Wrongful Conviction
When a Special Counsel Went Rogue
US Attorney-General Merrick Garland recently announced he was appointing a special counsel to investigate former President Donald Trump. In one form or another, a special counsel has been a tool of government since the 19th century. And they’ve experienced varying levels of success. Nearly two decades ago, one special counsel turned his legal investigation into a political operation.
It was during the lead-up to Operation Iraqi Freedom that President George W. Bush delivered his 2003 State of the Union address. Bush’s January 28 speech was widely viewed as outlining the evidence and rationale for an expected US-led war against Iraq.
In his speech, Bush relayed intelligence passed on to the United States by British Intelligence. Bush said, “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.” This line later became known as the “sixteen words” by Bush’s political opponents.
In an address to the United Nations Security Council in March 2003, the head of the International Atomic Energy Agency testified on the topic of an alleged sales agreement between Iraq and Niger, a major source of yellowcake uranium often used in nuclear weapons production. According to the agency director, a senior Iraq official did, in fact, visit Niger in February 1999. Nonetheless, the atomic energy agency reached the conclusion the yellowcake uranium sales agreement between Iraq and Niger was “not authentic.”[1]
On July 6, 2003, the New York Times published an op-ed titled “What I Didn’t Find in Africa,” by Joseph Wilson, a retired diplomat. Wilson, a fierce critic of Bush, reported he traveled to Niger in 2002 to confirm the British intelligence claim. Wilson, who undertook a similar trip to Niger in 1999, was recommended for this assignment by his wife, Valerie Plame.[2] At the time, Plame was working as an analyst at the Central Intelligence Agency.
Wilson wrote that he spent “eight days drinking sweet mint tea” and asking former Nigerien officials if the African nation sold yellowcake uranium to Iraq. Regarded as the second-poorest nation in the world, Niger is primarily known for exporting gold and yellowcake uranium. The former Nigerien officials told Wilson their nation did not execute a deal with Iraq. Satisfied there was no uranium sale, Wilson returned to the United States to report what he learned. His column suggested the US intelligence community should have accepted his findings over that of the clandestine British Intelligence service, and therefore, he argued, the United States “went to war under false pretenses.”
About a week later, newspaper columnist Robert Novak wrote that CIA officials dismissed Wilson’s findings as “less than definitive” and his report probably never reached the desk of CIA Director George Tenet. This is likely why Tenet never questioned the “sixteen words” when he reviewed the draft of Bush’s prepared remarks. In his column, Novak also wrote that Wilson’s wife was “an agency [CIA] operative on weapons of mass destruction.”
It was that statement that led Bush’s critics to claim the Bush administration was retaliating against Wilson for his pointed criticism of the Iraq war’s rationale. Years earlier, Plame worked undercover in Europe as a CIA case officer; however, she no longer met the criteria of the Intelligence Identities Protection Act of 1982. That act made it a criminal offense to knowingly disclose an undercover CIA employee’s identity.
Nonetheless, a firestorm raged over who leaked the identity of Valerie Plame. The White House immediately announced its full and complete cooperation in any probe.
On December 30, 2003, US Attorney General John Ashcroft recused himself from supervising the investigation into the Plame affair in order to avoid even an appearance of a conflict of interest, since critics insisted the White House was engaging in dirty tricks. Deputy Attorney General James Comey, in his capacity as the acting Attorney General in this matter, named his close friend and protégé US Attorney Patrick Fitzgerald a special counsel to determine if any laws were broken by revealing Plame’s employment.
Deputy Secretary of State Richard Armitage, long-known as a gossip in official Washington, DC circles, immediately notified Fitzgerald that he had revealed Plame’s identity to Novak during a casual conversation earlier that summer. Armitage claimed he did not realize Plame had previously worked undercover. Fitzgerald asked Armitage to keep his admission a secret. Armitage agreed.[3]
It was now obvious that no one at the White House had leaked Plame’s name, as critics suggested. Moreover, Fitzgerald chose not to prosecute Armitage for the leak. At this point, the basis for Fitzgerald’s appointment as special counsel was no longer valid. As such, he should have immediately ended his investigation. Instead, he focused his attention on White House officials. Even without any evidence, the popular narrative in the press was that the White House had orchestrated an attack on Wilson. “It is appalling…the president should allow anyone on his staff to reveal the identity of a covert CIA agent,” opined the Arizona Daily Star.[4]
According to the Washington Post, Wilson was certain White House advisor Karl Rove was behind the alleged attack. Wilson said he wanted to see “Karl Rove frog-marched out of the White House in handcuffs.”[5] Democrats insisted it was either Rove or Vice President Dick Cheney’s chief of staff, Lewis “Scooter” Libby, who was behind the leak.[6]
The Post went even further than other news outlets and made the dramatic claim without offering any evidence that “two top White House officials called at least six Washington journalists and disclosed the identity and occupation of Wilson’s wife.” Further, the Post claimed an unnamed administration officially allegedly said, “Clearly, it was meant purely and simply for revenge.”[7] As the completed special counsel investigation revealed, no one in the administration leaked Plame’s name or identified her employer, underscoring that the sensational Washington Post report was demonstrably false.
In his investigation, Fitzgerald subpoenaed New York Times reporter Judith Miller to appear before a grand jury and reveal the sources of her 2003 reporting on Iraq. It was believed Miller and Libby might have spoken in July 2003, even though Miller did not write a story regarding Wilson or Plame.
Miller refused to reveal her sources, instead vowing to protect their confidentiality. Fitzgerald sought and received a contempt of court ruling and had Miller jailed. One of the sources Miller spoke with was Libby. Confident he didn’t reveal Plame’s name, Libby sent a letter to Miller reaffirming his earlier waiver to confidentiality and telling her, “Your reporting, and you, are missed.” Libby implored Miller to feel free to reveal the conversations she had with him and he ended his letter with the lines: “Out West, where you vacation, the aspens will already be turning. They turn in clusters, because their roots connect them. Come back to work—and life.”
It turns out Libby’s trust and confidence were misplaced. Ironically, it was Miller’s testimony that proved critical in convicting Libby. The other nine journalists who testified at Libby’s trial testified he never mentioned Plame’s name.[8]
In her reporter’s notebook, Miller had written the four-word phrase in parentheses, “(wife works in Bureau?).” After her release from jail, Miller couldn’t recall with whom she had spoken or the context of the phrase she had written more than two years earlier. Fitzgerald helped her out. As he prepared Miller for her grand jury testimony, Fitzgerald convinced her that the four-word phrase was a reference to Libby having told Miller that Joe Wilson’s wife, Valerie Plame, worked at the CIA. Convinced this was so, that is exactly what Miller testified to the grand jury and later testified at Libby’s trial.
Miller’s testimony contradicted Libby. He testified he never revealed Plame’s name. Based on Miller’s testimony, Libby was convicted of perjury, obstruction of justice, and making false statements. But neither Libby, nor anyone else for that matter, was charged with a violation of the Intelligence Identities Protection Act, the premise for Fitzgerald’s appointment. Libby was sentenced to thirty months in prison and fined $250,000.
In 2010, Judith Miller was reading Valerie Plame’s memoir Fair Game, which had been published three years earlier. Plame wrote that in 1989, she began an assignment at the US Embassy in Athens, Greece, where she assumed the cover of working for the State Department.[9] When Miller read that passage, a bell went off. Plame’s memoir finally put into context the four-word phrase Miller wrote in her notebook.
Miller realized the State Department is organized in bureaus. The CIA is organized in divisions. Libby knew Plame worked at the CIA, where they have divisions. He did not know of Plame’s brief cover as a State Department employee, where they had bureaus.
Miller was able to put it all together. If Libby had mentioned Plame and her employment, he would never have mentioned “bureau,” because they do not have bureaus at the CIA. And if Libby had mentioned Plame and “bureau,” then he did not leak her CIA employment. No matter which way it went, it was obvious Libby never committed a crime.
Miller recalled that, at about the same time she had spoken with Libby, she had also interviewed several people from the State Department. Miller then realized her four-word phrase likely referred to a conversation with a State Department employee who may have thought Plame worked there. Miller was overcome by guilt. “Had I helped convict an innocent man?” she wrote in her memoir.[10]
Miller realized Fitzgerald had manipulated her by steering her toward the false narrative that Libby told her Plame was a CIA employee. Making this obvious was the fact that Fitzgerald had Plame’s classified employment record and probably knew that Miller’s “bureau” reference in her four-word note referred to Plame’s time at the State Department and not any employment with the CIA.
Fitzgerald refused to turn over to Libby’s attorneys Plame’s classified employment records, as they had requested. If Fitzgerald had, Libby’s attorneys might have immediately cleared up Miller’s recollection regarding the meaning of the four-word phrase. However, it wasn’t really necessary for the Libby defense team to request Plame’s employment records. Under the Baker rule, Fitzgerald had a legal and ethical duty to turn over to the defense any exculpatory evidence. He possessed such evidence, but he did not turn it over or even disclose that he had it. Fitzgerald’s refusal to comply with the Baker rule of evidence crippled Libby’s ability to establish an effective defense.
So, if Fitzgerald knew Libby never committed a crime, then why was he so hell-bent on charging him with one? The real goal of Fitzgerald’s investigation became obvious. Miller began digging after she realized an innocent man had been convicted. Miller spoke with Libby’s lawyer, Joseph Tate. Tate relayed a conversation he had with Fitzgerald, when he asked the special prosecutor why he was pursuing an innocent man. According to Tate, Fitzgerald told him, “Unless you can deliver someone higher up — the vice president — I’m going forth with the indictment.”[11]
Fitzgerald already knew there was no orchestrated leak of Plame’s name. In fact, no one was ever charged with leaking her name, although that was the sole reason James Comey appointed Fitzgerald as special counsel. Fitzgerald was charged with the “investigation into the alleged unauthorized disclosure of a CIA employee’s identity.”
Fitzgerald’s efforts were not about uncovering who leaked Plame’s identity. He learned that Armitage leaked her identity only days after his appointment as special counsel. Fitzgerald’s goal was to get Libby to “flip” and offer Cheney’s head on a platter. No person was more hated by the political left than Dick Cheney. Fitzgerald turned a legal investigation into a partisan political operation. An innocent man was convicted of a crime he did not commit in an attempt to “get” Cheney.
Apparently believing at the time that the conviction was just, President George Bush commuted Libby’s prison term on July 2, 2007, but left in place the $250,000 fine Libby was ordered to pay.
On April 13, 2018, more than a decade after the conviction, President Donald Trump pardoned Scooter Libby.
Mark Hyman is an Emmy award-winning investigative journalist. Follow him on Twitter, Gettr, and Parler at @markhyman, and on Truth Social at @markhyman81.
His books Washington Babylon: From George Washington to Donald Trump, Scandals That Rocked the Nation and Pardongate: How Bill and Hillary Clinton and their Brothers Profited from Pardons are on sale now (here and here).
[1] “Remarks of Mohamed ElBaradei, Director-General, International Atomic Energy Agency Before the United Nations Security Council,” March 7, 2003.
[2] “Notes—Niger/Iraq Uranium Meeting CIA (SECRET/NOFORN),” US Department of State, February, 9, 2002.
[3] “Armitage Admits Leaking Plame’s Identity,” CNN.com, September 8, 2006, accessed January 23, 2019, http://www.cnn.com/2006/POLITICS/09/08/leak.armitage/
[4] “The Ambassador’s Wife,” Arizona Daily Star, July 23, 2003.
[5] Mike Allen and Dana Priest, “Bush Administration is Focus of Inquiry: CIA Agent’s Identity was Leaked to Media,” Washington Post, September 28, 2003
[6] Kenneth Bazinet, “Criminal Probe of CIA Leak,” New York Daily News, October 1, 2003
[7] Allen and Priest, “Bush Administration is Focus of Inquiry.”
[8] Judith Miller, The Story: A Reporter’s Journey, (New York: Simon & Schuster, 2015), 304-305.
[9] Valerie Plame Wilson, Fair Game, (New York: Simon & Schuster, 2007), 320.
[10] Miller, The Story: A Reporter’s Journey, 310.
[11] Ibid, 316.