The Spine

The Law Won?


I am reasonably sure that no one in the White House cares what I think
about a pardon for Scooter Libby. But, frankly, I'd prefer for the D.C.
Circuit to overthrow the verdict of the district court than for George Bush
to pardon Libby. It would keep Libby out of jail, but it woouldn't persuade
anyone that he is innocent.

After the 140 sleazy midnight absolutions by Mr. and Mrs. Clinton, any
presidential pardon will be afflicted with a stench that will keep it from
ever being truly seen as an act of justice. OK, if the appellate process
doesn't work for Libby, then a White House reprieve it should be.

Let me confess--not for the first time here--that Libby is a friend. I
like him, I respect him and I think him an utterly honest and decent
person. I am a member of the board of his defense committee, and I have
contributed money to it. So you may discount my argument on his
behalf. Still, I am deeply persuaded that there are many reasons in logic,
in fact and in the very idea of justice why Libby's conviction should be

First of all, there is the question of why the special counsel Patrick
Fitzgerald did not indict Richard Armitage, Colin Powell's second at
State, who the counsel knew without the slightest doubt--before he ever
charged Libby with anything--was the source of the leak, the leak being
that Valerie Plame was an undercover officer at the CIA and also the wife
of Joseph Wilson, one of the president's critics on the matter of whether
Iraq tried to buy yellowcake from Niger. Here is someone who actually
committed the crime, if any crime was actually committed, and he was
charged with nothing. Absolutely nothing. There are others in the same
cushy position as Armitage. Like Karl Rove. Why?

Secondly, if Fitzgerald was persuaded that Libby had in fact leaked
Plame's identity, why didn't he, in fact, take Libby to the grand jury and
charge him with violating the secrecy provisions of the law? There are
several reasons. One is that the applicability of those provisions are
dubious. The second is that Plame seems to have led a rather public
"secret" life, flashy, suggestive and also silly. Anyone one who outed
Plame was outing a known character. And, then, there is the probity of
Plame pushing her own husband--a low-level diplomat with no significant
past and, even then, no promising future--for an intelligence and security
task for which he had no qualifications. Yes, the ex-ambassador may have
been quite known in Niger. And that is only one reason why he was so very
wrong for the job at hand. Do you send a show-boater to dig for the
movement of nuclear material? Is this not shameful? Is this not what we
call nepotism, high-stakes nepotism?

Third, not being willing or able to indict Libby for what would seem to be
the putative crime--breaking the law by revealing Plame's identity--Fitzgerald digs deeply into the bag of prosecutorial tricks and accuses
Libby of fibbing about an act that may not be be chargeable in the first
place. Now, as it happens, I know some of the people to whom Libby is said
to have leaked. One of them is Matt Cooper, whom I knew when we worked at
TNR. He is a trustworthy sort. But the jury didn't believe his testimony
and acquitted Libby on the count that, if it believed Cooper's words, it
would have declared him guilty. That was that.

Now, I also know Tim
Russert. On general political matters, I have my own reasons to question
his fairness. Would he knowingly lie about Libby? Probably not. What I
am suggesting here is the insubstantiality of the charge of
perjury. People forget... and think they remember... honorably. I forgot
with whom I had dinner last night. And more serious forgettings.

An old acquaintance once lured me into an argument in which he insisted
that the person who outed Plame was actually guilty of treason. Now,
Fitzgerald had not yet publicly fingered Libby. Still, my insistent
acquaintance pushed the treason analogy. Of course, he was one of those
lefties who didn't think anybody on the "progressive" side of history had
committed treason against the U.S. There are many people who in the
country who want Bush's blood. In the circumstances, they'll settle for
Libby's imprisonment.

But political differences should not lead to judicial proceedings. On the
most sympathetic of readings, Libby's indictment and the verdict, as well,
are laughable. We will be pay for making the courts an instrument of

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