- The Washington Times - Sunday, October 9, 2005

The federal prosecutor in the CIA leak case has still made no decision on charges in the 22-month-old probe, prompting lawyers familiar with the case to speculate that he is shifting his focus toward perjury or obstruction of justice charges.

A grand jury was impaneled in December 2003 to investigate whether President Bush’s senior adviser Karl Rove illegally divulged the name of a CIA employee to discredit her husband after he publicly questioned the administration’s justification for the war in Iraq.

But lawyers familiar with the probe say special prosecutor Patrick J. Fitzgerald appears to be changing the grand jury’s initial focus in part because the law protecting covert CIA operatives appears not to apply to Valerie Plame, whose name first surfaced in a July 2003 column by conservative Robert Novak.

“There is not one fact that I have seen that there could be a violation of the agent identity act,” said Victoria Toensing, a lawyer who helped draft the 1982 act.

The Intelligence Identities Protection Act outlaws intentional disclosure of any information identifying a covert agent. The penalty for violating the law is imprisonment for up to 10 years.

But according to the law, Mrs. Plame was not a “covert agent” at the time that at least two senior Bush administration officials discussed her with reporters.

The term “covert agent” applies to those “whose identity as such an officer, employee, or member is classified information, and who is serving outside the United States or has within the last five years served outside the United States,” the law says.

Mrs. Plame’s husband, former Ambassador Joseph C. Wilson IV, said in his book “The Politics of Truth” that he and his future wife returned from foreign assignments in June 1997. Neither one was stationed overseas after they married and became the parents of twins.

After their return, Mrs. Plame worked on weapons of mass destruction issues at the CIA’s headquarters in Langley. Mr. Novak divulged her name six years after the couple returned, putting her outside the definition in the law.

The Novak column followed Mr. Wilson’s disclosure, in a New York Times column, that the CIA had sent him to Niger in February 2002 to investigate reports that Iraq had sought uranium from that African nation.

There has been a recent flurry of activity within the grand jury, which ends its term Oct. 28. After the Sept. 30 testimony of New York Times reporter Judith Miller, the prosecutor called Mr. Rove to testify for a fourth time — expected later this week.

Lawyers familiar with the case say Mr. Fitzgerald seems to have shifted the probe’s focus toward potential charges of perjury or obstruction of justice.

Mr. Rove’s attorney, Robert Luskin, told reporters that Mr. Fitzgerald has assured him that no decisions have been made on charges and that his client has not received a so-called target letter, usually the last step before a grand jury indictment. But the prosecutor warned that he cannot guarantee that Mr. Rove will not be indicted.

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