Commentary Magazine


The Libby Verdict, Take Two

Under what circumstances is it right to lie to federal investigators or to a grand jury? There is only one answer: none. If that is what Scooter Libby did–and it is what a jury of eleven concluded he did by convicting him of four of five counts–then he is guilty as charged. But Libby is still maintaining his innocence. The legal burden now falls on him, not on the government, to show why his conviction should be overturned.

Nevertheless, this case represents a terrible injustice, which was the point of my posting here yesterday that has stirred so much controversy in the comments section. Comparison with the investigation of Bill Clinton, and the perjury charges that were leveled by the House of Representatives when it voted to impeach him, is instructive.

To begin with, both cases featured the familiar phenomenon of runaway special counsels. Although the independent-counsel statute under which Clinton was endlessly investigated and ended in his impeachment has expired, it was a recipe for mischief. By vesting executive authority in a prosecutor not subject to the control of the executive branch, Congress had created a constitutional anomaly, one with unintended and destructive effects that plagued Democratic and Republican administrations alike. True, Fitzgerald’s appointment was the result of Attorney General John Ashcroft’s self-recusal, and he was endowed with a different set of powers from those granted to Kenneth Starr, but he operated every bit like a one-case prosecutor, effectively unchecked by line-authority in the executive branch.

As it happens, there is no evidence that Kenneth Starr, appointed under the independent-counsel law, behaved improperly in his investigation of Clinton–although, as Richard Posner argued in An Affair of State, he did throw details into his report that gratuitously damaged the President and the presidency. By contrast, there is considerable evidence that Fitzgerald stepped out of bounds, primarily by insisting both to the public and to the jury that the disclosure of Valerie Plame’s identity–the underlying action that he was appointed to investigate–was in fact a crime. This is a point that has never been established, but Fitzgerald’s overreaching on it colored the jury’s thinking about the gravity of the issues at stake, suggested a motive for lying that did not reside in proven facts, and conflicted with the judge’s ruling that the case would not hinge on Plame’s status. All this will undoubtedly form the essence of any appeal.

In retrospect, it is clear that the Clinton case, despite the President’s obviously perjured statements, should not have been permitted to move forward. Indeed, as Posner has also argued, the Supreme Court erred grievously when it ruled in 1997, unanimously, to allow a sitting President to be caught up in civil litigation involving sex.

There is another more ominous point of comparison as well. Though the unfolding Monica story made 1998 a year of endless entertainment, that was also the crucial year in which American embassies in Kenya and Tanzania were blown up by al Qaeda, and the year in which Clinton’s ineffectual response–bombing a pharmaceutical factory in Sudan and unleashing a fusillade of cruise missiles on an al-Qaeda camp in Afghanistan–led to authority-sapping charges that he was reenacting a scenario from the 1997 film Wag the Dog.

We obviously cannot know whether the feckless Clinton would have acted more vigorously abroad had he not gone to sleep every night that year thinking about how to escape from the legal consequences of his own tawdry conduct and lies, and been thinking instead about how to protect the country from its enemies. But all of us have paid a price for having a President distracted from his duties by an unbounded investigation of his private life in a year that his Secretary of State came to call “all Monica, all the time,” but should have been all counterterrorism, all the time. The bill for Clinton’s fun and frolic, and for our own, was only to come due on September 11, 2001.

Now, unlike in the 1990’s, we are at war. We do not yet know what the price tag will be for the Libby distraction, just as we do not know if his conviction will be tossed out on appeal or result in a presidential pardon. But in its broadest ramifications, the case, which arose out of an internecine dispute about the quality of foreign intelligence, augurs ill for any President’s ability to gather and evaluate the intelligence provided by subordinate agencies like the CIA, to formulate foreign policy, to defend what it has formulated from bureaucratic warfare waged by such subordinate agencies, and to keep our country secure.

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