Who Framed Ari Fleischer?

Should the case against Scooter Libby go to trial, perhaps the most important witness for the prosecution will be Ari Fleischer. Fleischer's testimony is key to Fitzgerald's case for a number of reasons.

First, Fleischer claims that Libby told him--on July 7, 2003--about Plame's role in sending her husband to Niger. Not only does that directly contradict Libby's version of the conversation, but it also demonstrates that Plame was fresh in Libby's mind just three days before he claims to have forgotten all about her when talking to Tim Russert.

Second, as Jeralyn reminds us, Fleischer testified that Libby told him the information about Plame was "hush-hush" and "on the qt.'" This testimony tends to undermine Libby's claim that he had no idea Plame's affiliation with the CIA was classified. Although Libby has not been charged for his role in the underlying leak, this testimony would undermine his credibility with the jury and suggest a motive for lying to investigators.

In their most recent filing, Libby's attorneys provide a number of clues to how they plan to push back against Fleischer's testimony.

Press accounts suggest that Mr. Fleischer may
have learned about Ms. Wilson during his trip
to Africa after seeing it in a classified report sent
to Mr. Powell on Air Force One and then
disclosed this information to reporters.
Other documents, totally unrelated to the report,
may show that Mr. Fleischer learned about
Ms. Wilson from someone other than Mr. Libby.
Also, the substance of the report is not as
important as what Mr. Fleischer did with or said
about the report. That information is likely
reflected in correspondence, notes, or e-mails in
Mr. Fleischer's files, not in the report itself.

After reviewing such documents, the defense
will be better equipped to examine Mr. Fleischer
about whether he saw the report on Air Force
One, whether he recognized that it contained
classified information, and whether he
communicated its contents to anyone else.

The press reports Libby's attorneys are referring to are, presumably, a pair of stories written by Richard Keil of Bloomberg in July 2005 which raised suspicions about Fleischer's involvement in the Plame leak. In a July 13, 2005 story, Keil wrote:

People familiar with the inquiry say Fitzgerald
also is reviewing testimony by former White
House Press Secretary Ari Fleischer, though it is
not clear whether the prosecutor is focusing on
him or seeking information about higher-ups.
Fleischer last night refused to comment.

In a July 18, 2005 story, Keil went even further:

On the same day the [INR] memo was prepared,
White House phone logs show Novak placed a call
to White House Press Secretary Ari Fleischer,
according to lawyers familiar with the case and a
witness who has testified before the grand jury.
Those people say it is not clear whether Fleischer
returned the call, and Fleischer has refused to
comment.

The Novak call may loom large in the investigation
because Fleischer was among a group of
administration officials who left Washington later
that day on a presidential trip to Africa. On the
flight to Africa, Fleischer was seen perusing the
State Department memo on Wilson and his wife,
according to a former administration official who
was also on the trip.

Whoever Keil's sources were, their goal was clearly to cast suspicion on Fleischer. The unmistakable implication here is that Fleischer may have learned about Plame from the INR memo and passed that information along to Bob Novak.

Subsequent reporting, however, has not borne this out. Fleischer, who has apparently been cooperating from the beginning, testified that he never read the INR memo (and it's hard to see why he would lie about that point given that he testified Libby told him all the same information the day before). And while Novak's original source is still not known, the conventional wisdom in Washington seems to be that it's either Richard Armitage or Stephen Hadley, not Fleischer (though Fleischer may well be Walter Pincus' mystery source).

So the real question is, who was pointing the finger at Fleischer in July 2005, and why?

It may be that someone genuinely thought Fleischer had read the memo and was behind the Plame leak. Jeralyn reminds us that on Hardball a while back, Andrea Mitchell made an off-hand comment about Colin Powell having testified that Fleischer read the INR memo on Air Force One. If this is true, then Powell is most likely the "former administration official" cited by Keil in his July 18 piece. But as far as I can tell, no one else has reported this fact about Powell's testimony, so it's possible Mitchell was just confused or speculating.

The other intriguing possibility--which Empty Wheel raised quite a while ago--is that this Fleischer finger-pointing was the result of intentional misinformation, perhaps by sources close to Libby.

It's not hard to see why this particular bit of information would be helpful to Libby if true, and why his lawyers made such a big deal about it in their court filing. First, it helps to undermine Fleischer's testimony by contradicting it on an important point. Second, and more importantly, it provides an alternative explanation for how Fleischer learned about Plame. This is key considering Libby claims not to have told him. Libby's team needs to explain how Fleischer learned about Plame in the first place. Third, and this is super important, I suspect that Fleischer has testified that he understood Plame's CIA affiliation to be classified or at least sensitive. After all, why else would Fleischer not have used that information in one of his many press briefings that week? The INR memo helps explain why Fleischer might have understood this information to be classified while Libby did not; Fleischer, Libby's attorneys will argue, read the memo and saw that the information about Plame was marked "S" for secret. Libby never saw this memo, and therefore never understood that this was sensitive information. At least so they'll argue.

I guess what I'm saying is that I find it odd that these two anomalous, anonymously-sourced stories by the same reporter just happen to be very helpful to Libby. Is it possible that Keil's sources misled him in an effort to impugn the credibility of someone they knew to be cooperating with Fitzgerald's investigation? I don't know, but if I were a judge, I would be very wary about allowing these particular press reports to be offered as evidence or even used to cross-examine witnesses.