As a prosecutor and former CIA operations officer, I found Victoria Toensing’s article, “Trial in Error” to be as outrageous as it was misleading.

The logic-defying argument advanced by Victoria “I Don’t Know Squat About Secrets” Toensing can be broken down into three major points:  that Valerie Plame Wilson was not covert; that the case itself was based on a “he said, she said” scenario; and that there need be an underlying charge for bringing perjury charges.  On all three counts of her whimsical indictment, Ms. Toensing is simply wrong.

The Libby case is not a “he said, she said” matter.  Foremost, Libby, in the exercise of his rights not to do so, said nothing.  So, Victoria, there is no “he said” in the equation.  To an actual trial practitioner, the characterization to which you refer applies to a case where there are two witnesses whose testimony is diametrically contradictory.  The reported testimony in the Libby trial sounds much more like “he lied, he lied,” times at least NINE witnesses and Libby’s people, by implication saying “he doesn’t remember.”  The only good news about this entire episode is that it didn’t, by the grace of God turn out to be a “He lied, She died.”

Second, to allege that there first must be an underlying crime to bring a perjury charge is flat wrong, and every first-year law student knows it.  Perjury is itself a crime, period.  Under the Grand Jury system, evidence is presented to a panel.  If the panel decides that a crime was committed, then an indictment is issued. If not, the case ends.  Either way, the evidence submitted must be the truth.  You don’t get to lie to a Grand Jury. That’s pretty simple, unless of course you feel that one should be free to lie and suffer no consequence – hardly an argument that should be advanced by an attorney and officer of the court.

To assert that Valerie was not covert is to assert that the CIA operates public branch offices overseas. Victoria, here’s a news flash for you – there are a lot of people in this world that don’t like the United States in general and the CIA in particular.  Anyone in the CIA traveling overseas would be as nuts as your op-ed to reveal that association. CIA officers and offices are placed all over the world.  I really don’t recall the CIA crest adorning any office or being listed in any embassy directory. Victoria, the CIA is a spy agency, it is full of spies who spy on objects of interest to the United States.  There are no non-covert spies.

To add a gloss of legitimacy, Ms. Toensing erroneously cites the law as requiring the covert agent to have had a “foreign assignment,” then concludes that Valerie was not “stationed” overseas.  Nice try.  The law uses neither of these descriptions as a basis for defining the criminal act of disclosing the identity of a covert agent. The law only requires that the agent have served overseas within the preceding five years of his or her disclosure.  CIA officers may very well serve overseas by meeting with secret sources in third countries.  The fact that they may be “stationed” or “assigned” to Washington, D.C. does not prohibit them from serving overseas by actually engaging in clandestine operations in other countries and returning thereafter to this country.  Would the purpose of the law designed to protect our agents operating overseas be served by distinguishing between the two scenarios?  If so, then Ms. Toensing, who claims to have assisted the Senate Intelligence Committee in drafting the law, did a very lousy job.

Rules of professional conduct for attorneys around the country make numerous references to truth telling both inside and outside the courtroom, e.g. “…an advocate must disclose the existence of perjury….” or, “…a lawyer shall not knowingly make a false statement of material fact or law to a third person…” 

Being either ignorant of or spinning the facts as to how our clandestine agents operate, misstating the law, and publicly excusing perjury in our legal system, raises some serious questions as to Ms. Toensing’s motivation.

Legal incompetence aside, there may have been another reason for Ms. Toensing’s misleading diatribe.

In what was probably the most insightful statement describing the motivations of the White House in outing Valerie Plame Wilson, Mr. Fitzgerald argued that to the Bush administration, Valerie “wasn’t a person…she was an argument…”  He called it exactly right!

If Valerie were viewed as a person, we would see someone who has spent her career protecting this country.  We would see a person so dedicated as to risk her own life and potentially that of her family to do so.  We would see the intelligence assets she ran who risked their own lives and that of their families.  We would see the entire situation for what it really was (and still is): a dangerous yet vitally important effort to protect the people of the United States.  Given this reality, the White House knew it couldn’t attack Valerie Plame Wilson as a covert intelligence officer.  The administration and its media spinners like Ms. Toensing would certainly lose, based on the facts of Valerie’s professionalism and years of service to her country.  As a result, Valerie became an “argument.”

But what does that really mean in the world of political operators like Karl Rove?  It means revving up the spin engines, using inaccurate words and images to skew public opinion in your favor.  One of the most successful spin tactics is an indirect or even subliminal appeal to the most base instincts, prejudices, or fears of those you are hoping to “persuade.”  These guys are really good at it.  Remember Willie Horton?  To take a recent example, look at the media hoopla over the (false) story of Senator Obama’s attendance at an Indonesian madrassa. 

The same tactic is being used on Valerie.  Let’s see:  female, blond, young, good looking… hell, she can’t be more than a secretary or a bimbo, right?  If you think this country has advanced so far that no one is predisposed to believe that, think again.  These guys know what plays.  And it really shouldn’t come as a surprise that there are some (supposedly educated) women opinion leaders who are happily manipulated into spreading this anti-female message.

So thanks, Ms. Toensing, for publicly attacking a very accomplished woman.  Thanks, too, for playing into the hands of biased individuals who don’t believe that a woman can serve her country as a covert officer and indeed be very good at it. 


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James Marcinkowski (born 1955) is a former Central Intelligence Agency (CIA) case officer and former administrative staff attorney in the Oakland County Prosecutor's Office (Michigan), and was an unsuccessful candidate in the 2006 election for the United States House of Representatives in Michigan's 8th Congressional District. He is one of the former CIA agents who has spoken about the consequences of the Plame affair.
  • JEP

    “bob woodward works for Naval Inteligence, ie, woody has a security clearance…”

    Does a security clearance give someone like Woodward “need to know” status?

    At least Woodward did not take the bait, like Novak, and break the law that was already broken by Armitage.

    But obviously, Woodward represents one more journalist who the White House considered a tool. Maybe he can live with that for now, but history will not be kind to him if he refuses to come clean.

    But unless I’m mistaken, there are thousands of people with clearances like Woody’s who would never be considered in the “need to know” loop.

  • ybnormal

    – freepatriot “bob woodward works for Naval Inteligence”

    It’s known that he DID, and SPECULATED (by some) that he STILL DOES; at least as far as I can find in public information. Do you have actual confirmation (as opposed to circumstantial speculation) you want to share?

  • TJM

    Not only did Justice agree to investigate (as they had to), but Gonzalez was the AG and got away from the issue. Jeez these people have no shame. At all.

  • freepatriot

    why wasn’t Armatige prosecuted ???

    here’s a clue

    Armatige told bob woodward

    bob woodward works for Naval Inteligence, ie, woody has a security clearance

    bet ya didn’t know that little tidbit

  • neil,

    i disagree with you about toensing not knowing better. she does know better. she’s an out and out liar.

  • Neil

    We don’t know why Fitzgerald has not charged Armitage but we do know that Libby’s lying to obstruct justice in the CIA leak case. We also know the prosecutor believes the purpose of Libby’s lies is to protect VP Dick Cheney who was the evil mastermind behind the leak. If Libby and Armitage flip and Cheney gets indicted then all the questions will be answered.

    Toensing’s Op-Ed in the WaPo is way out of line for a practicing attorney. She knows perjury is a crime. She also knows charging it can be a very effective way to get a knowledgable witness to tell the truth. On one count, Toensing is diseneguous in her assertion that Libby shouldn’t be charged with perjury because he hasn’t been charged with leaking. That’s bullsh*t and she knows it. If she were counsel for the defense she get slapped with a jury tamering charge.

    Her second assertion, that Plame was not covert, is also not true. We’ve heard this right-wing excuse for years. Why would the CIA refer this to Justice if she were not covert? Why would Justice investigate it? Why would the AG refer it to special counsel, rather than close the investigation? The highest law informcement officials in the country were convinced that the leaking of Plame’s identity was likely to be a crime of the highest order. But Toensing knows better? No, she doesn’t. She thinks otherwise but she’s shilling. That’s shameful for an officer of the court.

    I find it interesting that she abuses her credibility as an attorney to shill for a corrupt VP in the court of public opinion.

  • kim

    I’ve always believed that only a woman could have had the idea of attacking a guy’s wife in a political argument (though I’ve decided Rove might also) – Matalin and Toensing seem to me to be the people who did this for the WH.

  • oddball

    CH Truth,
    I suggest you do fact ch (checking) before you defend the indefensible.

    Are you a patriot or a pawn.

    Jim Marcinkowski

    CIA Agent
    Candidate for Congress (hopefully again)

    I just don’t get how you can give this regime respect.


    The Mafia doesn’t have squat on these guys.

    One more question CH. Where in the Constitution is it said that the Executive Branch of the United States can use all resources available to engage in a propaganda campaign against its own citizens.

    Goering would be proud.

  • dalloway

    And the underlying crime in the Clinton impeachment was… oral sex outside marriage? But wasn’t Vicky one of those screaming for Clinton’s head? Geez, it ain’t the heat, it’s the hypocrisy!

  • taters

    addendum – And apparently unbeknownst to our first commenter – some of that is in Jim’s first sentence.

  • taters

    Good point and clarification, Phoenix Woman. Jim is also a Navy vet, worked for the FBI and a prosecutor. And if I may add, highly regarded.

  • Arrrgh. And I go and butcher Jim’s last name — it’s “Marcinkowski”, dammit! Sorry, Jim!

  • CH Truth: Dick Armitage is a big fat red herring. But you knew that. Just as you knew that Jim Marcinowski is himself a retired CIA agent, and not just a mere “blogger”.

    Now run along and collect your Leadership Institute pay check like a good disruptor.

  • anwaya

    CH Truth:

    “If she really was designated as a ‘covert’ agent… and leaking her identity really was a criminal act…

    “Then why was Dick Armitage not prosecuted? Why would Fitzgerald give immunity to Ari Fleischer?”

    I am so glad you asked, CH, because the answer is quite clear: Mr. Fitzgerald is not finished yet.

    The counterargument to the (possily retroactive) “insta-declassification” of Valerie P’s identity (as Larry knew her at the CIA) will be greatly helped by the arguments made in Libby’s trial, and maybe Libby will cut a deal in exchange for Bigtime’s head…

  • leslie

    P.S. Robert, I don’t doubt that Bush Sr. said that about the Neocons. But Prescott Bush, Bush Sr’s father, did business with the Nazis during WWII. Not to mention that not all the Neocons are Jewish, such as Cheney, and some are Evangelist, such as Bush, who may believe in Armageddon, which requires everybody but Christians to die for the 2nd coming to occur. Not to downplay the similarities between the Bushies and Israel’s Likud party. But if Israel believes the Bushies are their friends….?!

  • leslie

    Your link is no good. It takes you to her show, where there are a lot of interviews to choose from. But the Cocburn interview isn’t listed under that title.

    Yes I was being sardonic. So much of Bush’s, or Cheney’s, foreign policy favors Saudi Arabia and Sunni-affiliated al Qaeda groups. While the Neocon connection to Israel is about as useful to Israel as it is the US. Because if we invade Iran, guess who the Shia and Sunnis will want to bomb first?

  • bmaz

    For CH Truth above – Fitzgerald neither said, nor inferred anything of the sort. In fact, his statements indicate that he absolutely believes that an underlying crime was committed and that perjury has interfered with his ability to prosecute it. Furthermore, Fitzgerald point blankedly stated that Ms. Plame was a classified agent working on the most critical of national security matters. Lastly, I would suggest that Fitzgerald is working in a deliberate and methodical manner, from the ground up, as good federal conspiracy prosecutors always do. It is also quite possible that certain charges have not been brouyght for the exact reason that airing them would greatly exacerbate the substantial damage already done to the CIA counter-proliferation division.

  • Robert Hume


    I’m not sure if you are being sardonic or what … but listen yourself, or buy the transcript:

  • Mary

    Amen Jim.

    “Would the purpose of the law designed to protect our agents operating overseas be served by distinguishing between the two scenarios? If so, then Ms. Toensing, who claims to have assisted the Senate Intelligence Committee in drafting the law, did a very lousy job.”

    I do have to say, though, that after reading what passed for a national paper op piece – the lousy drafting concept has some de facto support. *g*

  • Leslie

    Oh, and another thing that ticks me off is that Cheney goes to Pakistan and tells Musharraf that if he doesn’t crack down on al Qaeda, the Democrats will cut his funding. But Cheney also tells everyone the Democrats are terrorist appeasers and traitors. How can they be tough on al Qaeda and simultaneously al Qaeda sympathizers?! Isn’t the Bush administration supposed to be waging GWOT?

  • Leslie

    What stinks is, as TPM puts it: “Why did the White House sign off on the deal that has allowed al Qaeda to regroup bases on the Pakistan-Afghanistan border?”

    Do you think Cheney will rethink that deal now that he’s become a target? Somehow, I doubt reality enters into the administration’s thinking.

  • ybnormal

    Susan, I share your ‘seething’ about “…incessant reports today on the suicide attack where Cheney was in Afghanistan.”; but with a somewhat different perspective.

    Given that Cheney’s approval rating in his OWN country is within the percentage of error of Satan, wouldn’t it be expected that someone would try an attack if he’s in Afghanistan? Well, someone thought of it, and someone did it. Shoudn’t be a surprise. Cheney’s safe; but how about those who just died? Did they deserve to pay with their lives so Cheney could have a “moment” in the news? How about using the telephone for a conference call, instead of drawing fire?

    What Cheney has done is prove, on a personal level, how little he cares about the deaths of others in the pursuit of his agenda.

  • Related: I am absolutely seething about the incessant reports today on the suicide attack where Cheney was in Afghanistan.

    It made sense he’d leave the country on a “surprise” trip while the Libby trial jurors deliberated. Escape the heat. Talk up Pakistan’s terrorist problems. Normal diversion techniques.

    But this attack … I am loathe to subscribe to ANY conspiracy theory, but this stinks somehow.

  • Leslie

    Robert Hume,
    You sure H.W. didn’t mean Saudi Arabia?

  • Leslie

    I’d love to see the Washington Post publish an editorial that presents the criminal case against Cheney, Bush, Rove, Libby, Fleischer, et al for their role in exposing a CIA officer, manufacturing phony intelligence, lying us into war and then trying to cover it all up. But I won’t hold my breath.

  • Robert Hume

    This is off topic, but I’d like to let folks know how clueless our President apparently is. And how, as a result he is likely “Easily Led”, as the Washington Post once famously referred to fundamentalist Protestants.

    On the Diane Rehm show yesterday Andrew Cockburn reported that a few months ago George W. asked his Dad who the neocons were. George H.W. replied approximately “Do you want the names or the identity?”

    W. replied “The identity”. H.W. replied “Israel”.

  • jharp

    “…a lawyer shall not knowingly make a false statement of material fact or law to a third person…”

    Any chance of the Bar Association taking action.

    Wouldn’t that be beautiful.

  • taters

    Thank you, Jim,
    For your past and present service to our country. Excellent, absolutely excellent. It was a pleasure to meet you in Royal Oak, ( and your buddy from the Bureau )I was the one that introduced myself as “some fella in DC named Larry Johnson told me to say hello.” The two candidates I was proudest to have supported in ’06 were you and Jim Webb. And that hasn’t changed one bit.

    Kind Regards,
    Bobby Murray
    Detroit, MI

  • JM

    Thanks, Jim, for your heartening defense of Plame, and for shooting down the idiot spin tactics of tools like Toensing.

    One tiny correction to your post, though, and I’m loathe to even mention it, as it may distract from your otherwise spot on post.

    Senator Obama did indeed attend a “madrassa” in Indonesia when he was a kid. As many have pointed out, however, “madrassa” is simply the Arabic word for school. The “madrassa” that Obama attended turned out to be a well-funded, high-quality elementary school that happened to operate in a predominantly Muslim country. So, yeah, it was a “madrassa;” and it was a very nice school that did not teach religion or indoctrinate kids in anything other than the three Rs.

    I think that my point serves to reinforce yours about how “[o]ne of the most successful spin tactics is an indirect or even subliminal appeal to the most base instincts, prejudices, or fears of those you are hoping to ‘persuade.'”

    The Bush Administration’s Spin Machine will stop at nothing, and will smear anyone, to instill fear in the general public in order to maintain their ill-gotten power.

  • oldtree

    the hack in question is a notable part of the conspiracy, there is no doubt. her “friend of the court” brief is of questionable status now that she has acted to tamper with the jury in this matter.
    perhaps, in a real world, or the one we remake, that people like this will answer to their crimes. Perhaps, she will be indicted as a part of the conspiracy

    there are a great deal of people that abuse free speech by committing crimes while exercising the 1st. where the 1st should be protected, hiding behind it for such purpose needs to be prosecuted.

  • As long as tricky Vicky keeps up her attack it keeps the focus off this gaggle, because as they recognize, if Libby is found guilty (please God) then Matalin, Vicky, Barbara & the Libby defense fund group as well as Cheney will be perceived as guilty by association as well. This is a house of cards and it’s taking every bit of dishonest rhetoric they can muster – and it is costing them – as all of us align their dishonest reasoning here with their pleas to trust that same reasoning in our foreign policies.
    Great post Jim, thanks.

  • If she really was designated as a ‘covert’ agent… and leaking her identity really was a criminal act…

    Then why was Dick Armitage not prosecuted? Why would Fitzgerald give immunity to Ari Fleischer?

    Fitzgerald himself has in his own cryptic manner stated that there was no proven underlying crime. His actions of not charging anyone would most certainly reinforce his verbal message.

    Why would you as a blogger know more than Fitzgerald the prosecutor?

    Just curious…