Scooter gets the Martha treatment
Fitzgerald deftly addresses the idea that Lewis Libby is the victim of investigative overkill, but the argument won't go away
Monday, October 31, 2005
Pittsburgh Post-Gazette
WASHINGTON -- Looking like a younger version of Ben Stone, the Manhattan prosecutor on "Law & Order" played by Michael Moriarty, Special Counsel Patrick J. Fitzgerald on Friday did his best to disarm critics of his decision to charge I. Lewis "Scooter" Libby Jr. with perjury, obstruction of justice and making false statements to investigators.
It was a bravura performance, but it won't silence critics -- not all of them knee-jerk defenders of the Bush administration -- who will see the indictment of Mr. Libby as a case study in the problems posed by special prosecutors untethered to political reality.
I think Mr. Fitzgerald makes a plausible argument that the Libby indictment is a defensible use of the enormous power ceded to him by the Justice Department. But it's a close case, and leads to the depressing conclusion that there is probably no good way to decide whether high officials have crossed the line from hardball politics to criminal misconduct.
Mr. Libby is being charged as a result of an investigation into whether Bush administration officials violated the Intelligence Identities Protection Act by "outing" Valerie Plame, an undercover CIA official. The identification of Ms. Plame came after her husband, Joseph C. Wilson IV, embarrassed the Bush administration by challenging the president's suggestion that Iraq had sought to acquire uranium in Africa.
But Mr. Libby isn't accused of violating the law protecting agents' identities. Rather, he is accused of deceiving federal investigators and the grand jury about how he learned about Ms. Plame's status and disclosed it to reporters.
This leads to the first prong of the argument that Mr. Fitzgerald overreached: that Mr. Libby, like Martha Stewart, was the victim of prosecutorial bait and switch. The domestic diva was convicted, you'll remember, not of insider trading but of lying to federal investigators trying to get to the bottom of what seemed like a suspicious stock sale.
Likewise, President Bill Clinton's misleading testimony under oath about his relationship with "that woman, Miss Lewinsky" came in an investigation by Independent Counsel Kenneth Starr whose original focus was the Whitewater real-estate deal in Arkansas.
The bait-and-switch argument isn't made in isolation. It gains force from a larger objection to special prosecutors, whether they are appointed by federal judges -- as was Mr. Starr -- or placed on a very long leash by the Justice Department, as Mr. Fitzgerald was. (In theory, President Bush could have directed Justice Department officials to fire Mr. Fitzgerald, as Richard Nixon did with Watergate prosecutor Archibald Cox, but that was never a realistic option.)
The case against special prosecutors is to some extent a variation on the more general argument against federal prosecution of public officials: that the intricacies of federal law and the complaisance of grand juries makes it easy for prosecutors to transmute political differences into crimes.
But while ordinary prosecutors -- like Mr. Fitzgerald in his other role as U.S. attorney in Chicago -- have a broad mandate, special prosecutors (or "counsels") are turned loose on an individual official or incident.
This concern was sounded by Justice Antonin Scalia, in his lone dissent in a 1988 decision upholding a law providing for the court appointment of special prosecutors. But Justice Scalia, Dick Cheney's duck-hunting buddy, isn't the only one to make that point. In his 1988 opinion, Justice Scalia quoted a friend-of-the-court brief filed by former U.S. attorneys general from both Democratic and Republican administrations.
That brief warned that "the institutional environment of the independent counsel -- specifically, her isolation from the Executive Branch and the internal checks and balances it supplies -- is designed to heighten, not to check, all of the occupational hazards of the dedicated prosecutor; the danger of too narrow a focus, of the loss of perspective, of preoccupation with the pursuit of one alleged suspect to the exclusion of other interests."
To apply that wisdom to the Plame investigation, one could argue that a politically attuned Justice Department might have decided to terminate the messy inquiry, sparing journalists Matthew Cooper of Time and Judith Miller of The New York Times the threat of jail for contempt of court and allowing the Bush administration to lick the wounds it inflicted on itself by outing Ms. Plame as a way to discredit her husband.
Of course, Mr. Fitzgerald also could have exercised his prosecutorial discretion and chosen not to charge Mr. Libby. On Friday he offered a powerful argument for why he sought an indictment anyway. Specifically addressing the bait-and-and-switch issue, he told the press that "when you do a criminal case, if you find a violation, it doesn't really in the end matter what statute you use if you vindicate the [public] interest."
And what is that interest?
"When citizens testify before grand juries they are required to tell the truth," Mr. Fitzgerald said. "Without the truth, our criminal justice system cannot serve our nation or its citizens. The requirement to tell the truth applies equally to all citizens, including persons who hold high positions in government. In an investigation concerning the compromise of a CIA officer's identity, it is especially important that grand jurors learn what really happened."
Fair enough, but even some Bush critics in Washington are likely to view Mr. Fitzgerald as a Boy Scout who should have tempered his zeal for enforcement of the law with an appreciation of the political culture in which Scooter Libby and Judy Miller plied their respective trades. But, almost by definition, a special prosecutor is disinclined to look beyond the letter of the law. Unfortunately, the alternative -- allowing the president's men to investigate each other -- didn't work too well in Watergate.
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