Monday, October 31, 2005

The Libby indictment: another abuse of process?

Hopefully the article linked in the title hereto, former Solicitor General Ted Olson blasting Patrick Fitzgerald over the Libby indictment and the investigation in the Plame affair, is available to you. If not, here's the crux of it:

has demonstrated yet again that the special prosecutor syndrome is alive and well. The man he has indicted, Lewis Libby, was investigated, along with numerous others, to see whether someone violated a law prohibiting the intentional disclosure of the classified identity of a covert intelligence agent who'd served as such outside the U.S. during the five years preceding disclosure. Apparently he committed no such crime -- at least the indictment doesn't charge him with that. Instead, Mr. Fitzgerald asserts, he misled investigators and grand jurors about conversations he had with reporters regarding Ms. Plame and her husband Joseph Wilson, a former ambassador engaged in a bitter dispute with the administration over its justification for the Iraq war.

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As chief of staff to the vice president, Mr. Libby participated in countless meetings and phone conversations every day, seven days a week. Talking to reporters, mostly on background, is a big part of life in these jobs. At this level, important events occur daily, one after the other. The same can be said about journalists in Washington. So many phone calls every day -- some on record, some off. It is impossible to remember the details of who said what during which conversation on what day -- even a week, much less years, later. So if Mr. Libby's memory is wrong about what he said to or learned from reporters in June/July 2003, or if reporters do not recall accurately, or if phone conversations are juxtaposed, that is natural, not sinister.

Remember that Mr. Libby is not charged with knowingly disclosing Ms. Plame's CIA affiliation in order to disclose the identity of a secret agent. It seems fairly clear that he had numerous conversations about Mr. Wilson's discredited grievances against the administration in order to refute those charges and explain Mr. Wilson's motivations, not to out a CIA agent. Ms. Plame was not manifestly central or even especially relevant to the underlying dispute.

In other words, the special prosecutor embarked on an investigation to determine whether anyone had committed a crime by revealing Valerie Plame Wilson's identity. He never answered that question and instead indicted Libby based on he said/she said accounts of Libby's conversations with the reporters (Matthew Cooper, Judy Miller, others) involved in the case. Fitzgerald believed the reporters' versions instead of Libby's and decided to indict Libby for making false statements to investigators. This is the power of prosecutorial discretion at an unacceptable level of caprice. If there was no underlying crime, or insufficient proof thereof, Fitzgerald should have left the whole situation alone instead of indicting someone merely to show some fruits of his "investigation".

In a few years, after Libby has been vindicated, he too will wonder the same thing Robert McFarlane did when his convictions after Lawrence Walsh's Iran-Contra witchhunt were thrown out on appeal: "Where do I go to get my reputation back?"

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