Scoot and Martha Stewart

Some people have asked me for my thoughts on the Scooter Libby indictment, so I thought I’d offer a brief explanation of what’s going on here as I see it and outline some of the dangerous trends I see this as reinforcing within our country.

To begin at the beginning, Joe Wilson was sent on a mission to Niger by the CIA to see if there was any evidence of WMD materials sourcing by Iraq in Africa. Wilson claimed to have found none, and wrote a now famous op-ed in the New York Times which was highly critical of the Bush administration. Joe Wilson’s wife is Valerie Plame, a CIA agent. Robert Novak wrote a column about Wilson in which he implied that Wilson got the job to go to Niger because his wife worked for the CIA.

This set off a firestorm, with claims that Novak has “outed” a CIA agent. Calls for an investigation as to who leaked this to Novak came from the liberal media, and eventually Patrick Fitzgerald was appointed as a sort of special prosecutor on the case.

It was thought by many at the time that this investigation would wrap up rather quickly. That is because there were serious doubts as to whether Plame was covered by the covert agent law which was supposedly violated by her outing. If she wasn’t covered by the law (which requires, among other things, that the “outer” knew about the law, and that agent in question have served overseas in the last five years), then a quick determination could be made to that effect and the investigation could be wrapped up.

On a side note, it turns out that a Senate investigation into various aspects of the Iraq war determined that in fact, Plame had gotten her husband the job to go to Niger, despite assurances from Wilson that this was all a smear.

Fast forward two years later, and Patrick Fitzgerald is indicting VP Cheney’s chief of staff Scooter Libby for perjury. Karl Rove barely escaped indictment. What is interesting here is that THERE WAS NO INDICTMENT OF ANYONE ON THE COUNT OF OUTING A COVERT CIA AGENT. In other words, the prosecutor could not find evidence of a crime, but in the course of his investigation, he put someone on the stand who for one reason or another, lied (or didn’t correctly recall facts) and will now be prosecuted on charges of perjury. Sound familiar? It should.

This is almost exactly what happened to Martha Stewart. Stewart was being investigated for insider trading, a charge for which there was not enough evidence to prosecute. But the FBI agents caught her in a lie, which is the equivalent to testifying under oath, and thus they prosecuted her for perjury. So what’s the problem with these two prosecutions you ask? Well, everything.

What both of these prosecutions open the door to is the opportunity for prosecutorial abuse. Now anyone can be investigated on some trumped up charge, and even if it turns out the charge has no merit, a prosecutor can harass you for two years until catching you in a lie or at least an apparent contradiction, and prosecute you for it. It is a method by which prosecutors can choose who to prosecute not for what the accused may have done, but for who they are. That is exactly what happened in both the Stewart and Libby cases. And it’s extremely distressing.

Imagine some legislator, media hack, or some frothing-at-the-mouth-crazed-blog-mob came after you, demanding an investigation for some trumped up crime that you didn’t commit. Previously, you may have welcomed an investigation which would presumably exonerate you of the accusation. But now you have to worry: if they are coming after you not because they thought you committed a crime, but because they simply hated you (you’re a “rich bitch” or are “connected to Haliburton”), now you have to worry that the true purpose of the investigation isn’t to determine if you’ve committed a crime, but to get you to make a slip of the tongue so that you inadvertently do commit a crime, and can thus be put away.

This is exactly what happened to Scooter Libby, who has many conversations with many reporters, is a lawyer himself and should know the punishments for perjury. He likely made unintentional errors in recollection and is now being prosecuted for it (Michael Ledeen agrees, John Hinderaker doesn’t). Regardless, it does seem clear to me that Fitzgerald couldn’t prosecute on the crime he was charged with prosecuting, and so he decided to spend however long it took (two years!!!) until he’d tripped someone up into committing perjury.

It’s hard to see how this qualifies as justice.

Ted Olson has some similar thoughts here.


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