diGenova & Toensing, LLP

Richard Armitage has finally emerged from the cover-my-backside closet, "apologizing" on CBS for keeping quiet for almost three years about being the original source for Robert Novak's July 14, 2003 column stating that Joe Wilson's wife, Valerie Plame, worked for the CIA and had suggested him for a mission to Niger. He disingenuously blames his silence on Special Counsel Patrick Fitzgerald's non-legally based request -- any witness is free to talk about his or her testimony -- not to discuss the matter.

Put aside hundreds of thousands of dollars of taxpayer funds squandered on the investigation, New York Times reporter Judith Miller's 85 days in jail, the angst and legal fees of scores of witnesses, the White House held siege to a criminal investigation while fighting the war on terror, Karl Rove's reputation maligned, and "Scooter" Libby's resignation and indictment. By his silence, Mr. Armitage is responsible for one of the most factually distorted investigations in history.

There is a reason the old Watergate question -- What did he know and when did he know it? -- has become part of our investigative culture. It provides a paradigm for parsing a complicated factual scenario.

• Joseph Wilson: In July 2003, when he demanded an investigation of a White House cabal for violating the Intelligence Identities Protection Act by "outing" his wife, Mr. Wilson knew Ms. Plame did not meet the factual requirements for covert status under the Act. She was neither covert at the time of publication nor had a covert foreign assignment within five years. He acknowledged so in his book: "My move back to Washington [in June 1997] coincided with the return to D.C. of a woman named Valerie Plame." As the Senate negotiator for this 1982 Act, I know a trip or two by Ms. Plame to a foreign country while assigned to Langley, where she worked in July 2003, is not considered a foreign assignment. I also know covert officers are not assigned to Langley.

• Richard Armitage: Mr. Armitage now claims he only knew on Oct. 1, 2003 that he was Mr. Novak's source. We should question that claim in light of Mr. Novak's account this week that Mr. Armitage "made clear he considered [the information about Ms. Plame] especially suited for my column."

Mr. Armitage also knew he had met with Bob Woodward on June 13, 2003, telling him about Mr. Wilson's wife's CIA employment and her role in her husband's trip to Niger. But when the FBI interviewed Mr. Armitage on Oct. 2, he admitted to the Novak conversation only, notably forgetting meeting with one of our country's premier investigative reporters. By attributing his longtime silence to Mr. Fitzgerald's request, Mr. Armitage must have forgotten Mr. Fitzgerald was not appointed until Dec. 30, 2003. If Mr. Armitage had come forward during those three months, there might never have been a special counsel.

• Patrick Fitzgerald: What Mr. Fitzgerald knew, and chose to ignore, is troublesome. Despite what some CIA good ol' boys might have told Mr. Fitzgerald, he knew from the day he took office that the facts did not support a violation of the Act; therefore, there was no crime to investigate. Although he claimed in Mr. Libby's indictment that Ms. Plame's employment status was "classified," Mr. Fitzgerald refuses to provide the basis for that fact and, even if true, can point to no law that would be violated by revealing a "classified" (not covert) employment. It was this gap in the law that created the need to pass the Act in the first place.

Mr. Armitage intimated on CBS that, although his "chitchat" was careless, there was perhaps "a conspiracy" in the White House to retaliate against Mr. Wilson. However, Mr. Fitzgerald knew (prior to indicting Mr. Libby) that Mr. Armitage was Mr. Novak's original source, Mr. Libby never spoke to Mr. Novak, and Messrs. Rove and Libby had merely responded to reporters' questions. Hardly acts of initiating a criminal conspiracy. Mr. Fitzgerald knows it is not criminal to discredit a mendacious attack on the president. There was a crime only if Ms. Plame were covert and the person revealed that fact with knowledge of her status. Mr. Fitzgerald learned during the investigation that not one person had any basis to think she was covert. Just ask Mr. Armitage, who asserted in his apologia, "I had never seen a covered agent's name in any memo . . . in 28 years of government."

During the investigation Mr. Fitzgerald learned that a former New York Times reporter, Cliff May, twice told the FBI that, prior to Mr. Novak's column, he had heard in an offhand way from a nongovernment employee that Mr. Wilson's wife worked for the CIA, a clear indication that her employment was known on the street. Ditto columnist Hugh Sidey, who wrote that Ms. Plame's name was "knocking around in the sub rosa world. . . for a long time."

Mr. Armitage, who came forward after Mr. Libby was indicted, was told in February 2006, after two grand jury appearances, he would not be indicted. Mr. Rove, however, after five grand jury appearances, was not informed until July 2006 he would not be charged. Mr. Fitzgerald made the Rove decision appear strained, a close call. Yet of the two men's conduct, Mr. Armitage's deserved more scrutiny. And Mr. Fitzgerald knew it. Each had testified before the grand jury about a conversation with Mr. Novak. Each had forgotten about a conversation with an additional reporter: Mr. Armitage with Mr. Woodward, Mr. Rove with Time's Matt Cooper. However, Mr. Rove came forward pre-indictment, immediately, when reminded of the second conversation. When Mr. Woodward attempted to ask Mr. Armitage about the matter, on two separate occasions pre-indictment, Mr. Armitage refused to discuss it and abruptly cut him off. To be charitable, assume he did not independently recall his conversation with Mr. Woodward. Would not two phone calls requesting to talk about the matter refresh his recollection? Now we also know Messrs. Armitage and Novak have vastly different recollections of their conversation. Isn't that what Mr. Libby was indicted for?

What Mr. Fitzgerald chose not to know is even more troublesome than what he chose to ignore. When Mr. Armitage came forth in October 2003, why did Mr. Fitzgerald not request his appointment calendar from early May, the time the first story appeared in the national press about an unnamed former ambassador's trip to Niger? Mr. Fitzgerald demanded this type of information from White House personnel. Just think, if he had done so of Mr. Armitage, he would have learned prior to indictment about Mr. Woodward's appointment.

By the time he indicted Mr. Libby on Oct. 28, 2005, Mr. Fitzgerald knew two conflicting facts about the classified nature of the Niger trip: since at least early May 2003, Mr. Wilson was discussing his Niger trip with the press (Nicholas Kristof, the New York Times) and claimed in his July 2003 NYT op-ed that his mission was "discreet, but by no means secret." Yet, the indictment states that around June 9, 2003, the CIA sent "classified" documents to the vice president's office discussing "Wilson and his trip to Niger." If the trip was classified for the vice president, why was it declassified for Mr. Wilson? Did Mr. Wilson violate any law by revealing his trip or did Mr. Fitzgerald choose not to know?

Did Mr. Fitzgerald subpoena Ms. Plame? He could have asked her why, if she were truly covert, was she attending an Eastern Shore meeting in May 2003 with Democratic senators. The first journalist to reveal Ms. Plame was "covert" was David Corn on July 16, 2003, two days after Mr. Novak's column. The latter never wrote, because he did not know and it was not so, that Ms. Plame was covert. However, Mr. Corn claimed Mr. Novak "outed" her as an "undercover CIA officer," querying whether Bush officials blew "the cover of a U.S. intelligence officer working covertly in . . . national security." Was Mr. Corn subpoenaed? Did Mr. Fitzgerald subpoena Mr. Wilson to attest he had never revealed his wife's employment to anyone? If he had done so, he might have learned Mr. Corn's source.

It is not just Mr. Armitage who should apologize. So should Joe Wilson and Pat Fitzgerald.

Ms. Toensing was chief counsel for the Senate Intelligence Committee and deputy assistant attorney general in the Reagan administration.