Why does Novak walk?

July 18, 2005 7:57 AM

Maybe I'm an idiot, but I'm confused: How is it possible, that when Robert Novak wrote the first article outing Valerie Plame, that it's not him, but those 2 other reporters who get threatened with jail time. Can someone explain it to me in more specific terms than a conspiracy theory?
posted by asavage to law & government (25 answers total)

From what I understand, he made a deal in exchange for his grand-jury testimony.
posted by MrMoonPie at 8:08 AM on July 18, 2005

and Cooper eventually agreed to testify, once his source gave him the go ahead.
posted by hellbient at 8:11 AM on July 18, 2005

Until the transcripts of the testimony are released to the public, I suspect that any answer would be pure speculation.
posted by clearlynuts at 8:22 AM on July 18, 2005

Public Might Never See Results of CIA Leak Probe
posted by mlis at 9:02 AM on July 18, 2005

...piggybacking...

The thing I don't get is how Joe Wilson being married to a CIA operative is supposed to discredit him. Was this outing motivated entirely by spite or am I missing some way Rove could spin Valerie Plume's employment to his advantage?
posted by rdr at 9:02 AM on July 18, 2005

Few people are arguing that Novak's publication of the information constituted a crime. He's got the First Amendment on his side, to begin with; in the United States, we generally do not jail journalists for writing things. Plus, it's only a crime for someone with "authorized access" to the agent's covert identity to reveal it. The statute was intended to punish government insiders who share secrets, not the journalists who hear those secrets.
posted by profwhat at 9:05 AM on July 18, 2005

"Novak appears to have made some kind of arrangement with the special prosecutor" (Newsweek, July 2005)
posted by gentle at 9:13 AM on July 18, 2005

Miller and Cooper were threatened with jail time not for what they wrote (or, in Cooper's case, didn't write), but for obstruction of justice- not necessarily that charge specifically, but for basically withholding information regarding a criminal investigation.

rdr- The spin put forth was that the trip wasn't some objective fact-finding mission, but a partisan campaign railroaded through by a CIA faction opposed to the administration.
posted by mkultra at 9:18 AM on July 18, 2005

rdr, I think the actual purpose was not to discredit Joe Wilson, but rather to punish him by putting his wife's life in jeopardy, as well as the lives of all those connected with her.

This sends a clear message to others that are in Wilson's position. That is, those who have access to information that is not favorable to the administration, and are willing to publish said information, would now likely think twice about it in order to ensure their own safety and the safety of those around them (family, friends, co-workers, etc.).

So, it serves to both punish Wilson as well as threaten any others with Wilson's potential.

Of course, now the talking points focus on discrediting Wilson altogether, and some of these details are being re-used to support that effort, even though that was not their initial purpose.
posted by odinsdream at 9:20 AM on July 18, 2005

rdr - What mkulta said, plus a classic case of portraying a man as a sort of milksop, they did this with Clinton and Kerry as well. It's a strategy where you make it seem like *gasp* your wife has undue influence over your professional activities, which might seem unseemly but is most likely not uncommon( although not in the "puppetmastery" way they spin it. And in this case it's all apparently untrue, his wife doesn't seemed to have used her CIA pull to get his the job.
posted by mrs.pants at 9:29 AM on July 18, 2005

wow, i type lousy.
posted by mrs.pants at 9:30 AM on July 18, 2005

Novak co-operated with prosecutors

P.S: That was another classic episode last night, Adam!
posted by riffola at 10:25 AM on July 18, 2005

OK, nothing new in this post, just trying to strengthen some lines drawn by others:

asavage, I believe the main focus of the special prosecutor has always been to find whoever did have "authorized access" to Plame's identity and did disclose it illegally. The people to whom it was disclosed were a number of journalists, Novak, Cooper, and Miller included. Thus, these journalists have information material to the investigation, and so they were subpoena'd to testify by the grand jury (I don't know that for sure, they may have testified "voluntarily" when it became clear that a subpoena would issue if they didn't. The effect is much the same either way). From the same Newsweek article linked above (by gentle), "Initially, Fitzgerald's focus was on Novak's sourcing, since Novak was the first to out Plame."

So, if anyone with such material knowledge refused to testify, including Novak, he/she would have been held in contempt of court and thus imprisoned. It's at this point that the journalists' privilege is usually brought up, and the debate begins about whether this is an appropriate situation in which to break that privilege, etc. Obviously, reasonable people can differ on that point. But, again as the Newsweek article says, "Novak appears to have made some kind of arrangement with the special prosecutor". Since grand jury procedings are sealed, we likely won't know what that deal was unless Novak voluntarily comes out with it. I myself won't be holding my breath for that one.

rdr, all the important points about "why would Rove (et al) attempt to discredit Wilson by outing his wife" are laid out above, but just to connect. Wilson was sent to Niger at the behest of *someone* in the CIA (Wilson implies the request came indirectly from Cheney's office, Rove et al claim it came from Wilson's wife). A couple of things are unclear, to me, from the rhetoric at this point: first of all, why a trip to Niger would be considered such a prize; it's a desperately poor country and not at all a tourist attaction, and Wilson was not paid in any other way besides free travel. Secondly, regardless of whether Mrs. Wilson put Joe's name up on the board for this assignment, it's not like she had the hiring-and-firing authority, so someone else higher up the chain must have thought he was OK for the job, so it doesn't seem like such a big freakin' deal if she initially suggested him or not.

Anyway, apparently he came to the conclusion that there was no Uranium deal between Iraq and Niger (though evidence suggests someone - Iran or Iraq, depending on whether you believe the initial WaPo article or its itty-bitty correction some time later) - made overtures, to which Niger did not respond. Now, ostensibly the Bush administration didn't like that news because it wanted to "fix the facts around the policy" of going to war in Iraq, so they felt the need to discredit Wilson.

On the surface, the story that "Wilson was only sent because his wife suggested him" discredits him because it makes it appear that he was unqualified and therefore his opinion should be discounted. And since he later came out against the war, Rove et al can now imply that it was some kind of huge partisan scam all along (though Wilson made no such public statement until 8 months or so after his trip, so that couldn't have been the explicit suggestion at the time he talked to Novak, Cooper, and Miller). The subtext of the whole affair, however, is that "if you mess with the Bush administration, it will come back to bite you in the ass," since if you think about it, Wilson's wife's career was totally ruined by this. Of course, we can never know if any other operatives (or their relatives) were planning to come out with info and were scared off by this tactic, but it's not a huge stretch to think that they were.

But that's about as far into the "conspiracy" stuff as I would get: the idea that Rove's diclosure (confirmation, whatever) of Plame's identity was expressly meant to make Wilson look like a bafoon, and implicitly meant to threaten future critics of the administration.
posted by rkent at 11:16 AM on July 18, 2005

The point about his wife is actually pertinent, even if it's meant to be discrediting. From what I understand, it goes like this:

The White House hears that Niger might be trying to sell Uranium to Saddam. They hear this from the British.

Plame works for the CIA, in the department set out to prevent WMD proliferation. So the Niger-Uranium story is in her bailiwick. They are to investigate.

Her department need someone to go there and check it out.

One of the people they send is Plame's husband - Wilson. Why? Because he'd been Ambassador to Niger. He was deeply deeply qualified. That he was married to Plame is irrelevant - he'd have been sent anyway - but it does make for an easier decision for the CIA. "Who do we know who knows Niger? Ah, my husband."

Despite the fact he is leaving his wife and young child at home, Wilson goes to Niger, and finds no proof at all. He reports this. The CIA concur.

Bush makes his state of the union address, and makes the claim. Wilson, now a private citizen again, knows it's bullshit - he wrote the report on the matter after all - and writes the editorial saying so.

Enter Rove...
posted by DangerIsMyMiddleName at 11:31 AM on July 18, 2005

One of the people they send is Plame's husband - Wilson. Why? Because he'd been Ambassador to Niger. He was deeply deeply qualified. That he was married to Plame is irrelevant - he'd have been sent anyway - but it does make for an easier decision for the CIA. "Who do we know who knows Niger? Ah, my husband."

But we have absolutely no proof that she was in any way involved in that decision at all, do we? Wouldn't it be far more likely that it was higher up in the CIA, or even in Cheney's office, or someone in the State Department, where Wilson was very well-known and respected up to that time?
posted by amberglow at 12:10 PM on July 18, 2005

Quite probably, yes. Or maybe Plame was quite high up in the WMD department. Not really for us to know.

When we can know is that it's doubly dodgy from Rove to push the milksop idea when Wilson was the best man for the job. It's incredibly insulting to Wilson, that he's only being sent because his wife says so, and it's insulting to Plame because her professional judgement is being called into question in the accusation that she sent him only because he's her husband. Or even that, hell, she's a woman, and so she can't be all that important.

All in all, what seems to be a sensible bit of intelligence work royally buggered by a mix of politics and misogyny. If this was a proper war, they'd have shot him by now.


*Mustn't turn an Ask.mefi thread into a mefi thread*
posted by DangerIsMyMiddleName at 12:21 PM on July 18, 2005

It doesn't help matters that the pro-Rove spin varies between the idea that dislosing her identity wasn't any more damaging than disclosing the identity of a clerk at Home Depot and the idea that she personally authorized the trip. Sometimes she's important, sometimes she's not, depending on what the spin is.
posted by kirkaracha at 12:30 PM on July 18, 2005

No journalist would actually be liable under the provision of the law that Rove might be charged with. The harshest provisions of that law, sections 421a and b of the Intelligence Identities Protection Act, apply only to government employees with authorized access to confidential information -- by definition, not journalists. The third, least harsh, provision (421c) could possibly apply to journalists, but only if they were purposefully working to expose agents in with the knowlege that this would harm United States interests. They way I read 421c, a journalist would have to have as her primary purpose injuring US interests. So I think it would be hard for any journalist to be charged under this law. (Note, though, that 421a and b do NOT require that the government official's primary purpose be hurting US national security -- that's where they're gonna get Rove.)

In fact, the legislative history of the law makes very clear that outing a CIA agent in the course of legitimate reporting is not a violation: "The standard adopted in section [421(c)] applies criminal penalties only in very limited circumstances to deter those who make it their business to ferret out and publish the identities of agents. At the same time, it does not affect the First Amendment rights of those who disclose the identities of agents as an integral part of another enterprise such as news media reporting of intelligence failures or abuses, academic studies of U.S. government policies and programs..."
H. Conf. Rep. 97-580, at 7-8; reprinted in 1982 U.S.C.C.A.N., at 171-72. (quoted here - PDF.)

On the other hand, journalists can be jailed for contempt for refusing to testify before a grand jury -- this is entirely separate from the prosecution for the leak itself. Miller refused to testify, so she's in contempt; Novak cooperated, so he's free. As some point, jailing journalists in this way runs afoul of the First Amendment, but I'm not sure where.
posted by footnote at 12:58 PM on July 18, 2005

By the way, Cooper didn't get a "go ahead" from Rove. Cooper weaseled his way into giving testimony so that he didn't go to jail. That whole press conference where he announced that his source (Rove) had called to give him permission to testify was an utter sham.

What really happened is that a long time ago at the start of the investigation, Rove (and everyone else in the WH) was pressured by the special prosecutor to sign blanket waiver allowing reporters to report anything he said. Now, until Cooper panicked and flipped, the reporters had considered that waiver to be null and void since it was signed under duress.

Cooper simply got scared and decided that the waiver was all he needed. He asked Rove's lawyer if that waiver was still in effect. Of course the lawyer said "yes"... what else could he say? So Cooper wimped out and testified.

Now, I'm glad Cooper testified. I wish Miller would testify. But Cooper was completely disingenuous in a "cover my ass publicly" kind of way. He rolled over and spilled the beans under pressure.
posted by Justinian at 12:58 PM on July 18, 2005

Oops, sorry -- here's the PDF with the Intelligence Identies Act legislative history.
posted by footnote at 1:02 PM on July 18, 2005

*Mustn't turn an Ask.mefi thread into a mefi thread*

When my kitten ate a few tons of yellowcake uranium from Niger she shed some fur and glowed in the dark, but after two weeks she was better. Don't worry. Kittens are tough!
posted by zaelic at 1:32 PM on July 18, 2005

FWIW, the allegation that it was Wilson's wife who was responsible for arranging his trip to Niger apparently comes from a [then-classified] State Department memo. Wilson, Plame & the CIA have all denied this allegation. This memo was in the hands of administration officials while aboard Air Force One during Powell's trip to Africa, about a week before Novak's column. [Who was on the plane? Bush, Cheney, Libby, Rove, Fleischer, Powell and others.] This memo is likely the reason that phone records from Air Force One during that trip have been subpoenaed. The fact that someone told journalists that Wilson's wife arranged the trip indicates that the leaker was someone with access to this classified memo.
posted by ijoshua at 2:16 PM on July 18, 2005

Warning: Plame Affair geek speaking. (My analysis from the beginning of 2004 that Josh Marshall cited but disagreed with is turning out to be correct, we'll see if Josh acknowledges this, but I've been corresponding with some other people in the press about it, too.)

Anyway, it's still the case that no one has denied that Plame was involved in the CIA analysis of the Niger intelligence. Therefore, while the very specific claim that Plame herself arranged for Wilson's trip is probably untrue given that the CIA has denied this; it's still the case that Plame was involved. That means that it still could be someone other than access to that memo that was the leaker. However, I think it's become obvious that the most likely source of the information for the leaker was the State memo.

Oh, this was answered above, but the reason Novak wasn't jailed was because he did testify to the grand jury and disclosed his sources, while Miller did not. Cooper wasn't going to testify, but in the end felt he had clearance from Rove to do so (which may or may not be the case). Miller is in jail, Cooper and Novak are not. No mystery there.

The key bit of information I've been trying to discover is exactly how Plame was referred to in the State Dept. memo. We know that she wasn't identified as "Valerie Plame", but as "Valerie Wilson", so somewhere there was another source of information that revealed her maiden name. But what's most important is how that memo referred to her: as an analyst or as an operative or as a covert operative (but there's no such thing as a non-covert operative). Assuming that Rove and probably Libby got their info from that memo, how her status with the CIA was described will be the deciding factor regarding the disclosure law in question.

I've asserted all along that as evil as this administration is, it's unlikely that the leakers knowingly leaked her status as a covert agent. Because we know for certain that she was involved in the analysis of the Niger intel (which, by the way, happened at the request of the office of the VP--which is where Cheney's involvement in the analysis and Wilson's trip came in, but very probably not personally, only staff), and we know that since her marriage to Wilson she had been acting as an analyst, then there's good reason to suspect that a number of people in the White House may have been familiar with her as Wilson's wife and as an analyst, even if she was still covert. Whether or not they thought Plame was directly involved in the decision to send her husband to Africa, she was involved and given their deep dislike of the CIA, smearing Wilson with this accusation of neopotism killed two birds with one stone.

We also know that Novak had a high-level source in the CIA who he contacted to comfirm what he was told by the leaker (who we now know was Rove, though we don't know exactly what was said--Novak and Rove dispute this). Novak has said that he was asked not to go to press with his information and the reason was clear that it was became Plame was covert. Novak used the word "operative" and his past use of the word makes it clear he knew exactly what he meant, despite his claims to the contrary (when this all blew up). Therefore, whether or not the original leaker(s) knew Plame was covert, at some point Novak was quite aware of it.

My theory has been that the disclosure of Plame (as Plame) and that she was covert happened either from someone in the White House after the original leak was made (because someone there almost certainly did know who she really was) and that bubbled out of the gossip pool as everything heated up (and at that point all the White House people, Cheney and his staff, Rove, everyone knew she was covert), and/or that when Novak and others contacted the CIA to confirm the story her status as covert was revealed. Stop and consider the position that anyone at the CIA was put in when press contacted them about Valerie Wilson and her involvement in the analysis of the Niger intel: it'd be very hard for them not to disclose her covert status merely because their options then would be very limited and they'd be forced to act other than they would were she only an analyst.

Once an investigation was begun, we know (because this is what made Fitzgerald the most suspicious) that there was a lot of communication between Novak and the White House. Eventually, there was a grand jury.

I don't think anyone is going to get prosecuted for the violation of the "disclosure of a covert agent" law because I don't think that it very explicitly happened and, anyway, the issue is too murky to be settled definitively.

However, I think that the grand jury interest in this now has everything to do with two likely possibilities: conspiracy and perjury, which Rove and others may be guilty for--provably guilty. Rove et al probably conspired with Novak and others to "adjust" their stories about the leak to investigators, and also probably lied in their own testimonies. This is where the action will be.

Again, we really need to know exactly what that State memo said about Plame. That will answer some very important questions. But don't get your hopes up that Rove will be prosecuted for violating the disclosure law.
posted by Ethereal Bligh at 3:53 PM on July 18, 2005

Ethereal Bligh, you are not a Plame affair geek; you are a Plame affair guru.

Thank you for explaining all of this so succinctly.
posted by leftcoastbob at 4:41 PM on July 18, 2005

More (copied from my post here):

"If Plame wasn't covert, then why did Rove and his co-conspirators bother to 'out' her a total of 11 times?"

Because what they thought they were doing was outing the nepotism of the choice of sending Wilson to Africa--doing so would have the dual-benefit of casting doubt on Wilson's story and cast doubt on the Niger intel group which sent him there (and had concluded that the Niger intel was likely bogus). Of course it's possible that Rove et al knew she was covert, but there's nothing we know as of yet that requires that they know she was covert. Neither their smear campaign nor Novak's obvious knowledge that Plame was covert.

"If the CIA says she’s covert, I assume she’s covert. But I have to say, I don’t really understand how someone can be undercover and go to work at CIA headquarters every day. As I understand it Plame didn’t even claim to be a federal employee of any kind. Can someone explain?"

She was clearly making the transition to analyst as the necessary consequence of her marrying a notable ex-diplomat and having a child. Her time working as an analyst corresponds to her marriage and subseuent pregancy.

Her former duties were as a covert operative specializing in WMD proliferation intelligence based in central Europe, which was pursued via a cover that had her as an executive of a CIA shell company that would allow her the necessary travel and contacts.

It must be possible to transition from operative to analyst if for no other reason than many operatives will make excellent analysts at a later point in their careers. But in doing so it would be required that their covert operative status be maintained for some length of time so as not to blow the cover of everyone and everything connected with the past covert work. In time, the other intelligence services will ferret out that information anyway, or it will become very stale, and it will no longer be a major concern. If that can't happen--their cover is too important and sensitive to be blown over, say, decades--then something other than what Plame did would have to be done.

Plame's drive to Langley every day, if in fact she did drive to Langley every day, is not the biggest risk to her cover. The fact that she was involved with CIA group analysis at the request of the VP's White House staff, and her name is associated with it (even if classified), is probably a bigger risk. And of course she was a public figure as Wilson's wife. So there's no denying that as a practical matter Plame's covert status was implicitly mild. But I don't see a provision in the law for "not maximum harm resulting from covert status disclosure". It really doesn't matter how much damage resulted from the leak of her identity, the matter in general is so serious that the law is so important that any breach should be punished. That the Bush admin would claim otherwise is an astonishing display of moral relativism from a group that routinely derides such relativism.

"Why would the CIA send Wilson to Africa?"

Because they were certain enough of the unreliability of the information that it wasn't necessary to mount a full-scale intelligence effort to investigate it. Wilson had been ambassador to two countries in the region, had numerous contacts, and was well capable of doing non-covert regional research to add some more veracity to the group's conclusion. Which he did.

It seems to me that there's little doubt that Plame's involvement with the group must be related to the choice of Wilson; but that isn't damning in the way the Repubs claim. It's more a reflection of how hugely bogus the Niger intel really was.¹ This was a casual effort to satisfy a pushy VP office. And, in that respect, it was almost certainly politically foolish; and the only reason Wilson shouldn't/didn't expect his connection to his wife to be leaked by the admin in resopnse to his op-ed was because she was covert and he assumed they wouldn't do such a thing. He was no doubt very astonished that they did. He then, like many, ascribed more malevolence to Rove than was warranted, believing that Rove was aware that Plame was covert when they began their leak campaign.

But I don't believe that either Libby nor Rove was aware that Plame was covert when they first began their leak campaign. In fact, I strongly suspect that Libby is the source that Miller is protecting and she's protecting him not because he undeniably broke the disclosure law (i.e., he knew Plame was covert) but because he perjured himself and claimed not to have talked to anyone at all. I suspect that unlike the case of Cooper and Rove, there's no ambiguity about whether Libby released Miller from her pledge of anonymity, and Miller is stuck by her ethics to respect it.

However, given the various testimony available, it became obvious that a) someone had perjured themselves; and b) there was a conspiracy to commit perjury. That's what Fitzgerald is after. Mark my words.

1. There's been much investigative work relating to the provenance of the Nigel intel via the Italians. Much is known, and frankly it makes those who want(ed) to believe in the intel look bad. The source for the Italians was well-known for being untrustworthy, for example. In fact, you can trace him right back to Chalabi—which is very provocative. A more paranoid narrative would be that the VP's office, and/or the Pentagon's Defense Iintelligence Agency (which is basically a branch of the VP's office) used Chalabi's group to plant the info. A less, and more likely narrative, is that Chalabi's group took it upon themselves to spread disinformation, as we already know they did. Nevertheless, there's rumored to be a big story here, as well.
posted by Ethereal Bligh at 8:32 PM on July 24, 2005