I believe Patrick Fitzgerald was shocked (and possibly awed as well) when, in the course of questioning Libby before the grand jury about his July 8 meeting with Judy Miller in the St. Regis Hotel , he stumbled upon the amazing insta-declassification of the National Intelligence Estimate (NIE). Today in the courtroom, the jury heard audio of Fitzgerald asking Libby no fewer than 17 questions on the topic. Here’s a (paraphrased) account:

F: Was it a declassified or a classified document that you were authorized to release to Miller?

L: Declassified, because the President authorized it.

F: Had you ever been authorized before to talk with the press about a classified document?

L: No.

F: Have you been authorized to do so since then?

L: No.

F: This was the only time in your career when this happened?

L: Yes.

F: How clear were you in describing the situation when you consulted with Addington about the legality of what you were contemplating?

L: Addington told me that if the President tells you to leak something, then it’s declassified.

F: You told him that you were going to talk to the press about a classified document?

L: Yes.

F: Did you ask whether the President could overrule the DCI (Director of Central Intelligence) if the DCI refused to declassify a document?

L: He said the President has the authority.

F: Did Addington express any reservations [regarding the new insta-declassification doctrine]?

L: No.

F: What did the Vice President tell you regarding the classification status of the portions of the NIE that he wanted you to leak?

L: He said he had talked to the President, and that the President had authorized it.

F: When did this authorization happen?

L: I don’t know.

F: Was it the day before July 7? [Libby had said he set up the July 8 meeting with Miller on July 7]

L: Maybe. Or it might have been earlier.

F: Who else knew that it had been declassified?

L: Only the President, the Vice President, and me.

F: Was the CIA immediately notified that the NIE had been declassified?

L: No.

F: Did you participate in a meeting with Hadley, Rice, and Card, in which they discussed declassification of the NIE? [It was eventually formally declassified on July 18]

L: Yes.

F: During that meeting, you knew that it had already been declassified, and yet none of them knew?

L: Yes.

F: [incredulous] Is it unusual for the National Security Advisor, the Director of Central Intelligence, and the White House Chief of Staff to be kept in the dark?

L: The Vice President tells me a lot of things that I’m not supposed to tell anyone else.

F: Have there been other times this has happened?

L: Yes. [he goes on to describe a case in which the President does something without everyone else knowing about it first]

F: Has it ever happened before that the press has been in possession of a document that other government officials still thought was classified?

L: This happens…

—–

When I heard the above exchange, I immediately recalled that Judge Walton had instructed the jury that the prosecution had stipulated that the NIE had been legally declassified. Was that the result of a bargain between Fitzgerald and the defense, who may have asked for that jury instruction in return for letting Fitz put this stuff into evidence? Who knows? But it’s obvious that back in March 2004, Stickler-For-Proper-Procedures Fitzgerald thought that what Libby had done–or claimed to have done–was highly illegal. The question is, why didn’t he prosecute? Marcy Wheeler (aka emptywheel), who wrote a whole book on this stuff, thinks that Libby made up the whole I-leaked-the-NIE-to-Miller story to hide the inconvenient fact that the instruction in his notes to leak something to Miller on July 8 was really about the Plame leak. He invented the NIE leak to cover himself, and then that was the inspiration for the completely unprecedented insta-declassification doctrine. Marcy’s theory is partly based on Murray Waas’s report that Bush denied knowing that Libby had covertly leaked classified information to the media. In other words, Fitzgerald didn’t pursue this crime, because maybe it didn’t really happen.