November 1, 2005
Fishing License Indictment

By Thomas Sowell

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.

Unfortunately, this 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.

However, 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 corrupt.

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 at that.

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."

Copyright 2005 Creators Syndicate

Thomas Sowell

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The Cover-Up Worked - E. J. Dionne
Let the Great Debate Begin - George Will
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