Cold Fury

Harshing your mellow since 9/01

History, on endless repeat

Any of this sounding familiar at all, to anybody?

U.S. v. I. Lewis Libby is worth revisiting to set the record straight. It also illustrates the damage that can be done to national security by a special counsel who, finding no crime, generates through his investigations the alleged offenses he seeks to prosecute.

With a virtually unlimited budget, a malleable mandate, a single case and little in the way of oversight or time constraints, the special counsel operates outside the usual system of formal and informal checks on prosecutorial conduct. This gives him the power to transform executive branch slip-ups, oversights and faulty recollections into criminal offenses capable of crippling the White House and wreaking havoc on individuals and their families.

According to the conventional view, in the summer of 2003 Mr. Libby compromised national security by unlawfully outing a covert CIA agent. Mr. Libby’s supposed purpose was to punish the agent’s husband, who challenged President George W. Bush’s assertion in his 2003 State of the Union address that the British government learned that Iraq had sought to purchase African uranium. According to the standard anti-Bush account, when Mr. Libby became enmeshed in a federal investigation, he lied to conceal his crime and protect Mr. Cheney.

This account is false in all essential respects, as Mr. Fitzgerald—since 2012 a partner in the Chicago office of the Skadden Arps law firm—had reason, as well as an ethical obligation as an officer of the court, to know.

Scooter Libby did not “out” CIA employee Valerie Plame. That was done by then-Deputy Secretary of State Richard Armitage, a critic of the conduct of the Iraq war. Mr. Armitage disclosed to columnist Robert Novak that Ms. Plame, who at the time held a desk job in the CIA’s Counterproliferation Division, urged the agency to send her husband, retired Ambassador Joseph C. Wilson, to Africa in early 2002 to investigate whether Iraq had sought uranium. Presidential aide Karl Rove and then-CIA Director of Public Affairs Bill Harlow confirmed Mr. Armitage’s disclosure for Novak’s July 14, 2003, column. (Novak died in 2009.)

Mr. Fitzgerald didn’t charge anyone with leaking Ms. Plame’s identity or disclosing classified information to reporters. From the moment he took over the FBI leak investigation in December 2003, he knew that Mr. Armitage was the leaker but declined to prosecute him, Mr. Rove or Mr. Harlow because the disclosure of Ms. Plame’s identity wasn’t a crime and didn’t compromise national security.

Having failed to find any underlying crime, Mr. Fitzgerald nonetheless pressed on for someone to prosecute, eventually focusing on Mr. Libby, whose trial became a contest of recollections. The excruciatingly inconsequential question on which his conviction turned was whether, as Mr. Libby recalled, he was surprised to hear NBC’s “Meet the Press” host Tim Russert ask him about Ms. Plame in a phone call on July 10 or 11, 2003.

Ms. Miller was the only reporter who asserted that Mr. Libby volunteered information about Mr. Wilson’s wife. And Mr. Fitzgerald attached special importance to the journalist’s June conversation with Mr. Libby, declaring, at the 2005 news conference following Mr. Libby’s indictment, that “Mr. Libby was the first official known to have told a reporter when he talked to Judith Miller in June of 2003 about Valerie Wilson.”

If Ms. Miller had testified accurately, she would have dealt a severe blow to Mr. Fitzgerald’s central contention that Mr. Libby was lying when he said he was surprised to hear Russert mention Ms. Plame.

In closing arguments, Mr. Fitzgerald insisted that a “cloud” hung over Vice President Cheney, at whose behest, the prosecutor insinuated, Mr. Libby had compromised national security. Ms. Miller’s revelation—that “it was hard not to conclude that my testimony had been wrong”—erases the cloud that Mr. Fitzgerald’s prosecution, abetted by an enthusiastic media, put over the vice president. At the same time, Ms. Miller’s book casts a dark shadow over Mr. Fitzgerald’s prosecution of Mr. Libby. And it raises troubling questions about what the prosecutor told and did not tell other prosecution witnesses to shape and reshape their memories.

Oh, it raises far more troubling questions than that: it raises the question of just what the hell is WRONG with us, that we sit back and allow the unconstitutional, squalidly banana-republic-style position of “special counsel” to disgrace this nation by its continued existence? It is nothing more nor less than one of the handiest tools in the Deep State box—very useful for tuning, tightening, and maintaining its strangulating chokehold; reining in its (very occasional) antagonists; or just putting the fear of God into all and sundry now and then, a reminder of who’s REALLY the boss around here. Has any truly important or even worthwhile purpose EVER been advanced by its use? Even once?

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