The unwarranted uproar among the punditocracy over President Bush’s commutation of part of I. Lewis “Scooter” Libby’s sentence is indicative of the sorry state of this nation’s public political discourse. The left is agitated because Bush spared Vice President Cheney’s right-hand man a humiliating prison sentence for lying in an investigation about his knowledge of the leak of CIA agent Valerie Plame’s identity. Additionally, there are protestations against the right’s inconsistent stand between the Libby case and President Clinton’s impeachment for perjury nearly ten years earlier. On the other side, the right is equally agitated over Bush’s failure of nerve in granting what they see as an incomplete, equivocating, partial commutation of the sentence rather than a full and unconditional pardon. Such a pardon would have wiped out the criminal conviction itself, along with the fine and the probation that Bush’s partial commutation left intact.
But this uproar is over a red herring, since it misses the real injustice of the case. Bush should have granted Libby a full pardon precisely because Special Prosecutor Patrick Fitzgerald’s investigation was the latest in a long train of abusive federal criminal investigations. These investigations are symptoms of an underlying disease: a Department of Justice that is out of control, and a special prosecutor who emulates the tactics of the department from which he is supposed to have some independence. As such, there was no reason to expect Fitzgerald to show restraint when faced with the rule of law. Few federal prosecutors show restraint these days. In practice, he didn’t: even though Fitzgerald knew virtually from the start of the investigation that there was no prosecutable crime that had been committed—Plame was almost certainly not protected by the statute prohibiting the disclosure of certain clandestine CIA agents’ identities—he bulldozed through the ranks of the Fourth Estate like a common drunkard (on power, however, rather than on booze).
Fitzgerald managed to put then-New York Times reporter Judith Miller in jail for eighty-five days for contempt, on account of her principled refusal to hand over her confidential source notes. She changed her mind when her source—Libby—waived his confidentiality. Similarly, Fitzgerald forced Norman Pearlstine, the editor-in-chief of Time Magazine, to hand over the notes of Time reporter Matthew Cooper, despite Cooper’s pledge to keep his source confidential. In the process, any naïve notion that something remained of a federal confidential source privilege for reporters was dashed beyond repair.
When no crime has been committed, there is something fundamentally wrong – and dangerous – when a federal prosecutor nonetheless constructs an indictable crime by finding some witness who will tell something other than the truth, the whole truth, and nothing but the truth. (It is a felony, it should be noted, to lie to a federal investigator, even when not under oath, and it is perjury to lie under oath.)
For that reason, conservatives correctly argue that Bush should have thrown out the entire conviction, not just part of the sentence. Indeed, I predict that is what Bush will do if Libby loses his appeal in the Court of Appeals for the District of Columbia Circuit. Part of the purpose of the commutation was to leave the conviction intact—and the appeal alive. The appeals court could then do what Bush did not see fit to do—throw out the case. However, if the appeals court affirms Libby’s conviction, the odds favor Bush giving Cheney’s right-hand man a full and unconditional pardon. Libby would deserve it, not because he acted well or wisely in lying to Fitzgerald, but rather because Fitzgerald abused his power by luring Libby into a lie when there was nothing legitimate for Fitzgerald to investigate.
In my opinion, there is one crime that Libby, in addition to his boss Cheney, might usefully and properly be investigated for. They have arguably committed gross violations of the Constitution, federal laws, and the international humanitarian law of war in the course of waging the war on terror, and have opened themselves to credible accusations of war crimes. Now there is an investigation that friends of the Rule of Law could support. But the phony conviction for lying to the special prosecutor, on a subject on which the prosecutor had no right to inquire, should not garner support from any self-respecting liberal.