An indefensible indictment.

by Jeffrey Rosen | November 14, 2005

Journalists have reacted to the indictment of Scooter Libby more or less along party lines. The New York Times editorial page noted that the perjury, obstruction of justice, and false statement charges filed by Patrick Fitzgerald, the special prosecutor, are "very serious," adding that "the Republicans' attempts to belittle the charges are quite a switch, considering that many of these same politicians gleefully helped to impeach President Bill Clinton on similar charges in a much less serious context." The Wall Street Journal editorial page countered that "Libby was defending administration policy against political attack, not committing a crime" and suggested that the indictment "looks like a case of criminalizing politics." On both ends of the political spectrum, however, there has been wide praise of Fitzgerald's restraint and professionalism in focusing on a relatively clear-cut case of false statements rather than indicting officials or reporters for disclosing official secrets.But it's important for journalists (including me) who vigorously opposed the Kenneth Starr investigation to state the obvious: The Fitzgerald indictments are an embarrassing confirmation of the old Washington rule that, when special prosecutors can't prove a crime, they indict the target for obstructing the investigation. Far from being typical behavior, indicting suspects for nothing more than false statements or perjury is a vice largely restricted to special prosecutors and independent counsels. And, although Libby's alleged lies to protect his boss may appear more serious than Bill Clinton's self-interested lies about sex, neither Clinton nor Libby prevented the special prosecutor from proving an underlying crime. In fact, there's strong reason to conclude that no underlying crime was committed. Unlike the Starr investigation, moreover, the Fitzgerald investigation represents a disaster for the First Amendment and may do long-lasting damage to political discourse in Washington. The praise for Fitzgerald focuses on the charges he did not bring. He did not prosecute Bush administration officials or journalists under the rarely invoked law he was originally appointed to investigate--the Intelligence Identities Protection Act, which forbids the knowing disclosure of the identity of a covert government agent. He did not invoke a broader provision that makes it a crime to disclose classified information--a statute that, if it were regularly enforced, would criminalize what most national security reporters do every day. As John Tierney of the Times, an eloquent critic of what he correctly calls "Nadagate," acknowledges, Fitzgerald also "didn't indict anyone for seemingly minor discrepancies in testimony." Instead, his indictment makes a relatively strong case that Libby lied repeatedly before the grand jury about when and how he first learned that Joseph Wilson, a critic of the administration's case for the Iraq war, was married to Valerie Plame, a CIA agent. Showing prosecutorial experience that Starr lacked, Fitzgerald at least brought a false statements indictment that is easy to understand. But the idea that Fitzgerald should be praised for the charges he didn't bring is absurd. Fitzgerald's main justification for bringing the perjury and obstruction charges was that Libby's alleged lies made it harder for the special prosecutor to know whether a crime had been committed. "What we have when someone charges obstruction of justice is the umpire gets sand thrown in his eyes," Fitzgerald said, using a labored baseball metaphor. "He's trying to figure out what happened, and somebody blocked their view." The metaphor, however, is unconvincing: "It's more like criminalizing someone for arguing with the umpire's ball or strike call," says Harvard Law Professor and tnr contributor William J. Stuntz. Libby's alleged obstruction did not block Fitzgerald's ability to decide whether he violated the Intelligence Identities Protection Act; Fitzgerald could have concluded months ago that there was no violation. To breach the meticulously drafted law, a person with access to classified material who learns the identity of a covert agent has to intentionally disclose information identifying the agent, knowing that this information will blow the agent's cover and that the United States is taking affirmative measures to conceal the agent's identity. In their exemplary brief filed in March 2005, a consortium of news organizations argued that there were serious questions about whether Plame qualified as a covert operative under the law. She was working at a desk job in Langley in July 2003, when Robert Novak first revealed her name, and arguably had not been assigned to duty outside the United States in the past five years, as the law requires. Moreover, there was little evidence that the government was taking "affirmative measures" to conceal her identity. Given the continuing uncertainty about Plame's status, it's unlikely that Libby both knew she was a covert agent in 2003 and disclosed her identity intentionally. (As Fitzgerald noted at his press conference, negligent or accidental disclosures are not illegal.) And, even if you assume the worst about Libby, it's hardly obvious that the question of who first told him that Plame worked for the CIA--was it, in other words, his government colleagues or NBC's Tim Russert?--would cast much light on whether he broke national security law. In his press conference, Fitzgerald abruptly shifted gears when questioned about why he brought perjury and obstruction charges without finding an underlying violation of the law. He suggested that it didn't matter what law Libby violated. "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 interest ... of the public in making sure he's held accountable," he said self- righteously. This is the usual last defense of the special prosecutor, but Fitzgerald suggested that he was doing what ordinary prosecutors do all the time. "When I got to Chicago, I knew the people before me had prosecuted false statements, obstruction, and perjury cases," he said at his press conference. 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. The closest analogue to the Libby indictment is not, in fact, Starr's charges against Clinton. It's Starr's indictment of the now-forgotten Julie Hiatt Steele. The Steele indictment, the craziest of Starr's excesses, stemmed from his frustration at Clinton and his aides for trying to smear Kathleen Willey, who alleged that Clinton groped her in the Oval Office. Steele was Willey's former friend. She initially told Newsweek's Michael Isikoff that Willey had come to her house to tell her about the advance on the night it occurred, but then recanted, told Isikoff she had lied at Willey's request, and repeated this recantation to Starr's FBI agents and two grand juries. Starr, outrageously, indicted Steele on three counts of obstruction of justice and one count of making false statements to federal agents--much like Fitzgerald. In the end, Starr's last stand ended in a hung jury, a warning that Fitzgerald may have a hard time convicting Libby as well. 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. Nevermind 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. It's a sign of the declining political clout of the traditional media that Congress is in no rush to pass a version of a federal shield law that would protect professional reporters from having to reveal their sources in federal investigations (except in cases where the disclosure is necessary to prevent imminent harm to national security). Thirty-one states and the District of Columbia have shield laws, as do a number of European countries. But a bipartisan shield law bill is moving slowly through the House and Senate, in part because of the opposition of the Justice Department and in part because of opposition from bloggers. The current Senate proposal, sponsored by Chris Dodd and Richard Lugar, necessarily limits the protections of the shield law to professional journalists; otherwise any citizen who wanted to avoid testifying before a grand jury could simply start a blog. But defining a professional journalist is tricky. Lugar's spokespeople have suggested that bloggers who act like businesses--that is, whose sites include ads and are updated periodically-- might be protected, while more sporadic, unpaid bloggers would not. The blogosphere, predictably, has denounced this idea as elitist and discriminatory. "It's astounding to me that your right to free speech depends on whether you're making money or not," Glenn Reynolds, a University of Tennessee law professor who blogs at Instapundit, told Washington Internet Daily. In fact, there is a clear difference between what many bloggers do--opinion and analysis that does not rely heavily on reporting and sources--and the work of most reporters for the Times and The Washington Post. For professional journalists, the ability to cultivate sources and win their trust is the key to success or failure; and, as the Times' courageous and principled support for the flawed Miller shows, professional journalists rely on the power and money of large institutions to stand by them if the reporter-source relationship is invaded by unbalanced prosecutors. To sacrifice that relationship merely to assuage the vanity of bloggers is shortsighted in the extreme. For now, the prospects for a federal shield law seem poor, but the need may grow ever more intense if the Fitzgerald investigation is a harbinger of things to come. State district attorneys investigate particular crimes; federal prosecutors investigate particular suspects; and special prosecutors investigate efforts to impede their own investigations. Patrick Fitzgerald, by all accounts, is as scrupulous and fair-minded as prosecutors come. But the fact that even he succumbed to the old temptation to indict otherwise innocent officials for misleading him and his investigators reminds us, once again, that the entire apparatus of special prosecutors is a menace. Rather than applauding his handiwork, Democrats as well as Republicans in Congress should do everything possible to ensure that his familiar but illiberal abuse of power is never repeated again.

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