It is understandable that many in the conservative media have called for President Bush to pardon Lewis “Scooter” Libby, former top aide to Vice President Dick Cheney, because of his conviction in the so-called CIA leak case. Libby should never have been put on trial; indeed, new evidence suggests that his alleged target, former CIA analyst Valerie Plame, is the one who should be investigated for allegedly lying under oath before Congress about her role in this affair.

Plame’s backers in the agency would have great reason to fear such a probe. It might shed light on who in the CIA was actively trying to sabotage the Bush Administration’s Iraq policy–and who may be continuing to do so today.

AIM Editor Cliff Kincaid and I have detailed in a series of columns how in fact this case should never have been brought, and that exoneration, not a pardon, would better serve Libby, history and justice. The underlying theory about the Bush administration seeking retaliation against Joseph Wilson for writing a column in the New York Times accusing the Bush Administration of “twisting” evidence to justify going to war against Iraq was false, and it was Wilson who played fast and loose with the truth. And it is well known that it was Richard Armitage, Deputy Secretary of State under Colin Powell, not anyone from the White House, nor a supporter of going to war in Iraq, who told Robert Novak and Bob Woodward that Wilson’s wife, Valerie Plame Wilson, worked for the CIA and had recommended her husband for the trip to Niger.

It was Novak’s column identifying Ms. Wilson that triggered the CIA request to the Justice Department for an investigation, which resulted in the appointment of Special Prosecutor Patrick Fitzgerald.

The ordeal has been stressful and expensive for Libby. But in the aftermath of his sentencing last week to 30 months in jail and a $250,000 fine, the case can and still should be made for Libby’s complete exoneration. That can only happen if the appeal process continues and Libby is not pardoned.

The editors of The Weekly Standard, National Review and the Wall Street Journal have all made strong cases for a pardon. Dan Froomkin of the Washington Post has assembled major editorials opposing a pardon.

We showed in another column that a who’s who of journalists testified at the trial that they had spoken with Libby during the period in question when he was supposedly out talking about Ms. Wilson to get back at Mr. Wilson, and only Judith Miller of the New York Times recalled him saying anything to her about Ms. Wilson working for the CIA. Under cross examination, however, Miller’s testimony collapsed, and besides, she never wrote about the story until much later.

This proved that Libby never targeted Plame. His purpose was to find out why Joe Wilson went to Africa and who sent him, and to inform the members of the press that it wasn’t Cheney’s office, as Wilson had suggested. His purpose was also to discuss the CIA’s campaign of leaks and efforts to undermine the Administration’s position on the war and the issue of WMD. It was a natural matter of curiosity for officials of the Bush Administration and the press. People were talking to one another on multiple occasions. This is how Washington works.

In that same column, we documented Libby’s testimony to the grand jury in which he made very clear that he first learned about Ms. Wilson’s identity from Vice President Cheney in June of 2003, before telling the grand jury his memories of conversations with reporters Tim Russert and Matt Cooper in July of that year. It was in those conversations that he was said to have perjured himself and obstructed justice, in part by saying that he recalled that he heard about Ms. Wilson from Russert, and that at that time he thought he was learning it for the first time.

But that didn’t stop Special Prosecutor Patrick Fitzgerald from writing in the Government Sentencing Memorandum, dated May 25 of this year, that Libby “lied about when he learned of Ms. Wilson’s CIA employment, about how he learned of her CIA employment, about who he told of her CIA employment, and about what he said when he disclosed it.”

This accusation, despite the jury verdict, cannot be proven.

Here, again, is what Libby said to the grand jury in March 2004, under questioning from Fitzgerald, points he also made when talking to FBI investigators months earlier:

Q….Before we look at your actual notes, how certain are you from memory that the information about the wife [Valerie Plame Wilson] working in the functional office at the CIA, the wife of this former ambassador, was information that Vice President Cheney imparted to you as opposed to information that you imparted to Vice President Cheney?

A. Oh, I’m pretty certain of that.

Q. And what makes you certain?

A. I sort of remember him saying it, you know, in an off sort of curiosity sort of fashion. That’s my recollection of it anyway.

And later:

Q. And are you telling us under oath that from July 6th to July 14th you never discussed with Vice President Cheney whether Mr. Wilson’s wife worked at the CIA?

A. No, no, I’m not saying that. Only July 10 or 11 I learned, I thought anew, that the wife–that, that reporters were telling us that the wife worked at the CIA. And I may have had a conversation then with the Vice President either late on the 11th or on the 12th in which I relayed that reporters were saying that. When I had that conversation I had forgotten about the earlier conversations in which he told me about–reflected in my notes that we went over this morning, in early June, before the [Walter] Pincus article, when he had told me about that the wife worked at the CIA. I had just forgotten it.

Q. …who did you speak to on July 10th or 11th that you recalled learning again, thinking it was for the first time, that Wilson’s wife worked at the CIA?

A. Tim Russert of NBC News, Washington Bureau Chief for NBC News.

The question remains: If Libby was trying to convince the FBI agents and the grand jury that he first learned about the identity of Ms. Wilson from journalists, why would he first tell them that he actually learned it originally from Cheney? Again, Libby had no reason to lie.

And what about Tim Russert? Russert had commented on the case on NBC, in a form of pre-trial publicity that was damaging to Libby’s case, before he went on the stand. He claims there was no mention of Ms. Wilson in his conversation with Libby, but Russert, like many of the other prosecution witnesses, clearly had memory problems of his own. And making this verdict even more questionable, one of the jurors in the case was a former Washington Post journalist who knew Russert, a witness in the case.

Out of Control

In the Sentencing Memo, Fitzgerald went way beyond what he had prosecuted Libby for, and asked for sentencing as if Plame had been a protected agent under the Intelligence Identities Protection Act. Fitzgerald also suggested that Libby had violated the Espionage Act, even though he was never charged with doing so.

As pointed out in Time magazine, Fitzgerald, during pre-trial hearings, had insisted that this wasn’t a case about a leak, and he fought “defense requests for documents about whether Plame was ever a covert agent, a status that could have made intentionally leaking her identity a crime.”

But for the sentencing phase, “Fitzgerald changed his tune, arguing that the underlying (and uncharged) crime was so serious as to warrant a sentence twice as long as what the federal probation office recommended; notably, his brief included the revelation that the CIA did consider Plame’s identity classified, at least for 18 months.”

Fitzgerald states very specifically in the Sentencing Memo that Plame was a covert agent, covered by the Intelligence Identities Protection Act at the time her name was revealed by Bob Novak. But Clarice Feldman, a Washington attorney who has covered this case for American Thinker, challenges both the propriety and the accuracy of his charges in one of her many outstanding columns on this case.

“One would have thought that a good investigator would have made an effort to find out whether this was the case at the beginning,” writes Feldman, “not at the sentencing, where Fitzgerald is seeking an upward revision of the sentence claiming now that Plame is ‘covert’, in circumstances shocking to anyone with a notion of due process.” She challenges the basis of his findings as well.

The judge obviously agreed with Fitzgerald, but Libby has now fought back, seeking to stay out of jail while his appeals continue. An outstanding blog which has covered this complete trial and process like no other, Just One Minute, has linked to Libby’s latest filings and summarized his arguments to stay out of jail, and ultimately to have the verdict overturned.

One is based on the court’s refusal to let Andrea Mitchell testify. We documented her comments that Plame’s CIA affiliation was “widely known among those of us who cover the intelligence community and who were actively engaged in trying to track down who among the foreign service community was the envoy to Niger.” Mitchell later claimed that she was confused and that she had misspoken. But confusion and a faulty memory for Libby got him prosecuted and convicted.

Basis for Appeal

The basis for appeal that legal experts seem to think stands the best chance to have the verdict overturned is the memory defense. Libby was denied the opportunity to have a memory expert offer a theory as to why and how he may have gotten his comments confused. The simple fact is that people remember different things, and that other things were on Libby’s plate at the time he supposedly was lying about what he knew about Wilson and Plame.

In addition, a group of legal scholars, including Alan Dershowitz and Robert Bork, has submitted an amicus brief to Judge Walton “arguing that that there are serious constitutional questions about the legal authority of the special prosecutor who pursued Libby,” and which could lead to his convictions being overturned on appeal.

It is for those reasons that we continue to argue that, painful as it may be, Libby should continue to go through the system, and hopefully be exonerated, rather than to carry the burden of guilt that a pardon carries. It appears this view is gaining currency in the blogosphere, although there is plenty of passion for a pardon as well.

If Judge Walton allows Libby to stay out on bond during the appeals process instead of having to go to prison sometime this summer, then a decision to fight it to the end makes more sense. It will still be stressful and expensive, but at least Libby won’t have to wait for exoneration in a prison cell. If he has to go to prison now, however, the decision becomes much tougher, for Libby and for Bush.

In an odd twist to this whole story, Judge Walton, who came into the Justice Department under President Carter, and was named as a judge first by President Reagan, then President George H.W. Bush, and to his current position by George W. Bush, was just appointed by U.S. Chief Justice of the Supreme Court John Roberts to the Foreign Intelligence Surveillance Court, set up under the Foreign Intelligence Surveillance Act to consider requests from the Justice Department for “authorization to conduct electronic surveillance and physical searches within the United States of those suspected of being foreign spies or terrorists.”

There is another factor which is extremely important. Plame, who has sued Cheney, Karl Rove, Libby and Armitage for destroying her career, and now the CIA and Director of National Intelligence over the contents of her forthcoming book, has some explaining of her own to do. Sen. Kit Bond of Missouri has released a document that appears to contradict a statement she made under oath before a Congressional committee. Sen. Bond said, according to USA Today, that she “should explain the ‘differences’ in her various accounts of how her husband was sent to the African nation of Niger in 2002 to investigate reports Iraq was trying to buy uranium there.”

Byron York has summarized this on the National Review website. In a new Senate Intelligence Committee report on its investigation into prewar intelligence, Bond has submitted “additional views” in which he makes a strong case that Ms. Wilson may have lied under oath before a House committee last March when she unequivocally denied having played any role in picking Joseph Wilson for a fact-finding trip to Niger.

All of this adds to the mystery. If she lied, why? Was she just protecting herself? Or is she protecting somebody else–perhaps several others–at the CIA?

If Plame lied under oath about her role in sending her husband on the CIA mission, then that means that what or who she is protecting is very serious indeed. This case, rightly or wrongly, will forever be linked to the larger question of whether we were lied or misled into the war to topple Saddam Hussein and liberate Iraq. That’s why it is so important that it is played out until the end, because this debate will resonate for many years to come.

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