For Once, Prosecution Without Persecution

This past Friday, Special Prosecutor Patrick Fitzgerald indicted Lewis “Scooter” Libby ’68 on five counts related to CIA officer Valerie Plame. Plame’s husband, former Ambassador Joseph C. Wilson, had criticized the Bush administration for “twisting” evidence to make the case for war in Iraq. Shortly after Mr. Wilson went public with his claims, syndicated columnist Robert Novak identified Plame as a CIA official. Now, more than two years later, the Vice President’s chief of staff has been indicted. However, the most interesting and least-reported part of the affair is not the potential indictment or involvement of Karl Rove, or any other top Bush officials. Rather it is the unbiased and apolitical nature of Fitzgerald’s investigation. Patrick Fitzgerald has led a tenacious and effective, while still nonpartisan and leak-proof, investigation. As Joe Conason wrote for, “whatever damage Fitzgerald may ultimately do, he is not an independent counsel unleashed by opposition forces to bring down the Bush administration. The president has endorsed his integrity and competence, and no one has uncovered a hint of a political motive or any conflict of interest.” Unfortunately, pundits in the media have been eager to levy criticism against Fitzgerald. As liberal New York Times columnist Nicolas Kristof wrote in a recent article, “We don’t know what evidence has been uncovered by Patrick Fitzgerald, but we should be uneasy that he is said to be mulling indictments that aren’t based on his prime mandate, investigation of possible breaches of the 1982 law prohibiting officials from revealing the names of spies.” (Kristof apologized to Fitzgerald in a follow-up column, but we can see how the words “special prosecutor” automatically raise alarm bells in a post-Starr world) Similarly, columnist John Tierney faults Fitzgerald for his objectivity, saying, “No one deserves to go to jail for leaking information to reporters without criminal intent. The special prosecutor was assigned to look for serious crimes, not to uncover evidence that bureaucrats blame other bureaucrats when things go wrong.” While these commentators were writing without knowledge of Fitzgerald’s indictments, they don’t seem to realize or acknowledge that lying under oath is a crime. This seems to be a case of selective memory. Conservatives were elated when Ken Starr, after spending $70 million and repeatedly violating rules regarding confidential grand jury testimony, impeached Bill Clinton on tremendously weak charges of perjury and obstruction of justice. Reckless prosecutors who subpoena unnecessary information never serve our nation’s best interests. Fitzgerald is not one of these. With the indictment, Fitzgerald has avoided the pitfall of charging everyone with a vaguely worded conspiracy charge. Instead he charged Lewis Libby on several specific instances of making false statements to the grand jury. Such a charge stems not from the incident itself, but from the investigation connected to the incident. In this situation, it would have been preferable to indict on the law that bans revealing the identity of undercover intelligence officers. Unfortunately, as Fitzgerald discussed during his press conference, “[The FBI] doesn’t send people out when $1 million is missing from a bank and tell them, “Just come back if you find wire fraud. If the agent finds embezzlement, they follow through on that.” Given this, Fitzgerald rightly felt that justice would be best served by perusing an easily provable crime. Patrick Fitzgerald faced a nearly impossible situation when he was appointed special prosecutor in the CIA leak case. One misstep in any direction would have prompted cries of outrage from the left and the right. Through his skill and determination, Fitzgerald has avoided the pitfalls of his position and returned a strong indictment to an America eager to see justice.