CIA leak prosecutor Patrick Fitzgerald is continuing to refuse to provide the Lewis Libby defense team with evidence that Valerie Wilson’s employment status was classified when she was outed by Robert Novak’s column, or evidence that the disclosure of Wilson’s identity damaged national security. In court papers filed late yesterday, Fitzgerald attempts to muddy the question of Plame’s status by saying he has no documents that show her status was not classified:
The defense also seeks all documents “relating to whether Valerie Wilson’s status as a CIA employee, or any aspect of that status, was classified at any time between May 6, 2003 and July 14, 2003.” Mr. Libby predicates his request on a single reference in the indictment to the fact that Ms. Wilson’s employment status was classified during the relevant time. (Paragraph 1(f) of the Indictment). The defendant overlooks the simple fact that Ms. Wilson’s employment status was either classified or it was not. If the government had any documents stating that Ms. Wilson’s employment status was not classified during the relevant time — and we do not — we would produce them though not strictly required to under the doctrine of Brady v. Maryland. The defense is not entitled to every document mentioning a fact merely because that fact is mentioned in the indictment.
On the issue of damage done by the disclosure of Wilson’s identity, Fitzgerald says he never claimed any damage was done — only that it could have been done.
The defendant also argues that he is entitled to information about any assessment of the damage caused by the disclosure of Ms. Wilson’s employment because “potential harm to national security was a focus of the government’s investigation.” This claim is illogical. First, there were many things that were investigated that are not reflected in the charges in the indictment. The actual — as opposed to potential — damage caused by the outing of Ms. Wilson is not alleged in the indictment, nor was it a focus of the grand jury investigation. The indictment alleges only that the outing of CIA employees could cause damage. The actual damage resulting from uncharged conduct is irrelevant to whether the defendant lied about his conversations with reporters.