Presumably both Cheney and Libby retained the proper Security clearances that would allow them to share this information between them, even though Valerie's covert status wasn't discussed. The real question is whether as holder of a security clearance Libby had a responsiblity to determined if Valerie's status was covert prior to confirming her employement with reporters. In my own experience working with a defense contractor on classified projects for over 12 years, I would argue that he did.
WASHINGTON, Oct. 24 — I. Lewis Libby Jr., Vice President Dick Cheney’s chief of staff, first learned about the C.I.A. officer at the heart of the leak investigation in a conversation with Mr. Cheney weeks before her identity became public in 2003, lawyers involved in the case said Monday.
Lewis "Scooter" Libby
Notes of the previously undisclosed conversation between Mr. Libby and Mr. Cheney on June 12, 2003, appear to differ from Mr. Libby’s testimony to a federal grand jury that he initially learned about the C.I.A. officer, Valerie Wilson, from journalists, the lawyers said.
The notes, taken by Mr. Libby during the conversation, for the first time place Mr. Cheney in the middle of an effort by the White House to learn about Ms. Wilson’s husband, Joseph C. Wilson IV, who was questioning the administration’s handling of intelligence about Iraq’s nuclear program to justify the war.
Lawyers said the notes show that Mr. Cheney knew that Ms. Wilson worked at the C.I.A. more than a month before her identity was made public and her undercover status was disclosed in a syndicated column by Robert D. Novak on July 14, 2003.
Mr. Libby’s notes indicate that Mr. Cheney had gotten his information about Ms. Wilson from George J. Tenet, the director of central intelligence, in response to questions from the vice president about Mr. Wilson. But they contain no suggestion that either Mr. Cheney or Mr. Libby knew at the time of Ms. Wilson’s undercover status or that her identity was classified. Disclosing a covert agent’s identity can be a crime, but only if the person who discloses it knows the agent’s undercover status.
Under The Espionage Act: USC Title 18 § 793
Section (d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it.Defenders of the President have seized on the "has reason to believe could be used to the injury of the United States" portion of the statue to argue that if Cheney and Libby, Rove didn't know her status they therefore aren't liable. However, the statute continues:
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense,The real question here isn't whether Plame was undercover, it's the question of whether her connection to the CIA itself was classified. According to MarkC and his Plame Timeline at Dailykos, this conversation between Cheney and Libby took place on the same day that public information about Wilson's trip was revealed by Walter Pincus at the Washington Post.(1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or
(2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.
(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.
Walter Pincus, "CIA Did Not Share Doubt on Iraq Data; Bush Used Report Of Uranium Bid" The Washington Post - 06/12/03Two days previous, on 06/10/03 the State Departments INR Document had been generated discusing Wilson's trip - and apparently been modified to include a reference to Plame and her involvement in sending her husband on the trip, even though CIA sources indicate that person adding this information wasn't even at the meeting where this was decided.
"...the CIA in early February 2002 dispatched a retired U.S. ambassador to the country to investigate the claims, according to the senior U.S. officials and the former government official, who is familiar with the event. The sources spoke on condition of anonymity and on condition that the name of the former ambassador not be disclosed."
Washington Post: Sources said the CIA is angry about the circulation of a still-classified document to conservative news outlets suggesting Plame had a role in arranging her husband's trip to Africa for the CIA. The document, written by a State Department official who works for its Bureau of Intelligence and Research (INR), describes a meeting at the CIA where the Niger trip by Wilson was discussed, said a senior administration official who has seen it.
CIA officials have challenged the accuracy of the INR document, the official said, because the agency officer identified as talking about Plame's alleged role in arranging Wilson's trip could not have attended the meeting.
VICE PRES. CHENEY: No. I don’t know Joe Wilson. I’ve never met Joe Wilson. A question had arisen. I’d heard a report that the Iraqis had been trying to acquire uranium in Africa, Niger in particular. I get a daily brief on my own each day before I meet with the president to go through the intel. And I ask lots of question. One of the questions I asked at that particular time about this, I said, “What do we know about this?” They take the question. He came back within a day or two and said, “This is all we know. There’s a lot we don’t know,” end of statement. And Joe Wilson—I don’t who sent Joe Wilson. He never submitted a report that I ever saw when he came back.
I guess the intriguing thing, Tim, on the whole thing, this question of whether or not the Iraqis were trying to acquire uranium in Africa. In the British report, this week, the Committee of the British Parliament, which just spent 90 days investigating all of this, revalidated their British claim that Saddam was, in fact, trying to acquire uranium in Africa. What was in the State of the Union speech and what was in the original British White papers. So there may be difference of opinion there. I don’t know what the truth is on the ground with respect to that, but I guess—like I say, I don’t know Mr. Wilson. I probably shouldn’t judge him. I have no idea who hired him and it never came...
MR. RUSSERT: The CIA did.
VICE PRES. CHENEY: Who in the CIA, I don’t know.