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RWR8189 J ournalists have reacted to the indictment of Scooter Libby more or less along party lines. The New York Times editorial page noted that the per jury, obstruction of justice, and false statement charges filed by Patri ck Fitzgerald, the special prosecutor, are "very serious," adding that " the Republicans' attempts to belittle the charges are quite a switch, co nsidering that many of these same politicians gleefully helped to impeac h President Bill Clinton on similar charges in a much less serious conte xt." The Wall Street Journal editorial page countered that "Libby was de fending administration policy against political attack, not committing a crime" and suggested that the indictment "looks like a case of criminal izing politics." On both ends of the political spectrum, however, there has been wide praise of Fitzgerald's restraint and professionalism in fo cusing on a relatively clear-cut case of false statements rather than in dicting 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 ind ictments are an embarrassing confirmation of the old Washington rule tha t, when special prosecutors can't prove a crime, they indict the target for obstructing the investigation. Far from being typical behavior, indi cting suspects for nothing more than false statements or perjury is a vi ce largely restricted to special prosecutors and independent counsels. A nd, although Libby's alleged lies to protect his boss may appear more se rious than Bill Clinton's self-interested lies about sex, neither Clinto n nor Libby prevented the special prosecutor from proving an underlying crime. In fact, there's strong reason to conclude that no underlying cri me was committed. Unlike the Starr investigation, moreover, the Fitzgera ld investigation represents a disaster for the First Amendment and may d o long-lasting damage to political discourse in Washington. T he praise for Fitzgerald focuses on the charges he did not bring. He di d not prosecute Bush administration officials or journalists under the r arely invoked law he was originally appointed to investigate--the Intell igence Identities Protection Act, which forbids the knowing disclosure o f the identity of a covert government agent. He did not invoke a broader provision that makes it a crime to disclose classified information--a s tatute 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 th at Libby lied repeatedly before the grand jury about when and how he fir st learned that Joseph Wilson, a critic of the administration's case for the Iraq war, was married to Valerie Plame, a CIA agent. Showing prosec utorial experience that Starr lacked, Fitzgerald at least brought a fals e 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 perjur y and obstruction charges was that Libby's alleged lies made it harder f or the special prosecutor to know whether a crime had been committed. "W hat we have when someone charges obstruction of justice is the umpire ge ts sand thrown in his eyes," Fitzgerald said, using a labored baseball m etaphor. "He's trying to figure out what happened, and somebody blocked their view." The metaphor, however, is unconvincing: "It's more like criminalizing som eone for arguing with the umpire's ball or strike call," says Harvard La w Professor and tnr contributor William J Stuntz. Libby's alleged obstr uction did not block Fitzgerald's ability to decide whether he violated the Intelligence Identities Protection Act; Fitzgerald could have conclu ded months ago that there was no violation. To breach the meticulously d rafted law, a person with access to classified material who learns the i dentity of a covert agent has to intentionally disclose information iden tifying the agent, knowing that this information will blow the agent's c over and that the United States is taking affirmative measures to concea l the agent's identity. In their exemplary brief filed in March 2005, a consortium of news organi zations argued that there were serious questions about whether Plame qua lified as a covert operative under the law. She was working at a desk jo b in Langley in July 2003, when Robert Novak first revealed her name, an d arguably had not been assigned to duty outside the United States in th e past five years, as the law requires. Moreover, there was little evide nce that the government was taking "affirmative measures" to conceal her identity. Given the continuing uncertainty about Plame's status, it's u nlikely that Libby both knew she was a covert agent in 2003 and disclose d her identity intentionally. In his press conference, Fitzgerald abruptly shifted gears when questione d about why he brought perjury and obstruction charges without finding a n underlying violation of the law. He suggested that it didn't matter wh at law Libby violated. "When you do a criminal case, if you find a viola tion, 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 accoun table," he said self-righteously. This is the usual last defense of the special prosecutor, but Fitzgerald suggested that he was doing what ordi nary prosecutors do all the time. "When I got to Chicago, I knew the peo ple 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 fals e statements are relatively rare in federal criminal prosecutions. In 20 04, 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 revi ew of Fitzgerald's record as an ordinary prosecutor suggests he has pres ided over more perjury, obstruction, and false statement cases than most . But, when he has issued indictments on those charges alone, it's usual ly been for bit players covering for people indicted for major crimes. I t's special prosecutors who are known for indicting suspects for making false statements alone, without charging anyone with any other indictabl e offense. The closest analogue to the Libby indictment is not, in fact, Starr's cha rges 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 smea r Kathleen Willey, who alleged that Clinton groped her in the Oval Offic e Steele was Willey's former friend. She initially told Newsweek's Mich ael Isikoff that Willey had come to her house to tell her about the adva nce on the night it occurred, but then recanted, told Isikoff she had li ed at Willey's request, and repeated this recantation to Starr's FBI age nts and two grand juries. Starr, outrageously, indicted Steele on three counts of obstruction of justice and one count of making false statement s to federal agents--much like Fitzgerald. In the end, Starr's last stan d ended in a hung jury, a warning that Fitzgerald may have a hard time c onvicting Libby as well. Just as Democrats were right to denounce Starr for criminalizing insignif icant and immaterial lies, Republicans are right to denounce Fitzgerald for the criminalization of political differences. It's been clear from t he beginning that Libby, Karl Rove, and Dick Cheney were trying to discr edit a critic of the administration, not trying to disclose the identity of a covert agent. But what makes Nadagate even worse than Monicagate...
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