I must be getting old. I've been trying to wrap my brain around the Scooter Libby case, and I think I've wound up agreeing with the right wing punditocracy that Scooter shouldn't have been prosecuted. The charges were that he obstructed justice and committed perjury, and it's not clear to me that he did either of these things.
On the obstruction of justice counts, it seems to me that justice wasn't actually obstructed. Fitzgerald was appointed to:
- Figure out who leaked Valerie Wilson's identity to Robert Novak
- Determine whether the leak was criminal
- See how far up the chain of command authorization for the leak went
- Prosecute (if appropriate)
A lot of anti-Bushies have gotten all righteous and sputtered about how national security was compromised and the safety of a CIA agent doing vital work was threatened. I'm not really buying it. First of all, I think the First Amendment considerations actually trump the security considerations. It's a bad law, created as a backlash to the anti-CIA backlash of the '70s. It's hard for me to view a conviction of anybody under this law as something to rejoice about. Second, who are we kidding. If the circumstances had happened 180 degrees differently, and if a CIA agent had been "outed" by the left in order to embarrass a pro-Bush apologists (the equivalent happened frequently during the aforementioned backlash), I think the left and right wings of the punditocracy would have switched places.
As for the perjury, as I understand it, perjury consists of knowingly lying under oath about facts that are material to the underlying inquiry. If you're testifying under oath as an expert witness about the copulatory habits of monarch butterflies and you fib about what you ate for lunch under oath because you don't want your wife to know you had a cannoli, you aren't committing perjury.
One of the reasons the perjury counts against Bill Clinton failed is that all those lawyer congressmen knew this. The judge in the Paula Jones case ruled that the Lewinsky business wasn't material to the Jones case and excluded it, ultimately dismissing the case itself. Because Clinton's Lewinsky lies were about a non-material issue in a non-case, there was no way to make a perjury case out of them (even in a setting so devoid of procedures and rules of evidence as an impeachment proceeding).
Scooter's lies are really a variation on this theme. His lies didn't influence what happened with Rove and Armitage and were about conversations with people who didn't disclose Valerie Wilson's identity. This makes their materiality to the underlying inquiry debatable. Moreover, it bears repeating that there probably wasn't a crime. Fitzgerald has very conspicuously not said that he thought the leak was a crime, but he couldn't build a case. He has been almost entirely silent about whether or not the IIPA was violated. What surprises me is that Libby's defense didn't pursue this angle. Instead, they tried to make the laughable case that Libby couldn't remember what he told to whom. His lies weren't lies, they were just mistakes.
Now we come to the chain of command question. Here's something anybody who has been paying attention to the case should know. Dick Cheney orchestrated the whole thing. There are smoking guns in the form of his memos, hand-written notes, and emails all over the place. These were introduced into evidence by the the prosecution to bolster its contention that Libby knew who Wilson before he told the FBI and the grand jury that he did. But these items were not used to build a case against Cheney. Fitzgerald has made it very clear that he thinks Cheney is responsible and has talked about a cloud hanging over the Veep. But he didn't indict him, he didn't forward a report recommending impeachment to Congress , and he didn't call for Cheney's resignation. If the leak was a crime, there's ample evidence to tie Cheney to it, and there's no evidence that Libby got in the way of Fitzgerald finding it. Fitzgerald took the investigation as far up the chain of command as one could imagine him going, and did nothing to anyone except Libby.
So why was this case prosecuted? I think for some combination of two reasons. First, Libby is a lawyer, and he lied to the FBI and to a Federal grand jury. This pisses off prosecutors. Second, it's possible that Fitzgerald was trying to make a case against Cheney, and he was trying to get Libby to turn against him. The trial could have been a result of Libby and Fitzgerald calling each other's bluffs. I think that Libby has actually got a strong possibility of winning on appeal. Expensive and high-powered though it may be, I think it was incompetent not to pursue dismissing the case under the logic outlined here.
Partly because I don't like it when prosecutors prosecute out of pique or bluffs, and partly because I like to swim against the stream politically, I hope the appeal goes pretty far and that the issues I outline get tested. Not that I have much sympathy for Libby, though. This whole matter is about something both despicable and stupid. The idea that Joseph Wilson's trip to Niger was some sort of junket or perk arranged by his wife is comical. Come on, Niger? How could these people have possibly thought that this would have undercut what Wilson, and the rest of the CIA, and British intelligence, and German intelligence, and Italian intelligence, and the U.N. said about the "sixteen little words" about Niger yellowcake? How could they possibly have had the balls to cite this as evidence of Saddam's nuclear ambitions in the first place. Many people deserve their time in the stocks for bringing about this war, Libby among them. But a questionable prosecution for perjury and obstruction of justice was not the way to get him there.
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