The Libby Indictment

Patrick Fitzgerald made an extremely refreshing appearance yesterday in his press conference. It reminded me a bit of Archibald Cox's press conference in October 1973, when he explained why he had to receive the actual Nixon tapes to continue his role as Watergate special prosecutor. Within a day or two he had been fired by Robert Bork, after Attorney General Elliot Richardson and his deputy William Ruckelshaus had refused Richard Nixon's order, delivered through Al Haig, to fire him, leaving Bork, then Solicitor General, in charge. (In his famous confirmation hearings, Bork told the Senate that he expected Cox to be replaced by a new Special Prosecutor, even though on the night that he fired Cox, Press Secretary Ron Ziegler announced that the Special Prosecutor's office had been abolished and the Watergate investigation had been returned to the Justice Department.) Both Cox then, and Fitzgerald know, calmly and carefully went through exactly what they were doing and why, with particular attention to explaining the requirements of the legal system within which they had spent their lives, and which remains, apparently, the last reliable safeguard we have among the Anglo-American institutions that it has taken almost nine centuries to build up. For nearly a whole hour we watched a dedicated, capable public servant who felt no need to either posture or spin because he totally believed in what he was doing. It was an unusual and somewhat uplifting experience.

Many will be disappointed at Fitzgerald's handling of the case, because his only indictment relates to Libby's allegedly false statements before the Grand Jury. He declined to bring charges either for revealing the name of a covert CIA operative, or for leaking classified information. The former charge would have raised some very tricky evidentiary problems, since Libby and "Official A" at the White House, whom the New York Times identifies this morning as Karl Rove, seem to have avoided using Valerie Plame Wilson's actual name, and Judith Miller's famous notebook entry misspelled it. (The indictment managed to stay away from the question of whether Miller was telling the truth when she said she couldn't remember how the name got there.) As for the latter charge, my earlier post questioned whether it merited an indictment, and I was delighted to see that Patrick Fitzgerald agreed with me, and for exactly the same reason. The Act forbidding the transfer of classified information to unauthorized persons, as Fitzgerald pointed out, does not have the reach of Britain's Official Secrets Act. To find a defendant guilty, the government cannot rely simply upon the Secret stamp on the document, but must prove that the release did actual damage to the national security of the United States. That was the issue in 1973 in the trial of Daniel Ellsberg, and he might easily have been acquitted of giving away the Pentagon Papers, had the judge not had to drop the case altogether when it developed that the Nixon Administration had burglarized Ellsberg's psychiatrist's office and offered the judge himself the directorship of the FBI. (Once again it occurs to me that younger readers may have trouble taking in these facts--but they are true all the same.) In making this point, Fitzgerald actually struck a blow for the freedom of the press.

What does emerge from the facts in the indictment, however, is that the problem of Joseph Wilson's disclosure that he had been sent to Niger to find out whether there was any basis to the yellowcake rumor, that he had found that there was not, and that the Administration had blown off his conclusions, had engaged the highest levels of the Administration, including an unnamed Undersecretary of State, then-press secretary Ari Fleischer (whose resignation allowed his successor Scott McClellan to tell the press that he was sure Libby and Rove were not involved in the leak), two other members of the Vice President's staff, "official A" (see above), and the Vice President himself. (I originally speculated that the Undersecretary of State was John Bolton, but today's Times says it was Marc Grossman.) Their problem was to discredit Wilson. What has received so little attention is how lame their main argument--that Wilson's wife had something to do with sending him to Niger--was. Niger, a landlocked country in the middle of West Africa, is not a place that one would go on a boondoggle, and Wilson was well-qualified for the trip, unless one believes that the purpose of the trip should have been to back up the false allegation rather than to find out the truth. But Valerie Plame Wilson's status was the first thing they had discovered about Wilson, and after he went public, they decided to use it. And Libby's behavior with Miller suggests that he knew very well he was flirting with the law.

The issue of the Administration's use of various means to try to control dissent from within the government is not confined to this case. Certainly it is a matter for public concern, and the appropriate venue is a Congressional investigation. It seems quite impossible, however, that either house would pass a resolution authorizing one at the present time. This leaves the burden up to the press, which has not been up to it up until now. Certainly the White House press corps now has to decide whether they are going to continue to accept Scott McClellan's refusal to answer questions about the roles of Rove and Libby, now that they are a matter of public record. (Undoubtedly he will have to repeat his stock no-comment five or ten times next Monday or Tuesday, but after that they will probably give up.) In short, this is a political matter that requires a political response--and unfortunately, the next election is still a whole year away.

The Administration has lost ground on at least two fronts during the last month. It had to lift its suspension of the Davis-Bacon Act with respect to Katrina relief projects, ensuring, at least in theory, that the hurricane will not cut wages in the Mississippi Delta still further. And because conservative groups forced the White House to withdraw Harriet Miers, liberals will finally, it seems, have the backbone to fight an extreme conservative nominee with no holds barred. (The official excuse of the White House--that they would not release the documents the Senate committee was going to ask for--was absurd. They had refused to release White House documents on John Roberts, who sailed right through.) But at the same time, Katrina is becoming the excuse for extraordinary cuts in programs ranging from student loans to medicaid--confirming my earlier posting that the Republicans will continue to treat any crisis as an excuse for pushing their own agenda. The appointment of an extreme conservative could easily lead to a filibuster and the revival of the "nuclear option." The crisis in American politics will continue for a long time, and I urge my readers to devote plenty of time to their most beloved works of art, history and literature, the beauty of the outdoors, and their closest relationships, to sustain themselves until events allow us finally to move in a new and better direction.