Agreed by Both Sides: Nothing to See Here, Move Along

There's a first for everything. Today's first is that SWNID cites with approval a piece from the left-wing New Republic.

The piece is Jeffrey Rosen's, which offers a stinging critique of Patrick Fitzgerald's indictment of Scooter Libby for perjury and obstruction of justice. He notes that indictments for perjury are rare to nonexistent for testimony given when no underlying crime has been found to have been committed. Worse, he notes that there is no obstruction of justice where the act doesn't interfere with an investigation and no underlying crime is found to have been committed.

A couple of choice passages:

Contrary to Fitzgerald's claim, charges of perjury, obstruction, and false statements are relatively rare in federal criminal prosecutions. In 2004, federal prosecutors launched 80 perjury cases out of 70,397 criminal cases. "Ordinary prosecutors rarely indict people for perjury and more often indict people for false statements, but almost always as part of a broader indictment including more serious charges," Stuntz says. A review of Fitzgerald's record as an ordinary prosecutor suggests he has presided over more perjury, obstruction, and false statement cases than most. But, when he has issued indictments on those charges alone, it's usually been for bit players covering for people indicted for major crimes. It's special prosecutors who are known for indicting suspects for making false statements alone, without charging anyone with any other indictable offense.

Just as Democrats were right to denounce Starr for criminalizing insignificant and immaterial lies, Republicans are right to denounce Fitzgerald for the criminalization of political differences. It's been clear from the beginning that Libby, Karl Rove, and Dick Cheney were trying to discredit a critic of the administration, not trying to disclose the identity of a covert agent. But what makes Nadagate even worse than Monicagate is its effect on the First Amendment. Never mind whether Judith Miller of the Times is a trustworthy journalist: She and Matthew Cooper of Time were correct to fear the spectacle not only of having to appear before a grand jury but also of being charged themselves with violating national security laws. And, as the columnist Walter Shapiro notes, they were also correct to fear the costs of appearing in a public trial talking about their previously off-the-record conversations with their sources--costs that might make national security reporting far harder in the future.