By Peter Scheer
The conviction of I. Lewis “Scooter” Libby on charges of obstruction of justice, perjury, and lying to the FBI (yes, lying to the FBI, even when not under oath, is a felony) ratchets up the risks of working in a high level job in the executive branch. Whether that’s a good or a bad thing depends almost entirely on one’s political affiliations.
To conservatives, the Libby prosecution is the latest example of Washington’s tendency to criminalize the ordinary rough-and-tumble of politics. They point to the fact that Libby was never charged with the outing of CIA operative Valerie Plame–the triggering event of a massive investigation that, in the end, ensnared Libby as its only victim–but merely for lying about when he spoke to certain reporters and what he told them. To liberals, lying under oath to a grand jury is a grave matter that cannot be, and should not be, dismissed as politics as usual.
If this debate sounds familiar, that’s because the same arguments were made with equal vigor and conviction–only in reverse–during the impeachment of Bill Clinton for the “high crime” of lying under oath.
Back then, liberals defended Clinton as the victim of a high-stakes political attack in which Republicans were using criminal charges to invalidate an election. They emphasized that the embattled president had not been charged with a substantive crime bearing on his official duties, but only for lying about extramarital sex, purely a personal matter. Republicans countered that perjury, particularly when committed by public officials, is a serious crime demanding condemnation.
The Libby trial also raises significant questions about the use of special prosecutors in politically sensitive cases. Unlike US attorneys and Justice Department lawyers, special or “independent” prosecutors are accountable to no one and pursue their investigations with unlimited resources for an indefinite time, greatly enhancing the odds that a target, any target, will be indicted and tried. Does the use of these prosecutors threaten civil liberties?
For Democrats the answer is “Yes” if the special prosecutor happens to be Clinton’s nemesis Ken Starr, “No” if the prosecutor is Patrick Fitzgerald, the special counsel in Libby’s case. For Republicans’ take on this issue, just invert the names of the prosecutors. So much for principled debate on an important issue of public policy.
These role reversals are not merely ironic, but reflect the hypocrisy of all parties involved in political scandals, Washington’s favorite pastime. This includes, unfortunately, the press.
The Plame investigation and ensuing trial of Libby have given the public a rare insight into the relationship between Washington reporters and government insiders who are their confidential sources. Leak investigations almost never result in disclosure of reporters’ anonymous sources. The Libby case is the rare exception because special prosecutor Fitzpatrick took the extraordinary step of subpoenaing reporters and getting a federal judge to jail those who refused to discuss their sources–a sanction ultimately imposed on only one media witness, former New York Times reporter Judith Miller.
The result was the bizarre and unsettling spectacle of journalist after journalist, as witnesses in the Libby trial, testifying publicly about their conversations with a witness to whom they had promised confidentiality. The reporters testified, rather than risk going to jail, on the basis of “waivers” in which Libby ostensibly authorized them to disclose his identity and testify about their conversations to the grand jury. But since their testimony resulted in his indictment, it is almost certain that Libby’s waivers were, in fact, not voluntary, but coerced.
Having previously testified to the grand jury, the reporters could not legally refuse to give the same testimony at Libby’s trial. Nonetheless, public confidence in the media, already low, could not have been improved by the image of prominent reporters testifying about their conversations with a source despite promises that they would never, under any circumstances, do that.
The Libby trial also exposed some members of Washington’s media establishment as willing players in the administration’s strategy of countering criticism of its Iraq policy by discrediting its critics personally. Journalists who pride themselves on their tough-minded independence from government showed scant reluctance to be manipulated by their administration sources. The picture presented at trial was of journalists whose overriding goal is access to power–not as a means to an end, but as an end in itself.
Did anyone benefit from the Libby trial? As wars are good for undertakers, political scandals in Washington are good for lawyers–and the Libby case was no exception. Fitzpatrick’s no-stone-unturned investigation generated employment for an army of Washington lawyers whose contacts and advice will be in even greater demand following Libby’s conviction.
That’s a good thing . . . if you’re a Washington lawyer.
Peter Scheer, a lawyer and journalist, is executive director of CFAC