SWNID on Libby: Even WaPo Gets It

We defer expression of our opinion on the conviction of Scooter Libby for perjury to two voices from the organ of political insidership, the Washington Post.

In an editorial from Wednesday, the paper's editors point out pointedly that the whole prosecution by Special Prosecutor Patrick Fitzgerald had no real point. Here's their trenchant summation of the facts of the un-case:

Mr. [Joseph] Wilson was embraced by many because he was early in publicly charging that the Bush administration had "twisted," if not invented, facts in making the case for war against Iraq. In conversations with journalists or in a July 6, 2003, op-ed, he claimed to have debunked evidence that Iraq was seeking uranium from Niger; suggested that he had been dispatched by Mr. Cheney to look into the matter; and alleged that his report had circulated at the highest levels of the administration.

A bipartisan investigation by the Senate intelligence committee subsequently established that all of these claims were false -- and that Mr. Wilson was recommended for the Niger trip by Ms. Plame, his wife. When this fact, along with Ms. Plame's name, was disclosed in a column by Robert D. Novak, Mr. Wilson advanced yet another sensational charge: that his wife was a covert CIA operative and that senior White House officials had orchestrated the leak of her name to destroy her career and thus punish Mr. Wilson.

The partisan furor over this allegation led to the appointment of special prosecutor Patrick J. Fitzgerald. Yet after two years of investigation, Mr. Fitzgerald charged no one with a crime for leaking Ms. Plame's name. In fact, he learned early on that Mr. Novak's primary source was former deputy secretary of state Richard L. Armitage, an unlikely tool of the White House. The trial has provided convincing evidence that there was no conspiracy to punish Mr. Wilson by leaking Ms. Plame's identity -- and no evidence that she was, in fact, covert.

It would have been sensible for Mr. Fitzgerald to end his investigation after learning about Mr. Armitage. Instead, like many Washington special prosecutors before him, he pressed on, pursuing every tangent in the case.

We decry the editorialists' selective umbrage in what they express elsewhere in this editorial, i.e. that the jailing of journalists trying to protect sources in this case is the most egregious prosecutorial sin, and their implication that Libby and his boss Cheney deserve what Libby got because they were too zealous in trying to discredit the narcissistic blowhard Wilson. The double standard applied to journalists, who by definition cannot sin, and politicians, who by definition sin by their practice of politics, is . . . well . . . a bit inconsistent for our taste.

So we turn to WaPo Sage of Sages Charles Krauthammer, who on Friday (a.k.a. Krauthammer Day) offered these remarks, gleaned from his larger column that should be read in full:

Scooter Libby has just been convicted of four felonies that could theoretically give him 25 years in jail for . . . what? Misstating when he first heard a certain piece of information, namely the identity of Joe Wilson's wife.

Think about that. Can you remember when you first heard the name Joe Wilson or Valerie Plame? Okay, so it is not a preoccupation of yours. But it was a preoccupation of many Washington journalists and government officials called to testify at the Libby trial, and their memories were all over the lot. . . .

Yet special prosecutor Patrick Fitzgerald chose to make Libby's misstatements about the timing of the receipt of one piece of information -- Mrs. Wilson's identity -- the great white whale of his multimillion-dollar prosecutorial juggernaut.

Why? Because on his essential charge as special prosecutor -- find and punish who had leaked Valerie Plame's name -- he had nothing. No conspiracy, no felony, no crime, not even the claim that she was a covert agent covered by the nondisclosure law. Fitzgerald knew the leaker from the very beginning. It was not Libby but Richard Armitage. He also knew that the "leak" by the State Department's No. 2 official -- a fierce bureaucratic opponent of the White House, especially the vice president's office -- was an innocent offhand disclosure made to explain how the CIA had improbably chosen Wilson for a WMD mission. (He was recommended by his CIA wife.) Everyone agrees that Fitzgerald's perjury case against Libby hung on the testimony of NBC's Tim Russert. Libby said that he heard about Plame from Russert. Russert said he had never discussed it. The jury members who have spoken said they believed Russert.

And why should they not? Russert is a perfectly honest man who would not lie. He was undoubtedly giving his best recollection.

But he is not the pope.

Agreed. Also agreed: Fitzgerald is not the pope.

The necessity for perjury laws is patent. But their prosecution is a matter of discerning the state of mind of a witness. Humans having at best an imperfect means of obtaining such information, their prosecution should be circumspect. This one was not. Fitzgerald--like all special prosecutors, whose "specialness" consists in their lack of supervision that provides limits to their power--fell victim to the corruption of absolute power.

What adds comedy to this drama is that Henry Waxman, D-Show Trials, is planning public hearings asking again whether Plame was illegally outed as a covert spy. Asked and answered, Congressman. Please get back to hearings on pesticides and cigarettes.