitzgerald can act under his plenary authority to unravel the entire conspiracy of "related" crimes, which he seems to be doing...The crimes flowed in an unbroken chain. They are part of the same broad criminal conspiracy by the Bush Administration to lie to the public regarding the non-existent Iraqi WMD's ...
The Bush Administration tried to disguise its original treason by compounding it by outing a CIA employee... That's the "theory of the case" that allows Fitzgerald to go after the Niger document forgers.Brian Sipe 10.27.05 - 6:28 pm # ]
It wasn't Wilson who was getting close too exposing the villains of the Niger document fraud, but it might have been PLAME and her cohorts in BREWSTER JENNINGS.
Under this scenario, if the Bush syndicate had created the forgeries, pushed them into the world and used them to defraud Congress, the military and the people, then outing Plame and Brewster Jennings to stop the spooks from fingering them -- for lying about the grounds to go to war -- would certainly be sufficiently related under the terms of Fitzgerald's authority.
If you really think about, it's one of the most plausible scenarios which would allow Fitzgerald to aggressively investigate the Niger fraud. If this was the case, there's two possible conclusions:
- Plame was outed because she was getting too close to fingering the Niger document conspiracy making her and Wilson genuine victims of espionage.
OR
- Plame outed the spooks getting close to the Niger documents to protect the Bush syndicate. Then they fabricated the outing of Plame to cover her ass -- making her and Wilson guilty of espionage.
Those are the only two scenarios I can imagine that would allow Fitzgerald -- under the specific powers delegated to him -- to aggressively prosecute those involved with creating and using the fraudulent Niger documents. There may be other scenarios, but I haven't thought of them yet.
If Plame was not guilty of espionage, and was a true victim in this, the facts would be different. Wilson's book would be different. His testimony before the Senate would have been different and Plame would have been forced to come forward and tell her story.
Furthermore, if Plame was truly a "victim" of this conspiracy, then her husband would be demanding prosecutions under the Espionage Act instead of being the main cheerleader for the applicability of the IIPA.
And why didn't Joe Wilson write his Op Ed before the soldiers were shipped off to the slaughter?
Think about the support he's garnered by speaking out against Bush's war. Had he stepped up to the plate before our soldiers were killed, before the war began, the war might never have been authorized and funded. In the face of Wilsons's allegations, Congress could not have approved the war resolution. All of the antiwar sentiment he's drummed up now would have been an extremely potent remedy to the solution of war.
He waited until the war began. 2000 soldiers later he wants to be a hero.
Something is rotten in the house of Wilson.
by Citizen Spook
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