Now that the trial's over, here's a general discussion topic. Starting with Mr. Sowell's opinion.
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Friday, March 9, 2007
If you wanted a textbook example of what is wrong about appointing a special prosecutor, the prosecution of White House aide Lewis "Scooter" Libby is a classic. Let's go back to square one to see how this sorry chapter in criminal law unfolded.
The charge that was trumpeted through the media was that the Bush administration had leaked the fact that Joe Wilson's wife worked for the C.I.A. in retaliation against him for saying that Saddam Hussein was not seeking uranium in Niger, contrary to intelligence reports cited as one of the reasons for invading Iraq.
Since there is a law against revealing the identity of a C.I.A. agent, a great hue and cry went up for a special prosecutor to find and prosecute whoever leaked that information.
Some in the media gleefully anticipated seeing White House adviser Karl Rove, or perhaps even Vice President Dick Cheney, being frog-marched out of the White House in handcuffs.
Attorney General John Ashcroft appointed a special prosecutor, Patrick Fitzgerald, to investigate these charges.
Here is where the story takes a strange and disturbing twist. Today we know what we did not know when it happened -- namely, that Fitzgerald discovered early on that the leaker was not any of the White House officials on whom suspicion was focussed.
It was Richard Armitage in the State Department. Moreover, Joe Wilson's wife had a desk job at the C.I.A. and revealing that fact was not a violation of the criminal law.
In other words, there was no crime to prosecute and there was no mystery to solve as to who had leaked Wilson's wife's name to columnist Robert Novak.
At this point, a regular prosecutor would have decided that he had other things to do than to pursue an investigation of a non-mystery about a non-crime. But special prosecutors are different.
Patrick Fitzgerald insisted on keeping the investigation going for three years -- and keeping secret the fact that there was no crime involved and no mystery about who leaked.
In the course of this pointless investigation, it turned out that some of Scooter Libby's statements conflicted with the statements of some reporters. So Libby was prosecuted for perjury and obstruction of justice -- and a Washington jury convicted him.
Not only did Libby's recollections differ from that of some reporters, some of those reporters differed among themselves as to what had been said and some differed in their later testimony from what they had said in their earlier testimony.
The information about Joe Wilson's wife was so incidental and trivial at the time that it is hardly surprising that it was not fixed in people's minds as something memorable. Only later hype in the media made it look big.
With Libby handling heavy duties in the White House, there is no reason for his memory to be expected to be better than that of others about something like this -- much less to convict him of perjury.
As for the pay-back conspiracy theory of a Bush administration-inspired leak because of Wilson's opposition to the Iraq war, Richard Armitage was not an Iraq war hawk and columnist Robert Novak opposed the war. They had no reason to discredit Wilson.
Even the term "leak" is misleading. In the course of a discussion, Novak simply asked Armitage why someone with no expertise like Joe Wilson had been sent to Niger in the first place -- and Armitage's answer was that he was sent at the suggestion of his wife, who worked at the C.I.A.
Novak's column was not about that fact but mentioned it in passing. From this the liberal media went ballistic with conspiracy theories that we now know were totally false.
A man's life has been ruined because his memories differed from that of others -- whose memories also differed among themselves -- and media liberals are exulting as if their conspiracy theories had been vindicated.
More important, how are we to expect highly qualified people, with far better options than a government job, to risk being put through the Washington meatgrinder because of politics, media hype and special prosecutors who can create crimes in the course of an investigation, when there was none to begin with?
On a side note, the Scooter Libby trial is what one would call a travesty of justice.
highly qualified people
HAH!
Perverse Libby Trial was revealing.
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A couple of days ago, Shane Gibson, the Bahamian immigration minister, resigned. The Tribune in Nassau had published front-page pictures of him in bed with Anna Nicole Smith. Could happen to anyone. Riding high in February, shot down in March. And, in fairness to the minister, both parties were fully clothed. Indeed, Anna Nicole was more fully clothed than she usually was out of bed.
My point here is that this is a classic scandal in the Westminster parliamentary tradition: On Monday, you're blandly denying vague rumors; on Tuesday, they're all over the front page; on Wednesday, you're photographed alongside your long-suffering wife vowing to fight this outrageous slur; on Thursday, you're resigning to spend more time with your family and the prime minister issues a statement saying the nation will always be grateful to you for your long years of public service culminating in the passage of the Municipal Airports (Parking Lot Signage) Bill, and on Friday your successor is seated behind your desk already working on his own career-detonating scandal.
Washington doesn't seem to do things that way. In a Beltway political scandal, you appoint a special prosecutor who investigates it for years and the scandal metastasizes and morphs in bizarre fantastic ways. I'm not being especially partisan here. I thought Bill Clinton should have resigned when the blue dress showed up. But the months pass and instead he's testifying to the grand jury about his definition of non-sexual relations -- if the party of the first part is apart from the parts of the party of the second part while the party of the second part is partaking of the parts of the party of the first part, etc. -- and once you're arguing on that basis the very process is a mockery.
What's just happened to Scooter Libby is, I think, worse. In his closing remarks, Patrick Fitzgerald invited the jury to view a narrow perjury case as something epic: ''What is this case about?'' the special counsel mused. ''Is it about something bigger?'' Fortunately, he was musing rhetorically, and he had the answer on hand: ''There is a cloud over the vice president. . . . There is a cloud over the White House.''
Indeed. And what exactly is the cloud? Is it that the name of a covert agent was intentionally leaked in breach of the relevant law on non-disclosure?
No. On the alleged violation of Valerie Plame's identity, Fitzgerald was unable to produce not only a perpetrator but any crime.
Is the cloud then a more general murk? A politically motivated attempt to damage the white knight Joe Wilson as he sallied forth against the Bush dragon?
No. The man who leaked Valerie Plame's name was Richard Armitage, Colin Powell's deputy at the State Department and a man who dislikes Rove, Cheney and all their neocon warmongering works. The journalist he leaked it to -- Bob Novak -- was also opposed to the Iraq war. Neither Armitage nor Novak had any animus against Joe Wilson. On the contrary, they broadly share Wilson's skepticism on the threat posed by Saddam. There was no conspiracy, just Armitage gossiping like the gravelly voiced schoolgirl he's been for years.
When a prosecutor speaks about ''a cloud over the vice president's office'' and ''a cloud over the White House,'' he is speaking politically. There is no law about the amount of cumulus permitted over 1600 Pennsylvania Avenue. The prosecutor is speculating on political capital -- reputation, credibility, the currency of politics. Once damaged, they're hard to recover. So, even if it's not within the purview of the jury, his question is relevant to the wider world: How did this cloud get there and stay there even though it had no meaningful rainfall?
Answer: Patrick Fitzgerald.
The prosecutor knew from the beginning that (a) leaking Valerie Plame's name was not a crime and (b) the guy who did it was Richard Armitage. In other words, he was aware that the public and media perception of this ''case'' was entirely wrong: There was no conspiracy by Bush ideologues to damage a whistleblower, only an anti-war official making an offhand remark to an anti-war reporter. Even the usual appeals to prosecutorial discretion (Libby was a peripheral figure with only he said/she said evidence in an investigation with no underlying crime) don't convey the scale of Fitzgerald's perversity: He knew, in fact, that there was no cloud, that under all the dark scudding about Rove and Cheney there was only sunny Richard Armitage blabbing away accidentally. Yet he chose to let the entirely false impression of his ''case'' sit out there month in, month out, year after year, glowering over the White House, doing great damage to the presidency on the critical issue of the day.
So much of the current degraded discourse on the war -- ''Bush lied'' -- comes from the false perceptions of the Joe Wilson Niger story. Britain's MI-6, the French, the Italians and most other functioning intelligence services believe Saddam was trying to procure uranium from Africa. Lord Butler's special investigation supports it. So does the Senate Intelligence Committee. So Wilson's original charge is if not false then at the very least unproven, and the conspiracy arising therefrom entirely nonexistent. But the damage inflicted by the cloud is real and lasting.
As for Scooter Libby, he faces up to 25 years in jail for the crime of failing to remember when he first heard the name of Valerie Plame -- whether by accident or intent no one can ever say for sure. But we also know that Joe Wilson failed to remember that his original briefing to the CIA after getting back from Niger was significantly different from the way he characterized it in his op-ed in the New York Times. We do know that the contemptible Armitage failed to come forward and clear the air as his colleagues were smeared for months on end. We do know that his boss Colin Powell sat by as the very character of the administration was corroded.
And we know that Patrick Fitzgerald knew all this and more as he frittered away the years, and the ''political blood lust'' (as National Review's Rich Lowry calls it) grew ever more disconnected from humdrum reality. The cloud over the White House is Fitzgerald's, and his closing remarks to the jury were highly revealing. If he dislikes Bush and Cheney and the Iraq war, whoopee: Run against them, or donate to the Democrats, or get a talk-radio show. Instead, he chose in full knowledge of the truth to maintain artificially a three-year cloud over the White House while the anti-Bush left frantically mistook its salivating for the first drops of a downpour. The result is the disgrace of Scooter Libby. Big deal. Patrick Fitzgerald's disgrace is the greater, and a huge victory not for justice or the law but for the criminalization of politics.
