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.