Published November 18, 2005
WASHINGTON – The special prosecutor who has been investigating the leak of a CIA operative's identity is continuing his probe and will present additional evidence to another grand jury, according to court papers filed Friday.
Patrick Fitzgerald declined to comment when asked whether his investigation was ramping back up after last month's indictment of a top White House aide. The term has expired for the grand jury that indicted I. Lewis "Scooter" Libby on perjury and obstruction charges.
The investigation appeared to have cooled with Libby's indictment on Oct. 28. But earlier this week, the Washington Post's Bob Woodward disclosed that he had learned the CIA operative's identity from a top Bush administration official before another journalist had published Valerie Plame's name.
The revelations from Woodward, who shared this information under oath with Fitzgerald on Monday, contradict Fitzgerald's earlier portrayal of Libby as the first government official to leak Plame's identity to reporters.
At a hearing Friday, U.S. District Judge Reggie B. Walton warned Fitzgerald and defense attorneys about making too many statements to the news media.
"I've never issued a gag order," said Walton, a former prosecutor. "I don't want to in this case."
But, Walton said, "I do have concerns that statements are being made ... usurping what ultimately I am going to have to decide about what is evidence in this case."
"I hope that a word to the wise is sufficient," the judge said.
Walton made the comments during a hearing at which Fitzgerald and media lawyers told the judge they had reached a compromise on protective orders that the prosecutor had sought for classified and unclassified evidence in the case against Libby.
In documents filed before the hearing, Fitzgerald said an order keeping evidence under wraps was needed "because the investigation is continuing and because the investigation will involve proceedings before a different grand jury" from the one that indicted Libby.
Libby, 55, Vice President Dick Cheney's former chief of staff, was charged with lying to FBI agents and a grand jury about how he learned about Plame's identity and her work at the CIA and when he subsequently shared that information with reporters.
A group of Libby's friends, colleagues and former government officials — including former CIA Director James Woolsey and ex-Republican Sens. Fred Thompson of Tennessee and Alan Simpson of Wyoming — are supporting the legal defense fund which will raise millions of dollars to cover the cost of defending Cheney's ex-aide.
Other supporters who have signed on to help include former presidential candidates Jack Kemp and Steve Forbes, said Barbara Comstock, a spokeswoman for the Libby camp.
Dow Jones & Co., The Associated Press and CNN had sought Friday's hearing to fight an earlier proposal by Fitzgerald that would have barred Libby and his legal team from publicly disclosing "all materials produced by the government."
Fitzgerald and media lawyer Theodore J. Boutrous Jr. said the final version of the orders probably won't be ready for the judge to sign until Monday.
Under the compromise outlined at the hearing, Libby's defense team cannot disclose to the media any grand jury transcripts or personal information about witnesses such as phone numbers and addresses.
Fitzgerald said he wants to keep some records out of public view because they include calendars, e-mails and telephone logs of witnesses and other people containing communications from relatives, doctors and other personal contacts.
The burden will be on the defense attorneys to ensure that they do not inadvertently give out such information.
The compromise also will bar lawyers from confirming classified evidence if it is reported in the media.
A significant portion of the evidence in the case against Libby is classified, and Fitzgerald said he is trying to get federal agencies to de-classify as much as possible.
The prosecutor told Walton that that process will be lengthy and urged the judge to stick with the current hearing schedule.
Walton said he had wanted to speed up the case but agreed not to change the next hearing set for Feb. 3.