The prosecutor's brief: what does Patrick Fitzgerald know? When did he learn it? And other questions.

AT various times during the last two years, official Washington has been obsessed with the CIA leak investigation--while at the same time knowing almost nothing about it. Who leaked CIA employee Valerie Wilson's name to columnist Robert Novak? Was special prosecutor Patrick Fitzgerald going in this direction--or that direction? What about Karl Rove? Nobody really knew the answers, at least nobody outside Fitzgerald's office.

But that changed in late January, when the court handling the case released a number of motions and letters between Fitzgerald and the legal team representing I. Lewis Libby, the former vice-presidential chief of staff who is charged with perjury, obstruction of justice, and making false statements. The documents that have been made public--and there will be more in the days to come--give us a glimpse inside the case that we've been hearing so much uninformed speculation about for so long. And they reveal a lot about not only the investigation, but the investigator too.

The documents outline an ongoing fight between Fitzgerald and the Libby defense over how much information Fitzgerald should be forced to give Libby before trial (now scheduled for early next year). That's not surprising. Libby's lawyers are using the time-honored defense tactic of asking for the kitchen sink; they appear to want virtually everything Fitzgerald has uncovered in the course of his investigation. For example, they have asked for copies of the highly classified Presidential Daily Brief for nearly a year spanning 2003 and 2004--material that Fitzgerald has said he doesn't even have. On an issue like that, a judge is unlikely to rule in Libby's favor.

But Libby has made two relatively simple requests that seem to go to the heart of the case--and Fitzgerald is resisting both furiously. The first request is for evidence that Valerie Wilson was an undercover CIA agent at the time she was exposed in Novak's July 14, 2003, column, and the second is for evidence of the damage done by the disclosure of Wilson's name. Fitzgerald has never released any evidence on either question, at least not to the public.

But the new documents, together with his public statements in the past, suggest that the facts of the case might not be entirely clear-cut.

SEEKING DISCLOSURE

Fitzgerald's original assignment from the Justice Department was to investigate "the alleged unauthorized disclosure of a CIA employee's identity." In particular, he began by looking for a possible violation of the Intelligence Identities Protection Act, which makes it illegal for people with access to intelligence to knowingly reveal the name of a covert CIA officer. But just a few months into his investigation, Fitzgerald realized he probably wouldn't be able to prosecute anyone under the Identities Act. In a recently released affidavit from August 2004, Fitzgerald wrote, "To date, we have no direct evidence that Libby knew or believed that [Wilson] was engaged in covert work." In February 2005, a federal judge wrote that charges under the Intelligence Identities Protection Act were "currently off the table for lack of evidence."

Later in the investigation, news accounts reported that Fitzgerald was exploring whether there were any violations of another law, the Espionage Act, which forbids the unauthorized disclosure of classified information, like war plans or troop movements. In the end, Fitzgerald did not charge Libby with that, either, but he did write, in the Libby indictment, that at the time of the Novak column "Valerie Wilson was employed by the CIA and her employment status was classified."

So what had happened to "covert"? At Fitzgerald's October 28, 2005, news conference announcing the indictment, a reporter asked, "Can you say whether or not you know whether Mr. Libby knew that Valerie Wilson's identity was covert and whether or not that was pivotal at all in your inability or your decision not to charge under the Intelligence Identity [sic] Protection Act?" In his answer, Fitzgerald pointedly avoided applying the word "covert" to Wilson. "I am not speaking to whether or not Valerie Wilson was covert," he said, "and anything I say is not intended to say anything beyond this: that she was a CIA officer from January 1st, 2002, forward. I will confirm that her association with the CIA was classified at that time through July 2003." Just to make sure, Fitzgerald added that "we have not made any allegation that Mr. Libby knowingly, intentionally outed a covert agent."

So Wilson was "classified" but not "covert." Fitzgerald was clearly making a distinction, but his semantics confused even some experts in the field. "In my experience, for someone's position at the CIA to be classified, they were undercover," says Jeffrey Smith, who served as general counsel at the CIA in the mid-1990s. "I had some attorneys who worked for me who were undercover.... I knew who was, and who wasn't, and it's a pretty bright line between people who are undercover and those who are not."

Nevertheless, since Fitzgerald had chosen to describe Wilson as "classified," Libby's defense team asked him to provide "all documents, regardless of when created, relating to whether Valerie Wilson's status as a CIA employee, or any aspect of that status, was classified" in the time period before the Novak column was published.

Fitzgerald refused. "We have neither sought, much less obtained, 'all documents, regardless of when created, relating to whether Valerie Wilson's status as a CIA employee, or any aspect of that status, was classified' at any time" during that period, he wrote. Whether that meant that Fitzgerald had some documents, but not all documents, is not clear. In any event, Fitzgerald argued that he was not required to provide any documents at all on the subject, because Libby was not charged with revealing a secret agent's identity but rather with lying to the grand jury.

Libby's defense tried again. Fitzgerald again refused. But this time, in court papers filed in mid-February, he tried another tack. He said nothing about any documents that would show Wilson was classified and argued instead that he did not have any documents to show that Wilson's status wasn't classified. "The defendant overlooks the simple fact that Ms. Wilson's employment status was either classified or it was not," Fitzgerald wrote. "If the government had any documents stating that Ms. Wilson's employment status was not classified during the relevant time--and we do not--we would produce them."

The statement left some observers slack-jawed. Nothing to show that Wilson was not classified? What does that prove? Couldn't the same be said of virtually anyone in the United States? Fitzgerald, praised by his admirers as a straight-shooter, seemed to be trying to confuse the issue rather than to clarify it.

And one more thing. Fitzgerald seemed irritated that Libby was even asking for such information. "Mr. Libby predicates his request on a single reference in the indictment to the fact that Ms. Wilson's employment status was classified during the relevant time," Fitzgerald wrote. "The defense is not entitled to every document mentioning a fact merely because that fact is mentioned in the indictment."

On the question of damage, Libby's team asked Fitzgerald to provide "any assessment done of the damage (if any) caused by the disclosure of Valerie Wilson's status as a CIA employee." Fitzgerald's answer was that "a formal assessment has not been done of the damage caused by the disclosure of Valerie Wilson's status as a CIA employee, and thus we possess no such document." Given Fitzgerald's occasional slipperiness, that led to the question of whether any informal assessment had been done. No matter; if there were such an assessment, Fitzgerald said, he would not be required to give it to Libby because Libby is charged with lying, not with revealing Wilson's identity.

Again, Libby pressed, and again Fitzgerald refused. In a second court filing, he said he had never claimed that there had been any damage done by Wilson's exposure, only that there could have been damage done.

"The actual--as opposed to potential--damage caused by the outing of Ms. Wilson is not alleged in the indictment, nor was it a focus of the grand jury investigation," Fitzgerald wrote. "The indictment alleges only that the outing of CIA employees could cause damage. The actual damage resulting from uncharged conduct is irrelevant to whether the defendant lied about his conversations with reporters."

But in his news conference announcing Libby's indictment, Fitzgerald had made clear that he believed the disclosure of Wilson's identity had done grievous damage. "Why is this a leak investigation that doesn't result in a charge?" he asked rhetorically before going into a famously convoluted sports metaphor. "If you saw a baseball game and you saw a pitcher wind up and throw a fastball and hit a batter fight smack in the head, and it really, really hurt them, you'd want to know why the pitcher did that." The leak case, Fitzgerald continued, is "a lot more serious than baseball. And the damage wasn't to one person. It wasn't just Valerie Wilson. It was done to all of us." The message was unambiguous: Whoever leaked the information had "really, really hurt" Wilson--and all Americans. Yet in his court filings, Fitzgerald backed away from his dramatic claim.

MUDDLED WATERS

What does it all mean? Well, first of all, it means that after more than two years of investigation, the public has never been told whether or not Valerie Wilson was a covert, or classified, or whatever, CIA agent at the time the Novak column was published. And in the end, it is possible that a judge will rule that Fitzgerald is on solid legal ground in keeping that secret. But at some point, Fitzgerald's refusal to release even the most basic information about the case will cast a cloud over his entire investigation. After all, didn't it begin with the allegation that someone in the Bush administration illegally exposed Mrs. Wilson in an attempt to discredit her husband, Bush critic Joseph Wilson? Certainly Fitzgerald's first task, upon receiving his assignment, was to assure himself that there was good reason to believe a crime had taken place.

Yet on that key issue, Fitzgerald appears to be trying to muddy the waters rather than clear things up. Which leads to a bigger question: If he was not prepared to say that there was even the possibility that an underlying crime was committed, why did Fitzgerald put the public through all this? His investigation has been long and costly, and it has set a terrible precedent for forcing reporters to testify under oath about their sources. Surely Fitzgerald should be able to say that, at the very least, he began with evidence that an underlying crime had been committed.

But he doesn't have to say anything at all, because he is in effect conducting a new type of investigation. He has all the power wielded by prosecutors working under the now-expired independent-counsel law, but he does not have that law's requirement that he report to the public on his findings. So even though his investigation has attracted the kind of intense public interest that probes under the independent-counsel law once attracted, Fitzgerald can go forward knowing he will never have to show whether his investigation was worthwhile to begin with. And when the attorneys for the man charged in the case ask for such evidence, Fitzgerald can tell them to get lost.

So the question remains. Has this been worth it? Right now, there are simply no publicly known answers. And Patrick Fitzgerald seems determined to keep things that way.