Commentary Magazine


Topic: federal prosecutor

Flotsam and Jetsam

The Associated Press or National Review? On SestakGate: “Crimping his carefully crafted outsider image and undercutting a centerpiece of his 2008 campaign, President Barack Obama got caught playing the usual politics — dangling a job offer for a political favor in the hunt for power. … Obama has a political problem. Because what did take place was backroom bargaining, political maneuvering and stonewalling, all of which run counter to the higher — perhaps impossibly high — bar Obama has set for himself and his White House to do things differently. The White House’s reluctant acknowledgment of the chain of events shone a light on the unseemly, favor-trading side of politics — and at an inopportune time for Obama and Democrats as they seek to keep control of Congress.”

American Spectator or Politico? “The White House’s failure to designate a single spokesperson — with a corresponding schedule of media updates to show the administration in action — may have been intended to convey an all-hands-on-deck approach to the BP oil spill. Instead, it has created a public relations vacuum, being filled by critics of the president’s approach. And the one man who might have filled that role — Interior Secretary Ken Salazar — already has had a pair of high-profile stumbles, with not one, but two of his comments effectively retracted from the White House podium.”

Maureen Dowd or Michael Gerson? “Once more, he has willfully and inexplicably resisted fulfilling a signal part of his job: being a prism in moments of fear and pride, reflecting what Americans feel so they know he gets it. … Too often it feels as though Barry is watching from a balcony, reluctant to enter the fray until the clamor of the crowd forces him to come down. The pattern is perverse. The man whose presidency is rooted in his ability to inspire withholds that inspiration when it is most needed.”

A Hamas spokesman or a liberal Democrat candidate for the House? “For many Jews the birth of Israel is a celebration, but for the Palestinians it was the nakba, a catastrophe. There’s no safety or security in barring people from their homeland.”

The mayor of the city attacked on September 11 or a CAIR spokesman? On the proposed mosque to be built at Ground Zero: “I think it’s fair to say if somebody was going to try, on that piece of property, to build a church or a synagogue, nobody would be yelling and screaming. … And the fact of the matter is that Muslims have a right to do it, too.”

The Onion or the Associated Press? “The case against four men accused of plotting to bomb New York synagogues and shoot down military planes will not focus on whether they were members of a terrorist group, a federal prosecutor said yesterday. … The trial is ‘going to be about whether these guys were going to blow something up,’ Assistant US Attorney David Raskin.”

“Constitutional conservative” or Constitutional radical? “Rand Paul’s interview with the Russian government propaganda channel Russia Today is getting a lot of attention today for his assertion that he opposes the American tradition of granting citizenship to everyone born in the United States.” And what’s he doing talking to a Russian propaganda outfit?

Bill Clinton or spokesman for the National Right to Work Foundation? On labor unions attacking Blanche Lincoln: “National labor unions [have] decided to make Lincoln ‘the poster child for what happens when a Democrat crosses them. … In other words, this is about using you and manipulating your votes to terrify members of Congress and members of the Senate from other states.’”

The Associated Press or National Review? On SestakGate: “Crimping his carefully crafted outsider image and undercutting a centerpiece of his 2008 campaign, President Barack Obama got caught playing the usual politics — dangling a job offer for a political favor in the hunt for power. … Obama has a political problem. Because what did take place was backroom bargaining, political maneuvering and stonewalling, all of which run counter to the higher — perhaps impossibly high — bar Obama has set for himself and his White House to do things differently. The White House’s reluctant acknowledgment of the chain of events shone a light on the unseemly, favor-trading side of politics — and at an inopportune time for Obama and Democrats as they seek to keep control of Congress.”

American Spectator or Politico? “The White House’s failure to designate a single spokesperson — with a corresponding schedule of media updates to show the administration in action — may have been intended to convey an all-hands-on-deck approach to the BP oil spill. Instead, it has created a public relations vacuum, being filled by critics of the president’s approach. And the one man who might have filled that role — Interior Secretary Ken Salazar — already has had a pair of high-profile stumbles, with not one, but two of his comments effectively retracted from the White House podium.”

Maureen Dowd or Michael Gerson? “Once more, he has willfully and inexplicably resisted fulfilling a signal part of his job: being a prism in moments of fear and pride, reflecting what Americans feel so they know he gets it. … Too often it feels as though Barry is watching from a balcony, reluctant to enter the fray until the clamor of the crowd forces him to come down. The pattern is perverse. The man whose presidency is rooted in his ability to inspire withholds that inspiration when it is most needed.”

A Hamas spokesman or a liberal Democrat candidate for the House? “For many Jews the birth of Israel is a celebration, but for the Palestinians it was the nakba, a catastrophe. There’s no safety or security in barring people from their homeland.”

The mayor of the city attacked on September 11 or a CAIR spokesman? On the proposed mosque to be built at Ground Zero: “I think it’s fair to say if somebody was going to try, on that piece of property, to build a church or a synagogue, nobody would be yelling and screaming. … And the fact of the matter is that Muslims have a right to do it, too.”

The Onion or the Associated Press? “The case against four men accused of plotting to bomb New York synagogues and shoot down military planes will not focus on whether they were members of a terrorist group, a federal prosecutor said yesterday. … The trial is ‘going to be about whether these guys were going to blow something up,’ Assistant US Attorney David Raskin.”

“Constitutional conservative” or Constitutional radical? “Rand Paul’s interview with the Russian government propaganda channel Russia Today is getting a lot of attention today for his assertion that he opposes the American tradition of granting citizenship to everyone born in the United States.” And what’s he doing talking to a Russian propaganda outfit?

Bill Clinton or spokesman for the National Right to Work Foundation? On labor unions attacking Blanche Lincoln: “National labor unions [have] decided to make Lincoln ‘the poster child for what happens when a Democrat crosses them. … In other words, this is about using you and manipulating your votes to terrify members of Congress and members of the Senate from other states.’”

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Christie Targets Public-Employee Unions

George Will, like a lot of us, is impressed with Chris Christie. He won the gubernatorial race in one of the Bluest states and is now governing like a tough fiscal conservative. Will explains:

He inherited a $2.2 billion deficit, and next year’s projected deficit of $10.7 billion is, relative to the state’s $29.3 billion budget, the nation’s worst. Democrats, with the verbal tic — “Tax the rich!” — that passes for progressive thinking, demanded that he reinstate the “millionaire’s tax,” which hit “millionaires” earning $400,000 until it expired Dec. 31. Instead, Christie noted that between 2004 and 2008 there was a net outflow of $70 billion in wealth as “the rich,” including small businesses, fled. And he said previous administrations had “raised taxes 115 times in the last eight years alone.”

So he closed the $2.2 billion gap by accepting 375 of 378 suggested spending freezes and cuts. In two weeks. By executive actions. In eight weeks he cut $13 billion — $232 million a day, $9 million an hour. Now comes the hard part.

But that’s not going to get New Jersey back to fiscal sanity. So Christie is going after public-employee unions’ gold-plated benefits:

Government employees’ health benefits are, he says, “41 percent more expensive” than those of the average Fortune 500 company. Without changes in current law, “spending will have increased 322 percent in 20 years — over 16 percent a year.” There is, he says, a connection between the state’s being No. 1 in total tax burden and being No. 1 in the proportion of college students who, after graduating, leave the state.

Partly to pay for teachers’ benefits — most contribute nothing to pay for their health insurance — property taxes have increased 70 percent in 10 years, to an average annual cost to homeowners of $7,281. Christie proposes a 2.5 percent cap on annual increases.

In the past, the “solution” to all this was to raise taxes, which created an exodus of the “rich” and small businesses to neighboring states. But Christie is taking a page from another northeastern Republican (and another former federal prosecutor) who when he came into office was told he had to raise taxes, but proceeded to show that budget discipline and tax cuts could revive the greatest of American cities. Rudy Giuliani became a conservative rock star and New York came roaring back. If Christie pulls this off, he will not only elevate himself to the top tier of Republican politicians; he will also point the way to taming state budgets (California, are you paying attention?). As Will notes:

In the state that has the nation’s fourth-highest percentage (66) of public employees who are unionized, he has joined the struggle that will dominate the nation’s domestic policymaking in this decade — to break the ruinous collaboration between elected officials and unionized state and local workers whose affections the officials purchase with taxpayers’ money.

No wonder labor leaders are going berserk. If Christie wins, Big Labor will get its comeuppance, New Jersey will prosper, and once again liberal governance will be replaced by something better — responsible fiscal conservatism.

George Will, like a lot of us, is impressed with Chris Christie. He won the gubernatorial race in one of the Bluest states and is now governing like a tough fiscal conservative. Will explains:

He inherited a $2.2 billion deficit, and next year’s projected deficit of $10.7 billion is, relative to the state’s $29.3 billion budget, the nation’s worst. Democrats, with the verbal tic — “Tax the rich!” — that passes for progressive thinking, demanded that he reinstate the “millionaire’s tax,” which hit “millionaires” earning $400,000 until it expired Dec. 31. Instead, Christie noted that between 2004 and 2008 there was a net outflow of $70 billion in wealth as “the rich,” including small businesses, fled. And he said previous administrations had “raised taxes 115 times in the last eight years alone.”

So he closed the $2.2 billion gap by accepting 375 of 378 suggested spending freezes and cuts. In two weeks. By executive actions. In eight weeks he cut $13 billion — $232 million a day, $9 million an hour. Now comes the hard part.

But that’s not going to get New Jersey back to fiscal sanity. So Christie is going after public-employee unions’ gold-plated benefits:

Government employees’ health benefits are, he says, “41 percent more expensive” than those of the average Fortune 500 company. Without changes in current law, “spending will have increased 322 percent in 20 years — over 16 percent a year.” There is, he says, a connection between the state’s being No. 1 in total tax burden and being No. 1 in the proportion of college students who, after graduating, leave the state.

Partly to pay for teachers’ benefits — most contribute nothing to pay for their health insurance — property taxes have increased 70 percent in 10 years, to an average annual cost to homeowners of $7,281. Christie proposes a 2.5 percent cap on annual increases.

In the past, the “solution” to all this was to raise taxes, which created an exodus of the “rich” and small businesses to neighboring states. But Christie is taking a page from another northeastern Republican (and another former federal prosecutor) who when he came into office was told he had to raise taxes, but proceeded to show that budget discipline and tax cuts could revive the greatest of American cities. Rudy Giuliani became a conservative rock star and New York came roaring back. If Christie pulls this off, he will not only elevate himself to the top tier of Republican politicians; he will also point the way to taming state budgets (California, are you paying attention?). As Will notes:

In the state that has the nation’s fourth-highest percentage (66) of public employees who are unionized, he has joined the struggle that will dominate the nation’s domestic policymaking in this decade — to break the ruinous collaboration between elected officials and unionized state and local workers whose affections the officials purchase with taxpayers’ money.

No wonder labor leaders are going berserk. If Christie wins, Big Labor will get its comeuppance, New Jersey will prosper, and once again liberal governance will be replaced by something better — responsible fiscal conservatism.

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Not Keeping America Safe

Liz Cheney and Debra Burlingame (board members of Keep America Safe), Eileen Trotta (the sister of Officer Louis Pepe, a former federal prison guard who was stabbed in the eye by an al-Qaeda terrorist 10 months before 9/11), and former federal prosecutor Andy McCarthy held a conference call to discuss the decision to move Guantanamo detainees to the Thomson Correctional Center in Illinois. Cheney was blunt, declaring that this was further evidence that the Obama administration was “dedicated to turning the clock back” to a failed pre-9/11 approach, which treated terrorism as a criminal-justice matter. Once here, she explained, the detainees will have “all the rights of U.S. citizens” and the opportunity to seek release onto U.S. soil. They will also have the freedom to plan and plot other terrorist activities, as well as to “radicalize the prison population.” She noted that the Obama team has “no stomach” for keeping in place restrictions on terrorists once they’re in U.S. facilities, pointing to the case of shoe bomber Richard Reid, who after a hunger strike and legal complaint got the restrictions on mail, media access, etc. lifted. (Burlingame later added that it was discovered that the 1993 World Trade Center bombers managed to send some 90 letters to terrorist networks, which used them as prime recruiting tools.)

I asked Cheney what the administration hoped to gain by this, since terrorists would still have to be indefinitely detained and we were simply going to have to re-create the Guantanamo facility on U.S. soil. She confessed that it was “impossible to get inside their heads,” but she emphasized that each and every action of the president should be assessed as to whether it would make Americans safer. She said there is simply “no way to argue” that this makes us safer. She deemed the argument that this will create jobs “disgraceful,” reminding those on the call that there was an overpopulation problem in U.S. prisons and that other prisoners could be moved and the Illinois facility enhanced if they wanted to boost local jobs. She reiterated that Guantanamo is both a “safe and just facility” and that there is “no legitimate justification” for moving them.

In response to a similar query from USA Today as to whether this was an administration effort to eliminate Guantanamo as a “recruiting tool,” Cheney said that the media should “challenge them to show evidence” that it was Guantanamo that was responsible for terror recruitment. Terrorists “are not attacking America because of the way they are detained” but, she explained, because of their hateful Islamic fundamentalist ideology. McCarthy added, “A pretext is not a cause.” It is Islamic ideology and signs of American weakness that, he noted, are what spur recruitment, according to terrorists (including the 1993 bombers) who have been debriefed.

I asked McCarthy what Congress could do. Congress has “remedies,” he noted, including the power to decline funding. Congress is also the “master of federal jurisdiction” and can use that power, for example in the KSM trial, to declare U.S. courts off-limits to enemy combatants. It is, he argues, incumbent on Congress to use “the power of the purse … but also to say in resolutions that this is not the way we want to go.”

This is a preview of the debate that will take place, both in Congress and in the 2010 elections. The question remains: do we want to move terrorists to U.S. soil and treat them as U.S. citizens, with all the attendant rights and security risks? The American people overwhelmingly have rejected this idea. But the Obami say they know better. We’ll see who wins the argument.

Liz Cheney and Debra Burlingame (board members of Keep America Safe), Eileen Trotta (the sister of Officer Louis Pepe, a former federal prison guard who was stabbed in the eye by an al-Qaeda terrorist 10 months before 9/11), and former federal prosecutor Andy McCarthy held a conference call to discuss the decision to move Guantanamo detainees to the Thomson Correctional Center in Illinois. Cheney was blunt, declaring that this was further evidence that the Obama administration was “dedicated to turning the clock back” to a failed pre-9/11 approach, which treated terrorism as a criminal-justice matter. Once here, she explained, the detainees will have “all the rights of U.S. citizens” and the opportunity to seek release onto U.S. soil. They will also have the freedom to plan and plot other terrorist activities, as well as to “radicalize the prison population.” She noted that the Obama team has “no stomach” for keeping in place restrictions on terrorists once they’re in U.S. facilities, pointing to the case of shoe bomber Richard Reid, who after a hunger strike and legal complaint got the restrictions on mail, media access, etc. lifted. (Burlingame later added that it was discovered that the 1993 World Trade Center bombers managed to send some 90 letters to terrorist networks, which used them as prime recruiting tools.)

I asked Cheney what the administration hoped to gain by this, since terrorists would still have to be indefinitely detained and we were simply going to have to re-create the Guantanamo facility on U.S. soil. She confessed that it was “impossible to get inside their heads,” but she emphasized that each and every action of the president should be assessed as to whether it would make Americans safer. She said there is simply “no way to argue” that this makes us safer. She deemed the argument that this will create jobs “disgraceful,” reminding those on the call that there was an overpopulation problem in U.S. prisons and that other prisoners could be moved and the Illinois facility enhanced if they wanted to boost local jobs. She reiterated that Guantanamo is both a “safe and just facility” and that there is “no legitimate justification” for moving them.

In response to a similar query from USA Today as to whether this was an administration effort to eliminate Guantanamo as a “recruiting tool,” Cheney said that the media should “challenge them to show evidence” that it was Guantanamo that was responsible for terror recruitment. Terrorists “are not attacking America because of the way they are detained” but, she explained, because of their hateful Islamic fundamentalist ideology. McCarthy added, “A pretext is not a cause.” It is Islamic ideology and signs of American weakness that, he noted, are what spur recruitment, according to terrorists (including the 1993 bombers) who have been debriefed.

I asked McCarthy what Congress could do. Congress has “remedies,” he noted, including the power to decline funding. Congress is also the “master of federal jurisdiction” and can use that power, for example in the KSM trial, to declare U.S. courts off-limits to enemy combatants. It is, he argues, incumbent on Congress to use “the power of the purse … but also to say in resolutions that this is not the way we want to go.”

This is a preview of the debate that will take place, both in Congress and in the 2010 elections. The question remains: do we want to move terrorists to U.S. soil and treat them as U.S. citizens, with all the attendant rights and security risks? The American people overwhelmingly have rejected this idea. But the Obami say they know better. We’ll see who wins the argument.

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Loose Lips Sink Newspapers

Finally, action. A federal prosecutor has issued a subpoena to James Risen of the New York Times, one of two reporters at the paper who compromised the National Security Agency’s (NSA) Terrorist Surveillance Program in December 2005.

Risen himself does not appear to be under investigation. Indeed, prosecutors do not appear to be investigating the NSA leak at this moment. Rather, they are seeking the confidential sources that led to the disclosure of an entirely different secret, one that did not appear in Risen’s newspaper, but only in a chapter of Risen’s book, State of War. It reported that the CIA had attempted to infiltrate Iran’s nuclear program and described a number of other highly classified details about covert efforts in that area.

Why is this investigation proceeding now? Connecting the Dots has no inside information. But Connecting the Dots was seated at the same table as Michael Mukasey and his wife at two dinners in the last three years, back when the future Attorney General was still a mere federal judge. The leaks in the New York Times did not come up for discussion, but Mukasey made plain he was a close reader of COMMENTARY.

Did he read a certain article in COMMENTARY entitled Has the New York Times Violated the Espionage Act? That’s a question James Risen — and Bill Keller, too — should be thinking about.

Finally, action. A federal prosecutor has issued a subpoena to James Risen of the New York Times, one of two reporters at the paper who compromised the National Security Agency’s (NSA) Terrorist Surveillance Program in December 2005.

Risen himself does not appear to be under investigation. Indeed, prosecutors do not appear to be investigating the NSA leak at this moment. Rather, they are seeking the confidential sources that led to the disclosure of an entirely different secret, one that did not appear in Risen’s newspaper, but only in a chapter of Risen’s book, State of War. It reported that the CIA had attempted to infiltrate Iran’s nuclear program and described a number of other highly classified details about covert efforts in that area.

Why is this investigation proceeding now? Connecting the Dots has no inside information. But Connecting the Dots was seated at the same table as Michael Mukasey and his wife at two dinners in the last three years, back when the future Attorney General was still a mere federal judge. The leaks in the New York Times did not come up for discussion, but Mukasey made plain he was a close reader of COMMENTARY.

Did he read a certain article in COMMENTARY entitled Has the New York Times Violated the Espionage Act? That’s a question James Risen — and Bill Keller, too — should be thinking about.

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Is Michael Mukasey Really Spider-Man?

What is the difference between the Daily Bugle and the New York Times? In the Daily Bugle, the fictional newspaper in the Spider-Man franchise, the superhero is smeared as a danger to the public weal with headlines like “Spider-Man: Threat or Menace?”

The headline in Monday’s New York Times, “Post-9/11 Cases Fuel Criticism for Nominee,” was more subtle than that. But the contents that followed were not. As former federal prosecutor Andrew McCarthy demonstrates today in an exceptionally well-informed analysis, the Times was performing nothing less than a hatchet job on Michael B. Mukasey, President Bush’s choice for the position of Attorney General.

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What is the difference between the Daily Bugle and the New York Times? In the Daily Bugle, the fictional newspaper in the Spider-Man franchise, the superhero is smeared as a danger to the public weal with headlines like “Spider-Man: Threat or Menace?”

The headline in Monday’s New York Times, “Post-9/11 Cases Fuel Criticism for Nominee,” was more subtle than that. But the contents that followed were not. As former federal prosecutor Andrew McCarthy demonstrates today in an exceptionally well-informed analysis, the Times was performing nothing less than a hatchet job on Michael B. Mukasey, President Bush’s choice for the position of Attorney General.

Next to the MoveOn.org advertising flap, which has revealed how the paper’s managerial incompetence can mix with its biases, the Mukasey story exposes the partisanship of the paper’s supposedly non-partisan news section in a way that few stories ever quite so nakedly do. It will be interesting to see if Clark Hoyt, the Times’s Public Editor, takes up this scandal, as he has here with the MoveOn.org ad, in a forthcoming column.

Whether we hear from Hoyt or not, the lengthening of the line of soiled laundry on display at our country’s premier newspaper is spectacularly ill-timedat least from the point of view of the self-preening journalism lobby itself. On Thursday, the Senate Judiciary Committee is set to take up a “shield law” that would carve out special privileges for journalists, exempting them from having to testify in legal proceedings about their confidential sources.

Although the Times’s Mukasey story does not bear in any direct way on the issues addressed in the bill, it demonstrates, as clearly as DanRathergate did, something else. Rank partisanship has infected American journalism to the point that a shield lawa bad idea under any circumstances, as I have argued herewould at this juncture be a formula for the kind of disaster that only a Spider-Man could save us from.

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Was Scooter’s Sentence Too Light?

Judge Reggie Walton has sentenced Scooter Libby to 2 1/2 years in prison. In calculating this term, Walton relied on federal guidelines, which give him latitude. He also weighed letters, pro and con, written to the court by dozens of people. Many of them are friends of Libby, some of them are individuals who had encountered Libby in the course of their lives, and others are ordinary citizens. Almost all of the letters call for Walton to show leniency. A handful, going in the other direction, call for throwing the book at Libby. Those are the ones the judge chose to follow.

The letters in favor of leniency stress Libby’s long and distinguished career in public service, his dedication and goodwill toward subordinates and colleagues, his love of children. Some of these letters are self-aggrandizing. But most of them are poignant portraits of sides of Libby that the public has never seen. That is especially true of those written by low-level employees, like the chief steward on Air Force Two and a White House photographer, both of whom emphasize the simple human kindness that the Vice President’s chief of staff showed to them.

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Judge Reggie Walton has sentenced Scooter Libby to 2 1/2 years in prison. In calculating this term, Walton relied on federal guidelines, which give him latitude. He also weighed letters, pro and con, written to the court by dozens of people. Many of them are friends of Libby, some of them are individuals who had encountered Libby in the course of their lives, and others are ordinary citizens. Almost all of the letters call for Walton to show leniency. A handful, going in the other direction, call for throwing the book at Libby. Those are the ones the judge chose to follow.

The letters in favor of leniency stress Libby’s long and distinguished career in public service, his dedication and goodwill toward subordinates and colleagues, his love of children. Some of these letters are self-aggrandizing. But most of them are poignant portraits of sides of Libby that the public has never seen. That is especially true of those written by low-level employees, like the chief steward on Air Force Two and a White House photographer, both of whom emphasize the simple human kindness that the Vice President’s chief of staff showed to them.

The letters calling for a harsh prison sentence are something else again. One such correspondent writes: “I would prefer to see Mr. Rove or Vice President Cheney behind bars so, in a sense, Mr. Libby is their proxy. He was the puppet but they pulled the strings.” The writer signs his missive, “an angry citizen,” but declines to provide his name, saying of the Bush administration, “I don’t use my name because I don’t trust them, either.”

Another such letter, handwritten and signed with a scrawl, reads: “I strongly implore you to putScooter’ in jail”—underlining those three italicized words. Yet another correspondent writes that Libby “has committed some of the most serious offense against our country in its entire 231 year history. . . . I believe he is also guilty of, although he hasn’t been tried for, helping the enemies of the United States, Osama bin Laden and al Qaeda Afghanistan/Pakistan escape justice through his lies.” A former federal prosecutor goes even further: “In its ultimate effects on the security of the United States, is what was done here [by Libby] really that different from what was done by [convicted spies] Aldrich Ames, Jonathan Pollard, and Robert Hanssen?”

Although nicely printed, and not drawn in a scrawl, a New York Times editorial today joins with the ranters, calling Libby’s sentence “an appropriate—indeed necessary—punishment for his repeated lies to a grand jury and to FBI agents investigating a possible smear campaign orchestrated by the White House.” Considering that the Times itself has trampled on U.S. laws governing secrecy—something that Libby has never been accused of by a court of law—the newspaper’s participation in this chorus of half-witted haters, though not unexpected, is all the more revolting.

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Off With Libby’s Head?

When he is sentenced this coming Tuesday, Scooter Libby may be sent directly to jail. If so, this would be grossly unfair since he stands an excellent chance of having the verdict against him overturned on appeal. But it would also be the moment for President Bush to pardon him immediately.

Back in March, when he was convicted of perjury and obstruction of justice by a jury in federal court in Washington D.C., I explained why I thought the case “represents a terrible injustice.” The federal prosecutor, Patrick Fitzgerald, had insisted to both the public and the jury that the disclosure of the identity of the CIA operative Valerie Plame—which was the underlying action he had been appointed to investigate—was in fact a crime. But this was a point that had never been established or even formally alleged. Fitzgerald’s overreaching on this colored the jury’s thinking about the gravity of the issues at stake, suggested a motive for Libby to lie that did not reside in proved facts, and conflicted with the judge’s ruling that the case would not hinge on Plame’s status.

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When he is sentenced this coming Tuesday, Scooter Libby may be sent directly to jail. If so, this would be grossly unfair since he stands an excellent chance of having the verdict against him overturned on appeal. But it would also be the moment for President Bush to pardon him immediately.

Back in March, when he was convicted of perjury and obstruction of justice by a jury in federal court in Washington D.C., I explained why I thought the case “represents a terrible injustice.” The federal prosecutor, Patrick Fitzgerald, had insisted to both the public and the jury that the disclosure of the identity of the CIA operative Valerie Plame—which was the underlying action he had been appointed to investigate—was in fact a crime. But this was a point that had never been established or even formally alleged. Fitzgerald’s overreaching on this colored the jury’s thinking about the gravity of the issues at stake, suggested a motive for Libby to lie that did not reside in proved facts, and conflicted with the judge’s ruling that the case would not hinge on Plame’s status.

Now Fitzgerald has been back in court, arguing that when Libby is sentenced on Tuesday, the judge should throw the book at him precisely on the grounds that he committed the underlying crime-that-was-not-a-crime. Fitzgerald approvingly cites Judge David S. Tatel’s ruling in the Judith Miller case that “because the charges contemplated here relate to false denials of responsibility for Plame’s exposure, prosecuting perjury or false statements would be tantamount to punishing the leak.”

But this a vicious circle. Convicted on the basis of something that was never proved or even formally alleged, is Libby now to be punished on the same basis? With Fitzgerald continuing to overreach, the case for a presidential pardon is growing stronger by the day. If Libby is imprisoned, will Bush do the right thing?

Meanwhile, in closely related news, Senator Kit Bond of Missouri, the vice chairman of the Senate Intelligence Committee, wants Valerie Plame to be re-interviewed. Back in March, in a dispatch entitled Lying Liars and Their Lies, I asked whether Plame was under oath when she testified before the House Oversight and Government Reform Committee and declared that she played no role in sending her husband, Ambassador Joseph Wilson, on a fact-finding trip to Niger. “I did not recommend him. I did not suggest him. There was no nepotism involved. I did not have the authority,” she said.

Plame was under oath, and Senator Bond has pointed out that she has put out three separate versions of the circumstances under which her husband was sent to Niger. According to USA Today‘s summary, they are:

*She told the CIA’s inspector general in 2003 or 2004 that she had suggested Wilson.

*Plame told Senate Intelligence Committee staffers in 2004 that she couldn’t remember whether she had suggested Wilson.

*She told the House Oversight and Government Reform Committee in March that an unidentified person in Vice President Cheney’s office asked a CIA colleague about the African uranium report in February 2002. A third officer, overhearing Plame and the colleague discussing this, suggested, “Well, why don’t we send Joe?” Plame told the committee.

Which of these is the real story? Is Plame telling three versions of the truth, or is she a lying liar, or even worse, a perjuring perjurer? Bond would like to find out.

But the Intelligence Committee is now under the control of the Democrats who have no interest in calling attention to the antics of the Plame-Wilson provocateurs. Stay tuned, in other words, for the cover-up of the cover-up.  

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