Those critical of the President’s commutation of Mr. Scooter Libby’s sentence the day before last declaim it as politically motivated or, according to Sen. Obama, an instance of "ideology above the law"1, criticism that could only be valid were it describing the investigation, prosecution, and sentencing of Mr. Libby and these dissidents’ own support and conception of it.2 A simple examination of the objective facts of this strange, pathetic affair can lead me to no other conclusion.
Prior to the appointment of Patrick Fitzgerald as special prosecutor in the Plame leak investigation, the Justice Department was aware of the source of that leak (then Deputy Secretary of State Richard Armitage) and that no violation of the Intelligence Identities Protection Act had occurred. Nevertheless, Mr. Fitzgerald pursued his investigation for months, at the conclusion of which an indictment was filed charging Mr. Libby with perjury before a federal grand jury and obstruction of justice, crimes committed during the course of an investigation whose purpose had been realized before it had begun—determination of the source of the leak and if it constituted an illegality—and in which no underlying crime had been committed.
Perhaps I’m missing something, but a criminal investigation commissioned and executed following the determination of the perpetrator’s identity and the fact that no actual crime had been committed has about as much purpose as calling in the paramedics after the death certificate has been signed. Since the purpose of the investigation had been realized before it had begun, the only purpose Mr. Fitzgerald’s inquiry seems to have taken on is a fishing expedition to catch someone within the administration somewhere in an inconsistency so they could be charged, something he succeeded in.
But leaving to the side the context, one has to question once again the legal validity of Mr. Libby’s conviction on its face. As the editors at National Review point out, the perjury he was alleged to have committed was based on nothing more than "discrepancies between Libby’s grand jury testimony and that of a few journalists who contradicted him...a reasonable person listening to the faulty memories of the witnesses who testified could have concluded that Libby simply had things mixed up."3
The probability of this is only increased by the fact that former White House Press Secretary Ari Fleischer testified under oath during the trial that he had not told a reporter for the Washington Post about Mrs. Plame while the reporter testified he had. According to common sense one or the both of them simply has a faulty memory about a conversation which happened in the past. According to Mr. Fitzgerald’s logic however, one of them committed perjury.
The bankruptcy of this is evident. As Charles Krauthammer has written, at the time of the affair Mr. Libby "was famously multitasking a large number of national-security and domestic issues, receiving hundreds of pieces of information every day from dozens of sources. 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."4 Prosecutions for jay-walking across an empty street have made more sense.
Nevertheless the jury convicted, a determination I may disagree with but can respect (they could not control the fact that an absurd case was placed before them).
What does extend beyond reason and respect is Mr. Fitzgerald’s request following that conviction that Mr. Libby be sentenced as if he had committed the crime of illegally revealing the identity of an undercover intelligence agent. Say what you will, but I am of the belief that, if one has committed a crime in the opinion of a jury of his peers he should be punished for only that crime, and that if a prosecutor wants to punish him for a certain crime he ought to charge him with it and go through the trouble of prosecuting him for it. That the judge eagerly granted Mr. Fitzgerald’s wish only compounds this affront on justice, which was nothing more than a legal bait-and-switch (convict him of one crime, then punish him as if he had committed another).
From the beginning, this affair has been little more than politics waged in the legal arena.5 It was and always has been a vehicle through which, quoting Robert Novak, critics have sought to criminalize "Bush’s military intervention" in Iraq. Senate Majority Leader Harry Reid admitted as much when he described Mr. Libby as part of "White House efforts to manipulate intelligence and silence critics of the Iraq War."6 The circumstances of the case do not support the extravagant implications Sen. Reid sees in it.
To commute the sentence of Mr. Libby was the very least the President was compelled to do. Mr. Libby should not have had to go to jail for two years because the Washington establishment seeks to punish the Bush Administration for the Iraq War. This is nothing more than the criminalization of politics, where the resources of justice are used to settle political disputes.
Explaining his pardon of the Iran Contra indictees nearly fifteen years ago, President George H.W. Bush denounced this phenomenon, saying that differences in policy "should be addressed in the political arena, without the Damocles sword of criminality hanging over the heads of some of the combatants. The proper target is the president, not his subordinates; the proper forum is the voting booth, not the courtroom."
The wisdom and benefits of this principle is evident, and under it this long, sad affair is condemned, as well as those who perpetrated and supported it. If any crime was committed by Mr. Libby, then it was not nearly as obnoxious as the insult on blind justice which was perpetrated by Patrick Fitzgerald et al.
1. York, Byron (2007, July 3). Why Bush Saved Libby. National Review Online, Retrieved July 4, 2007, from http://article.nationalreview.com/?q=M2RjNDYzNGIwNDNiOGUwOTMyODZhZDJmYzZhNDhkMGU=
2. Neither would it seem like crocodile tears if those offering it had risen in similar righteous indignation when President Clinton pardoned crook and campaign contributor Marc Rich and also Susan McDougal, who refused to testify as to whether President Clinton had lied under oath
3. Editorial, (2007, July 3). Appropriate Presidential Mercy. National Review Online, Retrieved July 4, 2007, from http://article.nationalreview.com/?q=YzQ4ZDQwYzA2Yjk5YmEwZGVhMzVhZGYxMDQ1MWU5MjI=
4. Krauthammer, Charles (2007, March 9). Time To End Fitzgerald's Folly. The Washington Post, Retrieved July 4, 2007, from http://www.realclearpolitics.com/articles/2007/03/bush_should_pardon_libby_now.html
5.I would be remiss if I did not mention the glaring contradiction between the application of justice in this case with that which occurred when former national security advisor Sandy Berger deliberately attempted to steal and remove highly classified documents from the national archives and then lied about doing it, with little more than a slap on the wrist. That seems to be an offense much steeper than failing to recall when one heard of a certain person’s identity months in the past. Mr. Libby could reasonably claim to have a hazy memory, it is hard to claim that one inadvertently walked out of the archives with documents stuffed in your socks and underpants. Yet Mr. Berger was fined $50,000, given probation, and sentenced to community service, while Mr. Libby was given a fine of $250,000, two and a half years in prison, and then two years probation. Justice does not seem to be blind in this case, but instead has a poor sense of balance.
6. Novak, Robert (2007, July 4). Bush as Solomon. Creators Syndicate, Retrieved July 4, 2007, from http://www.realclearpolitics.com/articles/2007/07/bush_as_solomon.html
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