From their editorial calling for the pardon of Scooter Libby
The problem was that Fitzgerald not only did not charge Libby or anyone else with those underlying crimes, he never even offered any evidence in court that those crimes, as carefully defined by the statutes involved, ever happened. His throw-the-book-at-him sentencing recommendation contradicted the conclusion reached by probation officials, who in their pre-sentencing report pointed out that “the defendant was neither charged nor convicted of any crime involving the leaking of [Valerie Plame Wilson’s] ‘covert’ status.”
Going one step farther, Fitzgerald also argued that Mrs. Wilson was, without any doubt, a covert CIA agent as defined by the Intelligence Identities Protection Act. In court filings, he offered what he said was a CIA-authored summary of her job status affirming that, at the time her name was revealed by Novak, she was covert, and that the CIA was taking “affirmative measures to conceal her identity,” as required by law. But many months ago, when Libby’s defense team was begging for such information, Fitzgerald refused to provide it. He pointedly declined to call Plame “covert.” He said her job status was irrelevant to the case against Libby. He even argued that it was irrelevant whether Mrs. Wilson worked at the CIA at all. Agreeing with Fitzgerald, Judge Walton barred both sides from discussing Mrs. Wilson’s status at the trial.
But, as even the ridiculous conservatives at the New York Sun reported
Mr. Libby's attorneys are also seeking to exclude from the trial any talk that Ms. Plame's employment at the CIA was classified or covert. Such a ruling would leave jurors with little or no understanding of why Mr. Fitzgerald's investigation began. Instead, Mr. Libby's trial would become a sterile, seemingly-random discussion of inconsistent recollections between a former White House official and several reporters about conversations four years earlier.
However, the defense argued that such a constrained trial is the necessary result of the government's refusal to hand over documents detailing the secrecy surrounding Ms. Plame's employment. "It would be manifestly unfair to allow the government to put into issue a matter that Mr. Libby has been denied any real opportunity to investigate and contest," the defense lawyers wrote.
In other words, Libby's lawyers attempted to use a "graymail
" defense strategy, but were denied that opportunity. Therefore, they chose to block any discussion of Plame's status including, one supposes because of its mention of October 2005 as the date they chose to declassify her status, the very CIA summary
Fitzgerald presented for sentencing.