November 1, 2005
Fishing License Indictment
We have been hearing
for a long time what a terrible thing it is to reveal the name
of a covert C.I.A. agent -- and it is a terrible thing because
that can be a life-and-death situation for the agent exposed and
a devastating setback for this country's ability to get people
in other countries to supply intelligence.
But it was quite
an anticlimax when the man who is accused of doing that -- Lewis
Libby on Vice President Cheney's staff -- is not even charged
with the crime for which a special prosecutor was appointed, with
extraordinary powers and an extraordinary budget.
situation is not unique. It is not uncommon for a prosecutor to
charge someone with a crime that did not even exist when the prosecutor's
investigation began. In other words, the crime was created during
the course of the investigation.
That leaves completely
aside the question whether the person accused is in fact guilty
or innocent of the crime with which he is charged. And presumably
if the prosecutor had enough evidence to charge the accused with
the crime for which the investigation was authorized in the first
place, he would have done it.
One of the legal
problems is that it is by no means clear that a crime was actually
committed in this case.
It is one thing to
tell the world the name of some C.I.A. agent operating in Iran
or North Korea, for that agent may never come back alive as a
result of being outed. It is something else to say that Joe Wilson
got the assignment to go to Niger because his wife sits behind
a desk at C.I.A. headquarters in Virginia.
Put bluntly, too
often the authorization of an investigation is essentially a fishing
license to enable the prosecutor to find something to prosecute,
whether or not he can get evidence to prosecute the crime he was
supposed to be investigating.
In the case of Lewis
Libby, the case against him consists essentially of the fact that
he remembers various conversations with reporters differently
from the way those reporters remember those conversations.
Any married couple
who have gone on vacation together and come back with the husband
remembering some things differently from the way the wife remembers
them can see why this can be a hard case in which to prove perjury,
much less the original crime that was supposed to be investigated.
prosecutors nailed Martha Stewart, so they may be able to nail
Lewis Libby. In the meantime, it is fascinating to see people
who were downplaying an organized campaign of perjury and subornation
of perjury by Bill Clinton a few years ago, now touting the indictment
of Lewis Libby as proof that the whole Bush administration is
There is no talk
today about "move on," with or without the dot com.
There is no one saying "get over it." More important,
there is no orchestrated campaign of character assassination in
the media against special prosecutor Patrick Fitzgerald, the way
there was against special prosecutor Kenneth Starr during his
investigation of Bill Clinton's perjury.
There is no need
to demonize Mr. Fitzgerald. What really needs serious re-examination
are laws under which special prosecutors are issued unlimited
fishing licenses to go see if they can trip someone up on inconsistencies
in their statements about something that was not even a crime
in the first place.
After any special
prosecutor has spent millions of tax dollars and is caught in
the media spotlight, the temptation is to find something, anything,
rather than say it has not been worth the expense or the bother.
A regular prosecutor has many other cases to turn to if one particular
case does not look worth investing more time and money in, when
other cases are demanding attention.
A special prosecutor
has only that one case and so has no incentive to weigh alternatives
like a regular prosecutor.
Even aside from cases
involving a special prosecutor, there are far too many complicated
laws regulating too many things for which people can easily be
indicted, leading to a media frenzy -- and often a biased frenzy
To the liberal media,
the accused is "innocent until proven guilty" -- when
the accused shares their political views. Otherwise the standard
is "the appearance of impropriety."
2005 Creators Syndicate