Here is Fitzgerald’s submission to the US Supreme Court regarding his need to enforce subpoena’s on Judith Miller and Mark Cooper, even though he knew at the time Richard Armitage was the source of the leak to Bob Novak and that Libby and Rove were nothing more than weak confirmations(the CIA was a strong confirming source for Novak). Let’s see how it reads in light of the latest news regarding Armitage – and other details. First the background:

In the oped
piece, Wilson asserted that he had taken a trip to Niger in 2002 at the request of the Central Intelligence Agency (CIA) to investigate a report that Iraq had sought or obtained uranium from Niger, and that he had reported to the CIA upon his return his conclusion that it was “highly doubtful that any such transaction had ever taken place.” Id. at 183a-184a. Wilson asserted that “some of the intelligence related to Iraq’s nuclear weapons program was twisted to exaggerate the Iraqi threat.”

All emphasis mine. Actually, Fitzgerald and we all know Wilson claimed he was sent by the Administration, Cheney. For man who wants accuracy and details, Fitz starts off very sloppily.

Eight days later, on July 14, 2003, syndicated columnist
Robert Novak published a column in the Chicago Sun-Times in which he asserted that “two senior administration officials” told him that Wilson had been selected for the Niger trip at the suggestion of Wilson’s wife, whom Novak described as a CIA “operative on weapons of mass destruction.” Miller Pet. App. 188a189a.

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.

…

In the fall of 2003, the government began an investigation
into whether federal law had been violated in connection with the unauthorized disclosure by government employees of information concerning the identity of a purported CIA employee.

…

During the period January through May 2004, the grand jury conducted an extensive investigation. Miller Pet. App. 5a. Beginning in May 2004, it was determined that it was necessary to obtain testimony and documents from a limited number of reporters, including Matthew Cooper of Time Inc. (Time), and Judith Miller of the New York Times, in connection with the investigation.

Up until this point Fitzgerald is insinuating he is investigating who lleaked to Novak and ‘other reporters’. But he knew already who leaked and he had testimony in hand that showed Libby and Rove as weak confirmation sources who responded to questions by reporters, not who initiated the topic. But does he relay that to the Supreme Court Justices? No – he hides it. He claims hints the subpoenas on to find out who these reporters talked to about Valerie Wilson

On September 13, 2004, the grand jury issued a second set of subpoenas to Cooper and Time seeking testimony and documents relating to “conversations between Matthew 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.” Miller Pet. App. 5a-6a.

But this could not be about who discussed Valerie because he knew Armitage was the source of the leak. Why did he hide the fact that he knew the source of the Novak leak from the Supreme Court? Fitzgerald goes on to great lengths to discuss the fact reporters have no right to hide potential criminal acts, but at this stage Fitz knew he had NO POTENTIAL CRIMINAL ACTS. All the argument about being forced to testify fall apart if there is no crime being investigated, just hunting expidition. Prosecutors can’t fish for evidence either. And Fitzgerald knows this and points it out in his arguments:

It is the gov-ernment’s position, as stated in the court of appeals (Gov’t C.A. Br. 33-41), that no federal common law re-porter’s privilege should be recognized in the context of a good faith grand jury investigation.

But this was NOT a good faith grand jury investigation. Fitzgerald never once admitted that the person who leaked was known, why he leaked, his motives and his legal standing (no crime) was all known by now. Is that good faith? Well, let’s check this out:

The court then analyzed the evidentiary submissions of the Special Counsel, and, applying the assumed qualified privilege to the facts, unanimously concluded that the privilege had been overcome. Indeed, the court concluded that the government’s affidavits and exhibits overcame even the special version of the privilege for “leak” cases favored by Judge Tatel, which required not only showings of the essentiality of the evidence sought and the exhaustion of alternative sources, but the court’s balancing of “the public interest in compelling disclosure, measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information’s value.” Miller Pet. App. 58a.

I am going to go out on a limb here (not a very shakey one I bet) and guess Fitzgerald did NOT include the fact that he knew who leaked to Novak, which was the incident being investigated. I will also bet you these judges, upon review of their decision and the evidence, would ADMIT they would have ruled against Fitzgerald if they knew he had Fitzgerald’s admission as the prime leaker. Trust me on this and I will check with my legal sources, but since Fitzgerald had an admission from Armitage, he had no probable cause to rake the reporters over the subpoena coals.

The portion of Judge Tatel’s opinion joined by the entire panel “carefully scrutinized [the Special Counsel’s] voluminous classified filings” and concluded that he had “met his burden of demonstrating that the information is both critical and unobtainable from any other source.”

Addendum: OK, I think Fitz may be in serious trouble given the news about Armitage (and Woodward and possibly Armitage as Miller’s mystery source) given what he wrote in his USSC submission:

At the end of its opinion in Branzburg, the Court noted that “news gathering is not without its First Amendment protections.” 408 U.S. at 707. The Court stated that, in cases where grand jury investigations are being conducted in bad faith, without legitimate law enforcement purposes, or to harass the press or disrupt relationships with news sources, a court would be authorized to grant a motion to quash on First Amendment grounds. Ibid.9

Was there any legitimate law enforcement purpose in Fitzgerald’s efforts after he learned who leaked Valerie’s identity to the media? Since the CIA and Rove both provided confirmation to Armitage’s leak to Novak (and Rove’s was definitely the weaker of the two), was it not clear the leak was not illegal (the CIA confirmation destroys any claims otherwise)? Fitzgerald kept wrapping himself in the guise of trying to find the leaker – but he knew! He knew and had decided not to prosecute. So therefore Fitz was bluffing the process.

Then there is this blatant lie

The Special Counsel seeks to bring the ongoing investigation, which he began in December 2003, to as swift a conclusion as possible.

There is no way anyone can believe this line with what we know now. None. I still say Fitzgerald needs to be investigated – and we shall see how well his memory holds up under cross.