The Scooter libby Trial: The Obstruction Charge

by emptywheel

---

Buy Anatomy of Deceit on Amazon
Buy Anatomy of Deceit from my local indy bookstore

For more news on FDL/emptywheel/Huffington Post coverage of the trial see this

---

Earlier this week, I reviewed the known evidence related to the false statements and perjury charges (charges related to Cooper, charges related to Russert). In this post, I'll review evidence relating to obstruction. This is tougher still than the other two, because it is the area where Fitzgerald has the greatest degree of leeway in describing how Libby's alleged lies obstructed Fitzgerald's investigation of the leak. Did Libby obstruct the investigation because, by lying, he prevented the FBI from discovering that Libby's earlier and ongoing preparation of a smear campaign against Wilson led directly to a set of leaks the week of the leak? Or did he obstruct the investigation by deliberately hiding the evidence of Dick's intimate involvement with the smear, from start to finish?

And frankly, we just haven't seen anywhere near as much of the evidence on the obstruction charge as we have with the charges on lying. For example, one huge question pertaining to the obstruction charge: did Libby try to hide his notes in the first days of the investigation in 2003? You know, the ones that reveal he learned of Plame's identity from Dick, the ones that show that Dick instructed him to leak something to Judy on July 8? If Libby only started telling his "I learned it as if it were new" story after the FBI confronted him with his notes, then it makes the obstruction charge much easier to prove. I also suspect there is a good deal of testimony coming from Cathie Martin and Ari Fleischer that relates directly to the details Libby was trying to obstruct our understanding of--though if I'm right, Fitzgerald has been saving these details for the trial.

Obstructing What?

In general, the evidence relating to the obstruction charge overlaps significantly with the evidence relating to the Russert charge. Surely, to explain an obstruction charge, Fitzgerald will explain how Libby and OVP deliberately collected information on Joe Wilson and (perhaps not as deliberately) his wife. Just as a reminder, here is the list of actions Libby took to collect data on Wilson:

• May 29: Libby asks Marc Grossman for more information on Wilson's trip
• Before June 9: OVP asks CIA for documents relating to Wilson's trip
• June 11: Libby asks Robert Grenier about the trip
• June 12 or before: Dick Cheney discusses the trip with someone from CIA and learns Plame works in CPD; he passes this information on to Libby
• June 19 or after: Eric Edelman discusses leaking info to the press about Wilson's trip (remember, it was still classified for the government) to defend OVP; Libby tells him he can't discuss such things on an unsecure line
• sometime in this period: Cathie Martin has a conversation with Bill Harlow who tells her of Plame's identity; she passes this on to Libby
• sometime after July 6, perhaps on July 8: Libby asks David Addington for more information relating to Wilson's trip and a judgment supporting Presidential authorization to leak something to Judy

Seemingly everyone in OVP was doing oppo research on Joe Wilson. And it continued right up until July 8, two days before Libby learned of Plame's identity again "as if it were new." We also know that OVP had at least two meetings in which it strategized how to respond to Wilson: on June 12 and on July 12.

All of these details, it seems to me, are one part of the what Libby obstructed the FBI from discovering. By claiming to have learned of Plame from Russert and just spread it on as gossip, Libby was effectively hiding this activity (if he didn't produce the notes) or disassociating it from the eventual leaks (if he did produce the notes). In so doing, he was disconnecting deliberate actions that might be related to the leaks from the actual leak.

But there are a set of details that we barely know that also play into the obstruction charge: Dick's involvement in the process. By claiming to have learned of Plame from Russert and just spread it on as gossip, Libby invented (if he did) a story that attributed his knowledge of Plame to Russert--rather than the Vice President.This is important for two reasons. First, if Libby learned of Plame's identity from Cheney, he would have learned it through classified channels, and therefore been subject to the IIPA. Just as importantly, if Cheney played a central role in this process, it would implicate the highest reaches of the Administration. As a reminder, these are the details that we know relate to Dick:

• June 12 or before: Dick Cheney discusses the trip with someone from CIA and learns Plame works in CPD; he passes this information on to Libby
• July 6: Dick Cheney writes a set of talking points on Joe Wilson's op-ed including one--"or is it a junket" that is quite similar to the leak to Pincus on July 12
• Before July 8: Cheney authorizes Libby to leak something to Judy Miller; at Libby's request, he gets Bush's authorization for the leak
• July 12: Cheney strategizes on response to Wilson with Libby and Cathie Martin

In addition, Fitzgerald has suggested Cheney mentioned Wilson several times during the week of the leak. I expect we'll learn a lot more about when and how Cheney mentioned Wilson that week.

I do believe Fitzgerald intended to argue that Libby obstructed justice to hide Cheney's role--at least before Libby called Cheney to testify (though I still think it's likely). Just in the snippet of Libby's grand jury testimony we've seen, Libby makes completely implausible arguments to say that Cheney wasn't involved in smearing Plame--until after Novak's column. Placed next to the charges relating to lying, this appears to be clear obstruction--how can Libby pretend that he learned Plame's identity "as if it were new" if his boss was talking to him about Wilson all week long?

All of this addresses the "what" Libby was obstructing--what facts was he trying to hide when he threw sand in the grand jury's eyes? But to prove obstruction, Fitzgerald will have to prove intent.

Which is one of the reasons, I think, why Libby is fighting so hard to hide the details surrounding the journalists. The Libby team has been pushing very hard to exclude all testimony relating to journalists refusing to testify, on the grounds that such acts took place after Libby allegedly lied to the FBI and the grand jury. If they're able to do this, for example, then Fitzgerald can't ask Judy to explain that little Aspen letter Libby sent her. I rather suspect they won't be able to exclude all of these details. And at the very least, the actual meeting itself--which took place in August 2003--would be permissible. In other words, I strongly suspect that Fitzgerald may be sitting on evidence that strongly suggests Libby was trying to hide behind the journalists--and that he did so explicitly. I could be wrong, but this may well be part of the shock and awe of the trial.

As to other details showing intent? Again, we'll see. But I am eagerly awaiting more details about how the FBI got a hold of Libby's notes.

Libby's Response

Now, there are two strategies relating to the obstruction charge which Libby's team seems to be pushing hard. First, they appear to want to focus all the attention relating to the obstruction charge on the false statements. Notably, they want to use language requiring jurors to identity which false statement they agree was false to apply to the obstruction charge as well.

However if the Court does decide to provide this instruction [reminding the jurors they need to agree on which statement was false] then it must also be given as part of the instruction for Count One. The Indictment plainly alleges that Mr. Libby obstructed justice by providing materially false statements and it would be patently unfair to allow jurors to find Mr. Libby guilty of this count if they cannot agree on what conduct was obstructive.

I'm guessing, at this point, that Libby's team is a lot more worried about the obstruction charge than the false statements charges (because they have lots of bright shiny objects named Armitage to confuse the jury with wrt the false statements charges, and, I suspect, because there is a lot of supporting evidence we haven't see yet wrt the obstruction charge). (Note too the temporal aspect of this--which would suggest that any obstruction that happened happened during the false statements--or pre-Fitzgerald--phase of the investigation.) I think what they're trying to do is yoke the obstruction charge to the false statements charge, so they can get obstruction dismissed (in spite of the additional evidence) if they can win on the false statements charge.

Libby's team is also pushing very hard (rightly, since it's a SCOTUS decision, albeit a shitty one, IMO) to include language from the Arthur Anderson decision in the jury's definition of obstruction to emphasize the importance of obstruction being a "corrupt" act. Here's the language they want to use:

That Mr. Libby's act [the alleged obstruction] was done "corruptly," that is, that he acted knowingly and dishonestly, with specific intent to subvert or undermine the due administration of justice and with consciousness of wrongdoing. An act that is done "corruptly" is one that is wrongful, immoral, depraved, or evil.

Notice that last little bit that Libby's team lifted from the esteemed legal text of Websters Dictionary? See what they're trying to do? Shorter Libby's lawyers:

Scooter Libby is the new Ollie North

If they get this language introduced (well, I'd say in any case, really) they're really going to push hard on the "diligent subordinate" route. They will tell you a story about how Scooter Libby correctly obstructed justice, because he should do that to protect the legal actions of the Vice President.

Or something like that.

They're bidding to make a case that nice Scooter Libby is not a depraved person (setting aside the bear copulating with a young girl in his Apprentice, of course--even in DC I think that might suggest one is depraved) and anything he did fits squarely in the normal acts of protecting the Vice President. Hell, these guys are so high on the concept, they might even bring in the unitary executive.

Anyway, it's fairly clear what the "what" is relating to the obstruction charge. But I don't think we've seen the bulk of the evidence proving it yet. Given the way the Libby team appears to want to respond, though, I'm guessing they're is something there.

Update: Fixed some errors per Jeff.

Comments

[looseheadprop]

EW,

Your back up! Yeah!

A nit to pick. I would be very surprised if Team Fitz tries o introduce the Aspen letter. You may recall that PAt expressly gave permision to Libby to contact Judy directly and said that such conduct would not be considered obstruction.

Libby abused that permission, for sure, but I would be surprised to see Pat try to use it anyway b/c is will draws howls of "entrapment" that will muddy up the rest of his case.

That being said, I was shocked that a group of lawyers as experienced as Team Irving's would let that letter go out the door the way it was. That was a real breach of faith with the prosecution who was trying to take them at their word. In future, who--judge or opposing counsel--is going to be inclined to take any of these lawyers at their word?

In my profession, if your proffer proves worthless and in bad faith, you ability to help other clients erodes.

[cboldt]

The indictment pretty well lays out the nature of the "hiding" that the grand jury considered to be obstructive, and it all has to do with Libby's role - not with hiding a "smear campaign" or "conspiracy involving Cheney." The issue between Libby and investigators has to do with what Libby wanted investigators conclude as to Libby's awareness that Wilson's wife worked at the CIA, at the time Libby had conversations with Russert, Cooper and Miller.

[emptywheel]

Fair enough, LHP, but that doesn't mean he can't reference the August 2003 meeting (how ironic would it be if by including that reference, Libby revealed a meeting where he and Judy had spoken about this?).

cboldt

Right--I agree the actions that served to obstruct are clear in the indictment. But the question is to why. By trying to mislead the investigators, what was LIbby trying to accomplish? What crime was he trying to hide? The Cheney stuff is critically important, as I said, because if he got the Plame info through classified channels, it means IIPA could become viable. And all the smear campaign clearly goes to intent--if Edelman was willing to leak stuff in late June, then it suggests an intent to leak stuff on the Wilsons. Again, critically important to IIPA.

[emptywheel]

LHP
One more thing. It was just Tate at that point, not quite the hard hitter the rest of the team is. He pretty clearly walked right up to the line of obstruction himself, which is why, I guess, you hire your old colleague to defend you.

[Jeff]

I do believe Fitzgerald intended to argue that Libby obstructed justice to hide Cheney's role--at least before Libby called Cheney to testify (though I still think it's likely).

I'd think that Libby's announcement that he intended to call Cheney would make it more likely that Fitzgerald would argue that Libby obstructed to hide Cheney's role, since that argument seeks to cast doubt on Cheney's own testimony, which will undoubtedly support Libby and may even contradict the testimony of key prosecution witnesses, especially Cathie Martin. However, I suppose it's possible Fitzgerald could open with that, and then Libby's defense decide not to call Cheney, thinking that Fitzgerald might be putting himself out there with a weaker case thereby. Also, it's possible that Cheney will testify in order to a little bit draw the fire away from Libby, and Fitzgerald could play into the hands of such a strategy.

[cboldt]

-- "By trying to mislead the investigators, what was LIbby trying to accomplish? What crime was he trying to hide?" --

I'm in the camp that doesn't think he has to be hiding a crime or a conspiracy, in order to explain his motive. Although the presence of conspiracy or risk of criminal charge provides even more motive. People lie about independent actions that aren't criminal, often. (I wasn't at the bar, honest honey).

Libby could have been on a lone-wolf on a mission to discredit Wilson, or one of several independent agents. Anyway, whatever he was trying to hide, making investigators think that he didn't know Wilson's wife worked at the CIA (except for the forgotten Cheney conversation), investigators will lose interest in Libby.

And while mixing up his various contacts with reporters is interesting, a bunch of smoke on the rumor scene is just that, smoke, a diversion from the essence of the charge. Libby wants investigators to conclude that Libby had no "official" awareness that Wilson's wife worked at the CIA. Libby's problem lies in the divergence between what official sources told him, and what he told investigators about those official sources (he only told investigators about the forgotten Cheney conversation, and that only after being refreshed with his notes).

[cboldt]

-- if he got the Plame info through classified channels, it means IIPA could become viable. --

I personally doubt that, for many reasons. The presence of her identity on the INR results in failure of the government to take measures to preserve her "covert status." Libby would have to be aware of her holding "covert" status, and I doubt that was present either.

[Jeff]

A few minor things.

It's Robert Grenier, not Roger. I'm very curious to see what Grenier has to say, since it appears that Fitzgerald was not aware of his role in the matter when Fitzgerald submitted his affidavit on 8-27-04.

I do believe the Edelman conversation is July 19 or after; it could've been that day, though I'm not positive on that.

I think it's been established that Martin heard about Plame from Bill Harlow at CIA.

Libby didn't exactly ask Addington for more information; he asked Addington what more information there might be at the CIA if an employee were involved in her spouse's trip abroad.

Though it's not 100%, it also now appears that Libby acnowledged his June conversation with Cheney from the outset of the investigation, having reviewed his notes already.

[Jeff]

I personally doubt that, for many reasons.

Well, whether you're right or not, it's pretty clear that the investigation itself disagreed with you, though it's possible the potential violations were not of IIPA specifically but of other statutes. The indictment, p. 20, has an excerpt from the March 24, 2004 grand jury session with Libby, where Libby is asked the following question:

Did the fact that you knew that the law could turn, the law as to whether a crime was committed, could tunr on where you learned the information from, affect your account for the FBI when you told them that you were telling reporters Wilson's worked at the CIA but your source was a reporter rather than the Vice-President?

The fact that Libby's answer - No, it's a fact. It was a fact, that's what I told the reporters. - is specifically included as one of the falsities he's charged with in this perjury count indicates that it mattered too.

[cboldt]

-- Libby is asked the following question ... --

I don't think the question can be fairly read as an unequivocal statement that Plame was covert. At most it's a statement that the investigator was looking into the possibility of a leak of classified information.

I read the question more as a question of motive for Libby to lie. "Did you lie to the FBI because you thought you might have disclosed classified information?"

Libby's answer says "No." Implying (as is clear from reading the follow-up question) "I thought it wasn't classified because I only heard it from reporters - I didn't hear it from an official source."

Whatever smokescreen the CIA has erected around Plame's actual status won't be made public - state secret. So the two opposing camps -- "She was covert," "No she wasn't" -- will have an issue in perpetuity.

[margaret]

Whatever smokescreen the CIA has erected around Plame's actual status won't be made public - state secret. So the two opposing camps -- "She was covert," "No she wasn't" -- will have an issue in perpetuity.

The CIA was(is) not happy apout Plame being exposed. They lost someone valuable in a place were she was needed at a crucial time. I can't imagine that the CIA will not find a way to "clear" the "smokescreen" a bit to aid in prosecution of the people who outed her...and, I still believe that Fitzgerald will end up nailing that OVP crew for treason for doing so. (I still believe in God, Santa Claus and the tooth fairy, because there has to be some justice in this stinking world.)

[Jeff]

cboldt

The point I was trying to make is: the grand jury clearly suspected that Libby might have lied to cover up the fact that he got Plame info through classified channels and he knew that could expose him to charges on the underlying acts. That of course doesn't definitively answer whether Plame was covert under IIPA or whether Libby was indeed vulnerable to underlying charges, whether under IIPA or another statute. But the grand jury certainly suspected that Libby feared as much.

[viget]

I think I agree with cboldt on this and would note that Fitz's infamous footnote 15 in his Aug 27, 2004 affy seems to support that. Unfortunately, a lot of people have glommed onto Judge Tatel's (erroneously, imho) interpretation of this footnote. For the record, here is what Pat Fitzgerald said in n15:

If Libby knowingly disclosed information about Plame's status with the CIA, Libby would appear to have violated Title 18, United States Code, Section 793 if the information is considered "information respecting the national defense." In order to establish a violation of Title 50, United States Code, Section 421 [IIPA], it would be necessary ham) were making veiled threats around indictmentto establish that Libby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years. To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.

(emphasis mine)

So, from this note, it seems like Fitzgerald was more interested in pursuing Espionage Act violations regarding the passing of classified info important to the national defense, rather than IIPA. Now, I don't know if he has since come up with enough evidence to prove that Libby knew Plame was covert, but I also suspect that even if he did, trying to present that kind of case in court would be incredibly susceptible to greymail attempts.

I would also submit that Fitz wasn't interested in compelling Miller's testimony to necessarily prove that IIPA was on the table again, as Tatel's opinion seems to suggest. Rather he wanted to see if Libby leaked any classified info to Miller wrt Plame's employ by the CIA, which itself was classified, in order to prosecute under Espionage act. I don't know why he specifically decided not to indict there, maybe there was confusion whether or not Cheney "insta-declassified" Plame's employ info, or again, it would just have been too susceptible to greymail.

I would also take issue with cboldt's statement, "The presence of her identity on the INR results in failure of the government to take measures to preserve her 'covert status.' " I agree with EW on the substance of the INR memo, it was a red herring. Just because someone's employ at the CIA is classified info, doesn't necessarily make them a covert agent. I'm sure there are analysts who have never done any kind of field work (and thus not protected under IIPA) whose employ at the CIA might be classified info, given their area of expertise. In other words, the INR memo tells us nothing about whether or not she was "covert" under IIPA, and thus nothing can be concluded about the govt's failure to hide her identity implying that she must never have been covert in the past.

In the end, I think that absent any kind of smoking gun evidence from Cheney or Libby's notes, Fitz found IIPA prosecution fraught with too much peril and probably too susceptible to greymail. I'd be curious to understand exactly why he declined to prosecute under Espionage, especially given that he was very keen on interviewing Miller for that very purpose; I remember that a lot of prom Repubs (especially Lindsey Graham) making veiled threats about this opening up the dike to all kinds of frivolous prosecutions about passing classified info around, maybe that had something to do with it.

[pollyusa]

Here is what Fitzgerald had to say about the Espionage Act

FITZGERALD: [...]And all I'll say is that if national defense information which is involved because her affiliation with the CIA, whether or not she was covert, was classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espionage Act.

That is a difficult statute to interpret. It's a statute you ought to carefully apply.

I think there are people out there who would argue that you would never use that to prosecute the transmission of classified information, because they think that would convert that statute into what is in England the Official Secrets Act.

[...]

FITZGERALD: I don't buy that theory, but I do know you should be very careful in applying that law because there are a lot of interests that could be implicated in making sure that you picked the right case to charge that statute.
Fitzgerald Press Conference 10/28/05

[cboldt]

-- the grand jury clearly suspected that Libby might have lied to cover up the fact that he got Plame info through classified channels and he knew that could expose him to charges on the underlying acts --

I more or less agree with that. That's why they asked whether "the fact that you knew that ... whether a crime was committed, could turn on where you learned the information from" would affect his account to investigators. If he learned from a source that gives classified information, he might be charged with leaking classified information. That's one of several conditions, another being that that source gives him classified information.

The "or less" aspect would be that Libby might have lied to cover up the fact that he got Plame info through classified channels if he thought leaking Plame might expose him to charges on the underlying acts.

Libby's position with investigators short circuits all of the "did Plame's employment with the CIA have some protected status" inquiry. He claims he didn't obtain the information through channels authorized to handle classified information, except for the forgotten conversation with Cheney.

[Jeff]

Libby's position with investigators short circuits all of the "did Plame's employment with the CIA have some protected status" inquiry. He claims he didn't obtain the information through channels authorized to handle classified information, except for the forgotten conversation with Cheney.

Admittedly, I'm slow, but this is completely baffling to me. That's Libby's claim. Investigators were probing whether it was a lie, which is obviously not exclusive of a probe into her status or anything else.

[tryggth]

Thanks EW.

Just reread count 1 of the indictment with your backgrounder in mind. I think count 1 is going to be pretty easy for Fitz. He is going for the expansive "corrupt" of interfering with GJ's determination of the bullet points of the GJ objectives.

Signing off, Jr. Constitutional lawyer tryggth. :)

[cboldt]

-- Investigators were probing whether [it] was a lie, which is obviously not exclusive of a probe into her status or anything else. --

[it] (the alleged lie) is that he didn't obtain the information through channels authorized to handle classified information.

And you're right, that doesn't preclude the FBI or grand jury from looking into whether or not "Wilson's wife works at the CIA" was classified information. But my hunch is that the investigators worked from a presumption that "Wilson's wife's worked at the CIA" was classified information. Otherwise they wouldn't be trying to figure out who divulged that Wilson's wife worked at the CIA.

[emptywheel]

I can't update right now--but Jeff is right, I believe, on all his corrections--thanks Jeff!

[emptywheel]

cboldt

I agree that they haven't proved an IIPA short of connecting Cheney up. My point is they obstructed the investigation that might have resulted in finding out IIPA (With Cheney, they'd have 3 of 4 criteria for IIPA, less the covert).

[Jeff]

But my hunch is that the investigators worked from a presumption that "Wilson's wife's worked at the CIA" was classified information. Otherwise they wouldn't be trying to figure out who divulged that Wilson's wife worked at the CIA.

Still baffling. It wasn't a presumption. They were told as much by the CIA. They had evidence for that information.

If you're trying to suggest that the suspicion that Libby lied led them to the belief that she was classified, because he had to be lying about something, that's just wrong. If you're suggesting that the suspicion that Libby was lying led them not to examine carefully enough whether she was really and truly classified, and whether she was covert under IIPA, I suppose that's possible. I doubt it for a number of reason, including the fact that Fitzgerald had a component of his team whose job it was to examine statutes and their applicability, which requires examining the relevant substance of the investigation, which would include her status.

And though I don't expect anyone to ever agree with me, it is my interpretation of the famous footnote in the 8-27-04 affidavit that Fitzgerald was precisely signalling his belief that he could make a strong case that Plame was covert under the IIPA. Note that that is a different claim than saying I agree with it. Not only do I not have enough information to make that judgment, obviously, but it does look like Fitzgerald has a rather aggressive interpretation of the statute, one which I am not inclined to agree with. But Fitzgerald is well-known for being an aggressive prosecutor.

[cboldt]

-- Still baffling. It wasn't a presumption. They were told as much by the CIA. --

Call it what you want then. I'm not attached to the word "presumption." The investigator didn't investigate that angle. They took it as true. They presumed it was true. They didn't question the contents of the referral. The investigation sheds no light on the question. The investigation wasn't on that question. The indictment doesn't get to the ultimate truth or falsity of that question.

-- If you're trying to suggest that the suspicion that Libby lied led them to the belief that she was classified --

No. Quite the opposite. I'm saying the investigators "had the belief" that "Wilson's wife works at the CIA" was classified information. They "had the belief" on faith, if you will.

-- If you're suggesting that the suspicion that Libby was lying led them not to examine carefully enough whether she was really and truly classified --

I'm saying I see no evidence that they DID examine that question. The contentions are phrased "if she was."

As you pointed out, the investigators were told by the CIA - what are they going to do, call the CIA out as wrong?

[cboldt]

-- I agree that they haven't proved an IIPA short of connecting Cheney up. My point is they obstructed the investigation that might have resulted in finding out IIPA (With Cheney, they'd have 3 of 4 criteria for IIPA, less the covert). --

Well, I don't want to taken as holding that IIPA is proved short of connecting Cheney up. I think even if Cheney is connected up, there is no violation of the IIPA, and no violation of the Espionage Act either.

But IF (that's one of those important words, I'm talking a hypothetical that I don't think exists) Plame was covert, Libby can commit an IIPA violation without hearing from Cheney.

I think that if Libby and Rove had told the truth to the FBI and the grand jury, that Fitz would have exited the scene with a "I find no violation of the law" report.

I'm not saying those things with the intention of swaying anybody to my point of view - I just took your comment as misunderstanding what my point of view is, and am simply restating my point of view on the subject in a few different ways. All of this is, for what it's worth, basically irrelevant to the charges of false statements, perjury and obstruction.

[emptywheel]

Let's try this.

If Plame was covert, Libby can commit an IIPA violation IF he leaked her name intentionally and IF he did so knowing by leaking her identity he would be leaking her identity. This is true, IF Libby learned of Plame's ID through acceptable classified channels.

Fitzgerald has emphasized in questioning that the latter (learning of it from Cheney, not journalists) is one of the key things he was asking Libby.

Ditto has Fitz emphasized that Libby's lie relates to whether he knows Plame was covert or not.

In other words, the charges focus very specifically on two of the requirements for an IIPA charge. That leads me to believe that 1) Fitz is pretty sure she was covert (though he doesn't have evidence he can introduce to prove Libby knew it), and 2) Libby told precisely the lies he would have to to avoid an IIPA violation.

It strongly suggests, I would suggest, that not only Fitz, but Libby, knew she was covert.

[cboldt]

Most pieces of information have more than one possible application, and the only point I'm making is that the evidence we have (as observers) is equivocal on the point of "Wilson's wife works at the CIA" having some classified quality.

-- Fitzgerald has emphasized in questioning that the latter (learning of it from Cheney, not journalists) is one of the key things he was asking Libby. --

One take on this line of question is to challenge Libby's contention that "he forgot he heard about Wilson's wife." Fitz' is not saying, you'll notice, that Libby lied about hearing it from Cheney - Libby admits hearing it from Cheney. Fitz is saying "you heard it from Cheney, it's on a topic that was important to Cheney, therefore I doubt that you forgot that Mrs. Wilson works at the CIA."

-- Ditto has Fitz emphasized that Libby's lie relates to whether he knows Plame was covert or not. --

One take on this line of question is that Libby had a motive to conceal that he leaked to Miller (or any other reporter). If he thought he was in legal jeopardy for leaking "Wilson's wife works at the CIA," then he has a motive to lie, to cover up the possibility. Notice that I phrased that in terms of "he thinks [maybe] he was in legal jeopardy." Libby's state of mind was probably uncertain when he was interviewed by the FBI, somewhere on a scale from being certain she's not covert (no "avoid criminal prosecution" motive) to being certain he's outed a covert agent. Fitzgerald is trying to paint Libby closer to the "knows he outed an agent" end of that scale, in order to give Libby a motive to lie to investigators.

None of that precludes Plame being a covert agent.