Did special counsel Patrick Fitzgerald come close to hitting the vice president of the United States with a conspiracy charge? Consider these facts.
* In the Scooter Libby indictment, Fitzgerald notes that Cheney informed Libby on June 12, 2003, that Valerie Wilson worked at the CIA's Counter-proliferation Division. The CPD is part of the operations directorate, the CIA's clandestine services. Many, if not most, of its employees are undercover. Certainly, their employment status at the CIA is classified information. The indictment does not note exactly what Cheney told Libby about Valerie Wilson -- whether he said she was an undercover operative or not. But he was passing on classified information to Libby.
* On July 12, Cheney, according to Fitzgerald's latest filing, "specifically selected" Libby "to talk to the press about the NIE and Mr. Wilson" -- or, at least, that's what Libby said.
* Later on July 12, Libby confirmed to Time's Matt Cooper what Karl Rove told Cooper: that Joe Wilson's wife works at the CIA. Libby that day also talked about Valerie Wilson with New York Times reporter Judith Miller.
Fitzgerald had two basic options when it came to prosecuting Libby for the leak. He could have charged him under the Intelligence Identities Protection Act. This law, though, only applies to a government official who discloses identifying information about a covert US officer and who knows that officer is undercover. To win a conviction, Fitzgerald would have to prove that Libby knew -- beyond a reasonable doubt -- that Valerie Wilson was undercover. Libby might have realized that. He certainly should have at least considered that possibility once Cheney told him that she worked at the Counter-Proliferation Division of the CIA's clandestine service. Still, if Libby could claim before a jury that he was not sure or did not bother to ask or think about her cover status, Fitzgerald would have a tough time winning the case.
The other option was to prosecute Libby for disseminating classified information to unauthorized parties -- Cooper and Miller. But this course also carried a problem. It would place Fitzgerald on the path to turning laws not usually used by prosecutors for media leak cases into an Official Secrets Act. At his press conference last fall, Fitzgerald signaled he was not enthusiastic about doing this.
But it is clear that Fitzgerald thought long and hard about each of these possible prosecutions. And as late as last September, according to sources familiar with the investigation, he was still collecting information that would have been needed for a prosecution under the Intelligence Identities Protection Act.
Had Fitzgerald pursued either of these options, he would have had another matter to consider: whether to charge Cheney with conspiracy. If Fitzgerald had a case that Libby had acted criminally at the instruction of Cheney, then he would have had reason to indict Cheney as well.
But Fitzgerald indicted Libby for perjury and obstruction of justice, charging that Libby lied to FBI agents and grand jury about the Plame leak. He decided not to go after Libby for violating the Intelligence Identities Protect Act or for leaking classified information. Because of that Cheney lucked out -- perhaps much more so than has been assumed up to now.
Cross-posted on davidcorn.com.