Leopold: "Bush Admin. Is Focus of Leak Inquiry"

On the evening of September 27, 2003, Ari Fleischer logged onto a computer and read a story published on the Washington Post's web site - a story that would be printed above the fold on the front page of the paper the next morning.

"Bush Administration Is Focus of Leak Inquiry," the headline read. "CIA Agent's Identity Was Leaked to Media."

The story, reported by the Washington Post's Mike Allen and Dana Priest, said that "two top White House officials called at least six Washington journalists and disclosed the identity and occupation of Wilson's wife" and that as a result the Justice Department was launching an informal inquiry to find out who leaked the name of covert CIA operative Valerie Plame Wilson to syndicated columnist Robert Novak two months earlier.

Fleischer cringed when he read the news. Worse, the story said that whoever was responsible for the leak might have violated an obscure 1982 federal law that carries a maximum punishment of 10 years in prison and tens of thousand of dollars in fines "for unauthorized disclosure by government employees with access to classified information." (The law actually states that officials who "knowingly" disclose information about an undercover agent could be prosecuted under this statute. The Washington Post incorrectly characterized the law.)

By the time he finished reading the story, Fleischer's heart "went into his throat."

The next morning, according to Peter Zeidenberg, an assistant US attorney working with Special Prosecutor Patrick Fitzgerald on the CIA leak case, Fleischer immediately contacted his lawyer.

Zeidenberg disclosed Fleischer's nervous reaction to the Post story at the end of the third day of testimony in the perjury and obstruction of justice trial of I. Lewis "Scooter" Libby, Vice President Dick Cheney's former chief of staff, who is accused of lying about when and how he learned Valerie Plame Wilson was employed by the CIA and whether he disclosed the information to journalists. The jury, which will decide Libby's fate, was dismissed while Zeidenberg discussed Fleischer with US District Court Judge Reggie Walton and Libby's defense team.

Motive Behind the Leak?

Two months before the Washington Post story was published, a critic of the Iraq war and the White House's foreign policies wrote an op-ed article in the New York Times accusing the administration of "twisting" intelligence to win support for the war. Wilson also disclosed that one of the main points of President Bush's State of the Union address in January of that year, that Iraq had tried to acquire uranium from Niger to use in building an atomic bomb - which paved the way toward war - was bogus. Wilson wrote that he had personally traveled to Niger to check out the claims and had reported back to the CIA that it was baseless.

Wilson's column triggered a firestorm inside the White House. Five days after it was published, CIA Director George Tenet accepted responsibility for allowing the reference to Iraq, Niger and uranium, otherwise known as the "sixteen words," to be included in Bush's January 28, 2003, State of the Union address. Many people interpreted this as Tenet falling on his sword to protect the president. Evidence surfaced in late July 2003 that senior administration officials had been warned by the CIA and the State Department on numerous occasions to avoid citing the "sixteen words," because they were based on unreliable intelligence sources.

A little more than a week after Wilson's New York Times op-ed article was published, syndicated columnist Robert Novak wrote a story attacking Wilson's credibility and suggested that his trip to Niger was a boondoggle, a hastily arranged trip set up by his wife, Valerie Plame Wilson, an operative who worked at the CIA. Novak, citing two senior administration sources, said he was told that Plame was Wilson's wife. Whoever was responsible for leaking Plame's identity and CIA status to Novak may have broken the law, wrote David Corn, a columnist for The Nation, a couple of weeks later.

Last week, the public learned for the first time that there were many people inside the White House responsible for leaking Plame's identity to reporters. Flesicher, who resigned as White House press secretary in July 2003, it turns out, was one of the leakers. In September of 2003, the month the Justice Department started to investigate whether any laws were broken as a result of the Plame leak, the White House was in full defense mode. President Bush and White House press secretary Scott McClellan publicly denied that any member of the administration was involved in the leak or took part in a campaign to discredit Wilson - despite the fact that one of the individuals responsible for the leak was White House political adviser Karl Rove.

Fleischer's Role Remained a Mystery

Up until a week ago, Fleischer's role in the CIA leak case has been a mystery. Since leaving his post, he has kept a low profile and has refused to entertain questions about whether he was involved in the case. In March of 2005, he published a book, Taking Heat: The President, the Press, and My Years in the White House,about his experience dealing with the media during the two and a half years he worked as White House press secretary. The book contains nary a mention of Joseph Wilson or Valerie Plame.

Perhaps the reason for the silence is that by the time Fleischer's book was published, he had been granted an immunity deal with Fitzgerald a year earlier, and wasn't permitted to discuss the case.

Fleischer is scheduled to testify against Libby on Monday. Fleischer's grand jury testimony states that during a lunchtime meeting in July of 2003, Libby had told him Plame worked for the CIA, was married to Wilson, and had arranged for the former ambassador to travel to Niger to investigate claims that Iraq was trying to purchase uranium to build an atomic bomb. After he received immunity, Fleischer told a grand jury that Libby had said the information he disclosed about Plame was "hush hush" and "on the QT."

During Thursday's court proceedings, Zeidenberg provided a detailed backstory related to Fleischer's role in the leak and how his immunity deal with the government came together.

Zeidenberg said the September 28, 2003, Washington Post article by Mike Allen and Dana Priest was the catalyst behind Fleischer's demand for immunity prior to his testimony before a grand jury in February 2004, less than two months after Fitzgerald was appointed special prosecutor. The reason, according to Zeidenberg, was that Fleischer, who had resigned his White House position in July 2003, had disclosed Plame's identity and CIA status to more than one journalist. He had told NBC News reporter David Gregory, and other unnamed reporters, that Plame was married to Wilson.

Believing he may have broken the law by discussing Plame with reporters, Fleischer asserted his Fifth Amendment privilege against self-incrimination and would answer questions before a grand jury only if Fitzgerald promised he would not prosecute him.

"Mr. Fleischer is going to testify that he did seek immunity, and he would not talk to the government before he obtained immunity," Zeidenberg told Walton. "And the reason he wanted immunity is because, on the morning - actually the evening - of September 27 [2003], he found the story ... he read a newspaper article, which indicated that there was a criminal investigation into the possible unauthorized disclosure of a covert agent. And he read that, and he knew that he had conveyed information about that woman, Valerie Wilson, to reporters. And he realized ... it was one of those moments where your heart goes into your throat, and you think, I could be in very big trouble here."

Elizabeth de la Vega, author of the New York Times bestseller, United States vs. George W. Bush, et al., and a former federal prosecutor, said the process for granting a witness immunity does not happen by simply waving a magic wand.

"When someone says he is going to take the Fifth, the assistant US attorney gets permission from the Department of Justice to grant immunity, and then the application and proposed order are submitted to the court, which then orders the person to testify with the provision that nothing he says can be used against him, either directly or derivatively," de la Vega said.

Libby's attorney, William Jeffress, argued that the immunity deal Fleischer received might have been improper because it could lead the jury to believe that if Fleischer believed he committed a crime then Libby should also have been under the same belief.

"Mr. Flesicher got court-ordered immunity in February of '04 and he testified to the grand jury and talked to the FBI after that immunity was granted," Jeffress told Judge Walton, according to a copy of a transcript of Thursday's court proceedings. "I was alerted by Mr. Zeidenberg this morning that he intends, when Mr. Fleischer testifies, to ask Mr. Fleischer, well why did you want immunity? And, you know, have him say, well, gee I read in the paper that, you know, outing a covert agent could be a crime, and, you know, I was worried about getting prosecuted."

"That's a completely improper way to use an immunity agreement to have a witness testify about, you know, that they thought they might have committed a crime," Jeffress added. "It's obviously hugely prejudicial to Mr. Libby in that the government would use that to say, well see, Mr. Fleischer thought it so Mr. Libby must have thought it too and he had a motive to lie."

Jeffress argued that the prosecution should be compelled to turn over evidence of written or oral conversations the government had with Fleischer's attorney so the defense can determine whether Fleischer had a motive to protect his own interests and lie during his grand jury testimony.

Fitzgerald told Walton that any suggestion by Libby's attorneys that Fleischer was given immunity in exchange for specific information Fleischer would provide against Libby is baseless, and he objected to having to provide Libby's attorneys with detailed information related to his conversations with Fleischer and his attorneys, because the discussions did not center on what Fleischer would discuss before the grand jury. Fitzgerald he knew Fleischer had "relevant information" about the leak but he did not know the substance of it prior to Fleischer's grand jury testimony.

"We didn't get a factual statement of what Mr. Fleischer would say about the defendant," Fitzgerald told Judge Walton. "It wasn't as if someone said, here is what I can give you about Mr. Libby. Is that good enough? You know, will you give us immunity? That wasn't it. We understood that Mr. Fleischer had some relevant knowledge, and he had information. He spoke to people. He did something with information. What we weren't given is it came from Mr. Libby and here's what he did with it. It wasn't something we had laid out for us. We knew he had relevant information about the case. We knew we had to conserve it."

He objected to the prosecution's intent on introducing the September 28, 2003, Washington Post article because, Jeffress said, it contained incorrect information about the Identities Intelligence Protection Act - the law Fleischer thought had he violated.

But Zeidenberg told Walton that the article is not being "offered for the truth," but will simply be introduced into evidence by the prosecution to establish Fleischer's "state of mind" and that Fleischer "felt he had to seek immunity" because he was "concerned" he might have committed a crime.

If the article "incorrectly cites what the elements are of the Identities Protection Act, then that is relevant to [Fleischer's] state of mind, just as it's going to be relevant to Mr. Libby's state of mind," Zeidenberg argued, adding that it may establish that Libby had a motive to lie to the grand jury investigating the leak.

Libby Questioned About Washington Post Story

Zeidenberg went a step further, and disclosed some new facts during Thursday's court session that may poke a few holes in the defense's assertion that Libby "misremembered" how and when he found out about Plame.

The prosecutor said some elements of the September 28, 2003, Washington Post story - specifically, the allegation that "two top White House officials called at least six Washington journalists and disclosed the identity and occupation of Wilson's wife," and that a federal crime may have been committed - were reprinted in an October 12, 2003, story in the Washington Post under the headline "Probe Focuses on Month Before Leak to Reporters."

The article, written by Walter Pincus and Mike Allen, was published two days before Libby was first questioned by the FBI about how he found out about Plame, and whether he played a role leaking her name to reporters. Libby told the FBI that he was told in July of 2003 by Tim Russert, host of "Meet the Press," that Plame was married to Wilson, worked for the CIA, and sent Wilson on a fact-finding trip to Niger. But the October 12, 2003, article was discovered in Libby's files by federal investigators. Libby underlined the passages cited above, Zeidenberg said.

Libby "was specifically questioned about the ... allegation that two White House officials were contacting six reporters with this information," Zeidenberg told Walton. "And he was asked his impressions of that. He acknowledged that he had that article. That he read that article. It was an October 12 [2003] article, which was two days before the FBI interviewed him. So clearly, it's going to be relevant and it's admissible independently of Mr. Fleischer's testimony."

Walton agreed with Zeidenberg, saying that the September 28, 2003, Post story can be admitted into evidence by the prosecution regardless of the inaccuracy because it establishes the reasons Fleischer sought immunity. Furthermore, the October 12, 2003, article is relevant for the jury to hear about as well.

"If Mr. Libby has an article of this nature in his possession and he's underlined information that would tend to suggest that he had concerns about whether he committed a crime by having revealed this information, obviously, it seems to me that does become relevant because it may relate to what his state of mind was when he talked to the FBI and when he ultimately appeared before the grand jury," Walton said. "So, even if the article is wrong in that respect as it relates to Mr. Libby, if he's got it in his possession, and he's got it underlined, that would suggest that, well, maybe he had a motive to lie, from the government's perspective, because he felt that he had committed a crime by revealing the information and therefore had to seek to cover it up."

Jason Leopold is a former Los Angeles bureau chief for Dow Jones Newswire. He has written over 2,000 stories on the California energy crisis and received the Dow Jones Journalist of the Year Award in 2001 for his coverage on the issue as well as a Project Censored award in 2004. Leopold also reported extensively on Enron's downfall and was the first journalist to land an interview with former Enron president Jeffrey Skilling following Enron's bankruptcy filing in December 2001. Leopold has appeared on CNBC and National Public Radio as an expert on energy policy and has also been the keynote speaker at more than two dozen energy industry conferences around the country.

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