Too Bad for Libby, the Media, Jury, and Fitzgerald aren't Fair

Our title, borrowed from the comments of one of our valued, critical readers seems tongue in cheek. It's not. We truly believe Libby is innocent of all wrong doing and on the receiving end of a political witch hunt. But this country is no stranger to prosecutors more intent on making a name for themselves than seeing justice done. Eliot Spitzer comes to mind as do those imperious pinheads who trumped up charges against Martha Stewart. (Of course we don't include Ken Starr in that generalization!)

Something is wrong when prosecutors find there was no original crime committed, but who then must make up a procedural crime to cover themselves and justify the enormous cost of the investigation.

That's prosecution for prosecution's sake, not justice.

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The Libby Travesty
(Subscription Required)
March 7, 2007; Page A16

The word "guilty" had barely crossed the airwaves yesterday in the perjury case of Scooter Libby before critics were calling it proof that President Bush "lied us into war" and demanding that Dick Cheney be strung up next. Maybe now Mr. Bush will realize that this case was always a political fight over Iraq and do the right thing by pardoning Mr. Libby.

The conviction is certainly a travesty of justice, though that is not the jury's fault. The 11 men and women were faced with confusing evidence of conflicting memories in a case that never should have been brought. In the end, they were persuaded more by prosecutor Patrick Fitzgerald's story line that Mr. Libby, a former aide to Mr. Cheney, had lied to a grand jury about what he knew when about the status of CIA official Valerie Plame, the wife of Bush critic Joseph Wilson.

In hindsight, the defense seems to have blundered by portraying Mr. Libby as the "fall guy" for others in the White House. That didn't do enough to rebut Mr. Fitzgerald's theory of the case, and so the jury seems to have decided that Mr. Libby must have been lying to protect something. The defense might have been better off taking on Mr. Fitzgerald for criminalizing political differences.

For that, in essence, is what this case is really all about. We learned long ago -- and Mr. Fitzgerald knew from the start of his probe in 2003 -- that Mr. Libby was not the source of the leak to columnist Robert Novak that started all this. Mr. Libby thus had no real motive to cover up this non-crime. What he did have strong cause to do was rebut the lies that Mr. Wilson was telling about the Administration and Mr. Cheney -- lies confirmed as lies by a bipartisan report of the Senate Intelligence Committee in 2004.

Mr. Libby did talk to some reporters about the Administration's case for war in 2003, and he did mention Ms. Plame in some cases. So the jury apparently decided that, when asked about those conversations by the FBI and grand jury, he had lied about his own sources of information about Joe Wilson and his wife. In other words, he has not been convicted of lying to anyone about the case for war in Iraq, or about Mr. Wilson or his wife.

Rather, he has been convicted of telling the truth about Mr. Wilson and Ms. Plame to some reporters but then not owning up to it. One tragic irony is that if Mr. Libby had only taken the Harold Ickes grand-jury strategy and said "I don't recall," he probably never would have been indicted. But our guess is that he tried to cooperate with the grand jury because he never really believed he had anything to hide. This may also explain why Mr. Libby never retained an experienced Beltway attorney until he was indicted.

None of this has stopped critics of the war from trying to blow this entire case into something far larger. Senate Majority Leader Harry Reid hailed the conviction as proof that the White House tried to "manipulate intelligence and discredit war critics." But the charges against Mr. Libby had nothing to do with intelligence, and Mr. Wilson was himself so discredited by summer 2004 that the John Kerry campaign dropped him as a spokesman once the Senate exposed his deceit.

What Mr. Reid and others are doing is showing how much all this really has been about a policy dispute over Iraq. The fact that they are now demanding Mr. Cheney's head is further evidence of the political nature of this entire episode. But it should also be a warning to Mr. Bush and his advisers that they too bear much responsibility for Mr. Libby's conviction.

Rather than confront Mr. Wilson's lies head on, they became defensive and allowed a trivial matter to become a threat to the Administration itself. They allowed Attorney General John Ashcroft to recuse himself and Mr. Fitzgerald to be appointed even though Justice officials knew that Deputy Secretary of State Richard Armitage had been the first official to leak Ms. Plame's name to reporters. Mr. Libby got caught in the eddy not because he was dishonest but because he was a rare official who actually had the temerity to defend the President's Iraq policy against Mr. Wilson's lies.

As for the media, most of our brethren were celebrating the conviction yesterday because it damaged the Bush Administration they loathe. But they too will pay a price for holding Mr. Fitzgerald's coat. The Bush Administration will soon be history, but the damage Mr. Fitzgerald has done to the ability to protect media sources and to the willingness of government officials to speak openly to reporters will last far longer.

Mr. Bush will no doubt be advised to wait for the outcome of an appeal and the end of his Administration to pardon Mr. Libby. We believe he bears some personal responsibility for this conviction, especially for not policing the disputes and insubordination in his Administration that made this travesty possible. The time for a pardon is now.


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