In fact, her being classified -- that is, that her work was a government secret -- did not in itself meet the standard required for prosecution of the leaker (former Deputy Secretary of State Armitage) under the Intelligence Identities Protection Act of 1982. That statute limits prosecution to exposers of covert intelligence activities overseas, whose revelation would undermine U.S. intelligence. That is why Fitzgerald did not move against Armitage.
Some questions asked me in television and radio interviews after the verdict implied that I revealed Armitage's name to Fitzgerald. Actually, in my first interview with Fitzgerald after he had been named special prosecutor, he indicated he knew Armitage was my leaker. I assumed that was the product of detective work by the FBI. In fact, Armitage had turned himself in to the Justice Department three months before Fitzgerald entered the case, without notifying the White House or releasing me from my requirement of confidentiality.
On Fox's "Hannity & Colmes" Tuesday night, super-lawyer David Boies said Fitzgerald never should have prosecuted Libby because there was no underlying criminal violation. Boies scoffed at Fitzgerald's contention that Libby had obstructed him from exposing criminal activity. Boies, who represented Al Gore in the 2000 election dispute, is hardly a Bush sympathizer. But neither is he a Democratic partisan trying to milk this obscure scandal.
George W. Bush lost control of this issue when he permitted a special prosecutor to make decisions that, unlike going after a drug dealer or mafia kingpin, turned out to be inherently political. It would have taken courage for the president to have aborted this process. It would require even more courage for him to pardon Scooter Libby now, not while he is walking out of the White House in January 2009.