Good for Dubyah
Once upon a time, there was a partisan diplomat who- on the basis of a few dinners, a drink or two, and very little investigation- decided to issue a report embarassing to the President of the United States.
An aide to the Vice-President may or may not have mentioned to someone that that diplomat's wife was an employee of the CIA. She had once done covert work for that agency. She was no longer doing so, and in fact had already been transferred to non-covert assignments. The distinction was not technical, and she was not "outed;" she was never "in." Her past covert service was no particular secret, and in any case she had already been transferred to non-covert duties.
There was never a question of a law having been violated. Nevertheless, a partisan prosecutor- aided by a partisan media, which persisted in falsely characterizing the CIA employee in question as a "covert operative-" staged a patently partisan investigation. In the process of conducting that investigation, that aide to the Vice-President claimed a failure of memory concerning an alleged conversation on the subject. The partisan prosecutor brought action against him for perjury, claiming that it was unreasonable that he might have failed to remember a particular conversation in a conveniently timely manner. Somehow- despite the highly shaky nature of the evidence- a jury convicted him, and a partisan Federal judge through the book at him, sentencing him to thirty months in prison for a failure of memory in connection with a sham investigation in which there was never really a question of the law having been violated in the first place.
Yesterday, the President of the United States did the right thing, commuting Scooter Libby's grossly disproportionate, politically-motivated sentence for a failure of memory in the course of a politically motivated prosecutorial witch hunt.
Good.
ADDENDUM: A commenter has observed that "partisan" is a difficult adjective to sustain where Special Prosecutor Fitzgerald and Judge Walton are concerned; both are Bush appointees, and neither has an obvious motive to work for the benefit of the Democratic party.
True enough. The fact remains that Fitzgerald's investigation into possible violations of the Espionage Act ran dry in December 2004, even given his presuppositions. A collateral perjury and obstruction charge against a second-tier administration official is all he could salvage- so he made the most of it. And the fact also remains that- despite being within the sentencing guidelines (which take in a lot of territory, so as precisely to allow for individual circumstances), Walton's sentence rejected the recommendation of the Probation Board that Libby face merely probation, or at most house arrest. It also violently conflicts with the predominent feeling of the jury that Libby was a scapegoat who- if punished at all- should be punished lightly.
Walton's sentence was grossly disproportionate to the offense, the President's commutation was a simple act of justice- and the behavior of both the Special Prosecutor and the judge in this matter had less to do with serving justice than with making headlines, and feeding the enemies of the Administration what few scraps of raw meat could be wrung out of the facts.
An aide to the Vice-President may or may not have mentioned to someone that that diplomat's wife was an employee of the CIA. She had once done covert work for that agency. She was no longer doing so, and in fact had already been transferred to non-covert assignments. The distinction was not technical, and she was not "outed;" she was never "in." Her past covert service was no particular secret, and in any case she had already been transferred to non-covert duties.
There was never a question of a law having been violated. Nevertheless, a partisan prosecutor- aided by a partisan media, which persisted in falsely characterizing the CIA employee in question as a "covert operative-" staged a patently partisan investigation. In the process of conducting that investigation, that aide to the Vice-President claimed a failure of memory concerning an alleged conversation on the subject. The partisan prosecutor brought action against him for perjury, claiming that it was unreasonable that he might have failed to remember a particular conversation in a conveniently timely manner. Somehow- despite the highly shaky nature of the evidence- a jury convicted him, and a partisan Federal judge through the book at him, sentencing him to thirty months in prison for a failure of memory in connection with a sham investigation in which there was never really a question of the law having been violated in the first place.
Yesterday, the President of the United States did the right thing, commuting Scooter Libby's grossly disproportionate, politically-motivated sentence for a failure of memory in the course of a politically motivated prosecutorial witch hunt.
Good.
ADDENDUM: A commenter has observed that "partisan" is a difficult adjective to sustain where Special Prosecutor Fitzgerald and Judge Walton are concerned; both are Bush appointees, and neither has an obvious motive to work for the benefit of the Democratic party.
True enough. The fact remains that Fitzgerald's investigation into possible violations of the Espionage Act ran dry in December 2004, even given his presuppositions. A collateral perjury and obstruction charge against a second-tier administration official is all he could salvage- so he made the most of it. And the fact also remains that- despite being within the sentencing guidelines (which take in a lot of territory, so as precisely to allow for individual circumstances), Walton's sentence rejected the recommendation of the Probation Board that Libby face merely probation, or at most house arrest. It also violently conflicts with the predominent feeling of the jury that Libby was a scapegoat who- if punished at all- should be punished lightly.
Walton's sentence was grossly disproportionate to the offense, the President's commutation was a simple act of justice- and the behavior of both the Special Prosecutor and the judge in this matter had less to do with serving justice than with making headlines, and feeding the enemies of the Administration what few scraps of raw meat could be wrung out of the facts.
Comments
Let there be no doubt that the entire affair- all of the pressure for a special prosecutor, and everything Fitzgerald did while a prosecutor- ignored the fact that Valarie Plane was not, in fact, a covert agent. The lie that she was was repeated over and over by the Democrats and by the media. The fact is that while she had undertaken clandestine missions in the past, that was first revealed by her buddy David Corn, who overstepped in (falsely) charging Rober Novak with revealing it, and let the cat out of the bag himself!
I'll say that again: neither Libby, nor Karl Rove, nor Robert Novak, nor anybody else but liberal columnist and Plame/Wilson family friend David Corn "outed" Valarie Plame as a *former* covert agent. All that anyone else revealed was that she worked for the CIA. Revealing that is not against the law!
There was, in short, no reason for a special prosecutor. There was never a question of a crime having been committed. But the Democrats and the media continued to misrepresent the most basic facts of the affair, and managed to create an atmosphere which allowed Fitzgerald to conduct a political witch hunt.
Make no mistake: justice and the rule of law had nothing to do with the Fitzgerald investigation. There was never a question of the law having been broken. The expedition was a fishing expedition undertaken in order to bag big game indeed: the Vice President of the United States. Regardless of who appointed either of the gentlemen involved, its object was nothing more or less than embarassing the Administration
in connection with a matter in which it was clear from the outset that no laws had been broken!
Nor was Fitzgerald able to return a single substantive indictment. How could he? It was clear from the git go that no laws had been broken! The best he could do was to convict Libby of lying to cover up nothing in particular about-not whether Libby had the conversation in question- but of whether he recalled it.
And so it was that Fitzgerald proved, allegedly beyond the shadow of a doubt, that a man did, in fact, remember a conversation he said he didn't!
The investigation was a political witch hunt that revealed nothing- other than the ability of Fitzgerald and the jury to read Scooter Libby's mind.
But let's say that Libby lied- pausing, in the process, to note that the President communted Libby's sentence to a quarter of a million dollar fine and two years probation.
Sentencing guidelines are "guidelines" for a reason. In this case, we have a man with a distinguished record of public service convicted- on shaky evidence- of having lied to a prosecutor investigating a matter in which he not only found no substantive violations of the law, but concerning which it had been clear from the outset that such had been the case.
The sentence was excessive, even if we believe that Libby was guilty, considering especially that the investigation in question was a partisan witch hunt from the word "go," driven by political enemies of the administration and undertaken by a prosecutor with a proven taste for sensational investigations and prosecutions.
Lest we forget, there is no question that Bill Clinton lied under oath. The Left somehow made the case that it's OK, because it was only about sex. Well, in Libby's case, it was about nothing in particular at all. Clinton was- rightly- disbarred for his lie. He was brought up before the Senate on impeachment charges. But no jail time. Libby has lost his job, been fined a quarter of a million dollars, and placed on probation with a record as a felon.
I'll say this quite directly: anybody who is outraged about Libby's sentence being commuted, but who does not believe that Bill Clinton should have gone to jail, is not only a partisan, but a hypocrite.
Let me say from the outset that it is precisely because of the similarities to the Clinton fiasco that I am so slow to judge on this case. Either both cases were wrong and neither investigation should have been pursued, or both cases were right. Let me also say that I am a conservative who voted for W twice. I am not being partisan; I am being logical.
Your response fails to establish that Fitzgerald was acting in a partisan manner. Acting out of self-interest to boost his own career? Perhaps; shades of Nifong. But partisan means for the express benefit of another party. The fact that an opposing party might experience some schadenfreude due to Fitzgerald's actions does not make Fitzgerald partisan. Furthermore, a prosecutor behaving (gasp!) like a prosecutor also does not make him partisan.
Furthermore, you failed to address what I said about the sentence. How is it that Walton staying within the sentencing guidelines which the Bush administration itself set down and has consistently asked the court to abide by, constitute his actions being politically motivated??? Sounds to me like he did exactly what they have asked him to do...
If anything, had the Republican Bush-appointee Walton strayed outside of those guidelines in Libby's favor...well, that would have been evidence of political motivation -- in favor of the administration.
Like it or not, the judge abided precisely by the administration's wishes in this case: he stuck to the guidelines and punted the ball back to W. (As did the appellate court). Can't blame them. In spite of the fact that they are all Republicans and might actually think the entire prosecution was wrong, they probably want to be able to appear as spotless as possible.
As for Plame's covert status, Ashcroft, Comey, Fitzgerald and Walton were ALL convinced enough about her status to move forward on the investigation. (I include Ashcroft because if there were substantial enough evidence that she was not covert, or that her identity and occupation were already widely known, he would not have bothered to recuse himself.)
The fact is that Fitzgerald presented to Judge Walton (on May 25) a summary of Plame's employment record which states unequivocally that she was covert at the time of the leak. Fitzgerald made this clear in his sentencing brief:
The assertion that the collective facts known at an early point in the investigation warranted a summary termination of the investigation does not stand up to close scrutiny. First, it was clear from very early in the investigation that Ms. Wilson qualified under the relevant statute (Title 50, United States Code, Section 421) as a covert agent whose identity had been disclosed by public officials, including Mr. Libby, to the press. (Full document found here, cited from pg. 12.)
In the end, there is NO ONE to blame for this fiasco other then GWB himself. The crucial mistake was made in the fall of 2003 when Bush said he would fire anyone found to have leaked information. He effectively painted himself into a corner with that.
And BTW, Clinton's disbarment was accompanied by a $250K fine just like Libby's. The only thing Libby gets [different from Clinton] is the probation. He won't be unemployed for long.
Now, all of that being said, I DO NOT (personally) believe that any of this came about due to maliciousness on the part of the Veep. All Cheney wanted to do was to put the lie to Wilson's assertion that it was Cheney who sent him to Nigeria; Cheney wanted people to know that it was Plame who sent Wilson. Told Wilson's way, it sounded as if Cheney sent Wilson and then ignored him when Wilson didn't come back with the info Cheney wanted to hear.
CLEARLY, in his op-ed in the NYT, Wilson lied twice: 1)that Cheney sent him, and 2) that Iraq had not purchased uranium (technically, that was true, but he failed to mention that just 3 years prior (1999), Iraq had TRIED to purchase uranium.
Of course, lies told in the op-ed pages of the NYT do not constitute perjury.
I honestly believe that those involved did not realize that Plame's status was indeed protected. But let's face it, NONE of us gets to say to the Judge, "But I did not KNOW that the speed limit was only 35 when I was clocked doing 50." Ignorance is NEVER a plea.
They SHOULD have known what they could and could not say.
IN the end, had EVERYONE in the Veep's office taken the route that Armitage took ("I didn't know she was covert when I spoke with Woodward and Novak"), none of this likely would have happened. Why would that have been best? Because, covert or not, Plame herself was sloppy about her cover. (See this blog-post for the explanation how.) Everyone in the veep's office COULD have said (from the start), "Yeah, we talked about her; after all she was talking about herself for years. Everybody knew..." Instead, they first put up walls and barriers. They MADE themselves look guilty, even if they weren't.
Secondly... Kepler, by terms of the operative statute, if Valarie Plame had been a covert agent, and if those involved in discussing her status did not know that her status was protected, they could by definition not have violated the law! It specifies that such knowledge is a necessary component of a violation!
I disagree with the way in which you compare the Whitewater affair- where there was legitimate reason to think that a law had been broken- and the Plame affair, in which it was clear by December of 2004 that none had been. Fitzgerald to the contrary, there was- as we will see in a moment- no such reason to pursue the Plame investigation; the actual investigation concerning violations of the Espionage Act had run dry by the time he decided to focus on the perjury and obstruction charges. But the Libby and Clinton cases clearly do, in themselves, have parallels. If Bill Clinton is not in jail, "Scooter" Libby shouldnt be, either. In fact, the fact that Clinton is not in jail is a powerful argument in itself for commuting Libby's sentence!
Ashcroft's decision to recuse himself is adequately explained by his personal relationships with several of the people who were perspective persons of interest. Certainly had he quashed the investigation- or had any member of the administration done so- the Democrats and the media would have had a field day.
It's not a question of whether there was substantial doubt as to whether Plame was covert at the time of the "leak." There was; neither Fitzgerald or anyone else has ever made public evidence that she met one of the two very specific criteria set out by the law. It remains to be proven that the CIA in any way sought to conceal a covert status for Plame, as the statute requires if a person is to be legally considered an undercover agent. On the other hand, Wilson himself categorically told Wolf Blitzer on July 14, 2005 that "My wife was not a clandestine officer the day that Bob Novak blew her identity."
He later tried to spin it as meaning that the revelation of her status made it impossible for her continue to function as a clandestine officer. Uh-huh.
As I indicated, we'll visit that point again. Suffice it for now to say that, in any case- and contrary to the conclusion upon which Fitzgerald's entire case rested- The facts support that conclusion- the Novak column in question identified Plame simply as "a CIA operative." No clandestine status was mentioned. Her cover, if any, was blown by family friend David Corn, who publicly attributed a covert status to her in his column the next day, which falsely charged that Novak had done what he himself was doing for the first time in that very column.
I suppose, if Plame had been covert, Fitzgerald could have indicted Corn. But since it was he who first made her alleged covert stautus public- a fruit of his personal relationship with Plame and Wilson- neither Armitage nor Libby nor anyone else was involved in that revelation. Unless Fitzgerald wanted to indict Corn, the case dried up at its very source even if one accepts the premise that Plame was covert.
No one but Corn had played any role in "outing" Valarie Plame!
But no indictment was returned against Corn, against Armitage, against Libby, or against anyone else for violating Title 50, United States Code, Section 421 (disclosure of the identity of covert intelligence personnel), or Title 18, United States Code, Sections 793 (improper disclosure of national defense information), or any parallel criminal statute was concerned. Interestingly, Fitzgerald even managed to convince the Grand Jury that Plame had been covert. But no indictment for blowing her cover was ever returned against anyone!
In fact, Libby's was the only indictment returned- for a collateral crimes, perjury (based on a judgment that Libby was lying when he explained an omission in his testimony as the result of an honest memory lapse) and obstruction of justice. The Special Prosecutor labored mightily, and brought forth a mouse. The case proceeded in an orgy of partisan sensationalism in which Democrats and the media treated the indictment and imprisonment of Karl Rove and other Bush administration officials as inevitable.
But no one- including Libby- was ever convicted of leaking Plames alleged clandestine status. In fact, court documents indicate that Fitzgerald had given up trying to pin any actual role in outing Plame on Libby, and was confining himself to collateral issues, by December 2004.
Sentencing guidelines are just that- guidelines. They cover a broad set of circumstances, and allow leeway on the part of the judge as to where within those guidelines a sentence should fall in any given case. As to the degree of Libby's culpability, it might be well to examine what several members of the jury that convicted him had to say.
Ann Redington broke down and cried as the verdict was being read. She told Chris Matthews in a March edition of Hardball that she hoped that Libby would eventually be pardoned. She told him, ""It kind of bothers me that there was this whole big crime being investigated and he got caught up in the investigation as opposed to in the actual crime that was supposedly committed."
Denis Collins said that the jury felt sympathy for Libby, and kept asking themselves, "What is Libby doing here?" He said that he didn't mean that he didn't feel that Libby was guilty of perjury and obstruction of justice, but that he was in court as a "fall guy." He quoted several of his fellow jurors as saying,"I wish we weren’t judging Libby. You know, this sucks. We don’t like being here.’ But that wasn’t our choice."
Libby added, "If Libby were pardoned, I would have no problem with that."
At least in the eyes of the jury, Libby was a scapegoat, whether for guilty others higher up in the administration, or for a prosecutor eager to get somebody in this affair for something, having failed to develop a case against anybody on the issues concerning which the grand jury convened.
The jury disagreed with the prosecutor and the judge. At least two jury members went so far as to endorse an eventual pardon.
You mention sentencing guidelines. You are apparently unaware that the Probation Office, after weighing all the factors, recommended a lesser sentence possibly involving home confinement or simple probation. It was simply not "Scooter" Libby who was sentenced. It was the Bush administration- and whether or not the judge and the prosecutor acted in a partisan manner, in the strict sense (i.e., to benefit the Democrats), the discrepancy between the sentence recommended by the probation office and the attitude fo the jury on one hand and the sentence actually recommended by the prosecutor and given by the judge is not a matter of degree, but of kind. "Scooter" Libby's sentence was- just as the President said- grotesquely inappropriate when all the circumstances are considered.
In fact, the sentence they handed down was so grotesquely disproportionate (especially in view of Libby's record, his prospect for recitivism, and the one point that everybody seems to agree about: that he was somebody's scapegoat- that there can be no reasonable doubt that its purpose was political rather than punative.
An ambitious judge and prosecutor had an opportunity to make headlines with a political blockbuster of a conviction (actually a rather pathetic nabbing of a minor functionary on collatoral issues after having failed to indict anybody on charges of actually outing Valarie Plame). Partisan was undoubtedly the wrong word. But there is no question that Fitzgerald and Walton had a different agenda than the probation office and the jury.
Now, as to Plame's status as covert, the statute is clear. In order to be a covert agent under the meaning of the law, the individual in question had to have had a covert assignment within five years of the disclosure; and that b) the government be taking affirmative steps to safeguard the
agent's covert status. Fitzgerald demonstrated that Plame met the first condition.
No evidence has yet been publicly adduced by Fitzgerald or by anyone else that Plame met the second. In fact, as you have observed, Plame's own sloppiness is exculpatory of anyone who might be charged under this statute. And matters the CIA is taking affirmative steps to conceal seldom become casual items of Washington cocktail conversaton!
Making a claim is simply not the same as backing it up.
It would be interesting to know not only why nobody was ever indicted for blowing Plame's cover, but why evidence that the CIA had taken affirmative steps to conceal Plame's undercover status has never come forward. Her cover (if any) is already blown at this point; nothing relating to the assignments themselves which remains a matter of national security would have to be revealed.
It would be a simple matter to verify. That it has not been speaks nearly as loudly as Fitzgerald's failure to get a substantive indictment in the chief matter he was investigating!
I do not disagree that the Bush administration, with its penchant for secrecy and scheming, shot itself in the foot in this case. But unless somebody in the administration (and not Plame herself) tipped off David Corn, no laws were violated.
BTW, at http://www.washingtonpost.com/wp-dyn/content/article/2007/02/16/AR2007021601705.html is an excellent critique of Fitzgerald by a man who was intimately involved in the framing of the law in question. He concludes that no laws were violated