What the Libby Prosecution Was About

A column by Richard Cohen in today's Washington Post is the latest of many
signs that flexible liberals of the political establishment have adopted the
main neoconservative talking point on the Libby case. The motives of the two
groups are slightly different, of course. The flexibles want consensus -- ever
eager to concentrate on things that "unite not divide us." Clemency is a unifier
without regard to the facts. The neoconservatives, by contrast, know the truth
of the case reasonably well, but they very much want others not to know or
care.

Cohen acknowledges that it is "not an entirely trivial matter" for a government
official to lie to a grand jury, and he adds: "I cannot approve of lying under
oath." But he tells his readers that the charges were disproportionate and the
prosecutor, Patrick Fitzgerald, "made a mountain out of a molehill." Maybe, he
concludes, Libby should be pardoned; certainly his sentence should be commuted.

All this accepts the talking point. The prosecutor conceded that he could not
learn enough to prosecute the underlying crime of "outing" an agent under the
Espionage Act. This abstention is taken by apologists for Libby to demonstrate
that there was no underlying crime. Sometimes they go a step further and imply
that Fitzgerald himself admitted that he thought there was no underlying crime.
He did nothing of the sort.

Whatever one thinks of the defendant, it is worth getting clear about the facts
of the case -- dare one say, for the sake of truth?

A. Fitzgerald determined that Valerie Plame was a covert agent whose name had
been leaked. This was a serious crime under the Espionage Act, which endangered
the work of American intelligence everywhere by its malignant example. It also
endangered every contact Plame had made under cover. It also threatened Plame
herself, even as it brought her career to an undesired and premature end. All
this Fitzgerald said clearly. Repeat: he determined that to leak her name was a
crime. It was a crime committed by X.

Now, who was X?

B. Fitzgerald had no interest in secondary leakers, or sprayers of her name. No
interest, therefore, in Armitage, Novak, or the reporters. They merely passed on
a leak that should be traceable to a single source. He would have prosecuted the
source had he been able to detect it with certainty.

C. Fitzgerald apparently believed that the source was the vice president; but he
could not prove this. Hence his conclusion that there is "a cloud over the vice
president." He took that phrase, which the defense had flippantly introduced on
the assumption that it would embarrass him, and, turning the tables, he chose to
repeat the phrase several times in his closing statement. There is a cloud over
the vice president.

D. He examined Lewis Libby very extensively in order to try to get information
about who ordered him to leak the name. The smokescreen of lies told by Libby
defeated the prosecutor's sustained attempt to discover who ordered the leak.

E. He prosecuted Libby for false statements, perjury, and obstruction of justice
because his lies prevented the discovery of the truth about the leak of the name
of a covert agent.

F. He did not prosecute Armitage, Novak, or the reporters because they did not
lie to the FBI or to the grand jury. He charged only Libby, because only Libby
did lie. Had Libby simply fallen silent, he would not have been prosecuted for
perjury or false statements.

G. Fitzgerald said that the law is like an umpire, and Libby threw sand in the
eyes of the umpire. A careful and accurate figure of speech, which crystallizes
the meaning of the last sentence of F above. It was Libby's positive decision,
not just not to tell the truth, but to try to make a false story prevail, that
made Fitzgerald determine to prosecute him rigorously. Very likely (though this
much is speculative) the prosecutor and the judge both had a strong feeling of
indignation against a person who tried to twist the public understanding of the
truth: an indignation they would not feel regarding a person who by his silence
said, in effect, "I am not an honest person in this matter; I can't afford to
be honest." Silence is a refusal to assist the cause of finding the truth; but
that is not the same as actively seeking to corrupt the search. The latter
posture harms all honesty in public life and it helps criminals to thrive.
Indignation is the right feeling to have about it.