Commentary Magazine


Will the Scooter Libby Rules Apply to the Obama Administration?

The arrogance of power is such that it may never have occurred to the senior government figures who recently leaked classified information about drone strikes and cyber warfare to the press that there would be any consequences for their actions. The all-too cozy relationship between the Obama administration and mainstream outlets like the New York Times instilled in them the notion that they could plant with impunity any story in the media to boost the president’s reputation. But the anger generated among the public and on both sides of the aisle in Congress by the constant stream of confidential information from the White House and the Pentagon to the front page of the Times has set in motion a series of events that may have consequences that will be felt long after the stories have run. Indeed, even if the president is re-elected, it may be that the effort to puff up his shaky reputation could sink a second term in scandal and prosecutions.

Of course, just how difficult things will get for some of the chatty members of the administration depends a great deal on the special prosecutors picked by Attorney General Eric Holder to investigate the leaks after a storm of criticism on the issue forced his hand. As the Times points out today in a story buried on page 20 of their Sunday edition (in contrast to the front page placement of the pieces generated by the leaks in question), prosecuting someone for disclosing classified information can be tricky. But if the two U.S. Attorneys chosen to work on this case are determined to nail someone for this crime, then the odds are some senior administration figures will be going down, even if they are not the ones doing the leaking. The question is whether the Scooter Libby rules will apply.

It should be recalled that a few years ago Democrats and liberals were crying bloody murder about the leak of Valerie Plame’s status as a CIA operative by those in the Bush administration who were angry about the lies told by her husband, a former ambassador. The appearance of Plame’s name in a column written by the late Robert Novak set off a federal investigation led by Patrick J. Fitzgerald, who was given the full powers of the attorney general, allowing him not only to subpoena and then jail reporters who refused to divulge their sources but to ultimately decide to charge someone who actually did not commit the crime that launched the probe. Richard Armitage of the State Department was the one who dropped Plame’s name to Novak. But rather than fight an uphill battle to jail Armitage, Fitzgerald chose to crucify I. Lewis “Scooter” Libby Jr., Vice President Dick Cheney’s chief of staff, because his account of a conversation with Tim Russert differed from the recollection of the then host of “Meet the Press.”

The Libby prosecution was a political witch-hunt that did nothing to enhance security or prevent leaks, but it did provide liberals with a great deal of schadenfreude while allowing left-wing Bush administration critics to pose as defenders of national security.

That’s why the possibility that the Libby rules will be applied to some current denizens of the White House may well have some on the right salivating at the prospect of revenge. But conservatives who were rightly opposed to what happened to Scooter Libby should not be hoping for a repeat of the same unfair treatment he suffered.

Instead, what is needed now is what did not happen with the Plame investigation: a probe that will quickly ferret out the truth about the leaks and expose it to the light of day. It should be pointed out that while the motive for both the Plame story and the Obama defense leaks was politics, the two are really not comparable in terms of seriousness.

It was illegal to name a CIA officer in the manner that Plame’s identity was outed. but she was working at a desk in Langley, Virginia, not working undercover in enemy territory. By contrast, the leaks about drone attacks and especially cyber warfare research and decision-making go to the heart of America’s national security. Fitzgerald knew he could never send Armitage to jail for mentioning Plame, but that might be more of a possibility with the Obama administration leakers.

Yet the main outcome here to be desired is not so much the jailing of Obama’s deputies or the prosecution of journalists but the exposure of what they did. The real scandal here isn’t the possible violation of the 1917 Espionage Act, a law rarely enforced. It is that the president’s aides thought nothing of uncovering America’s secrets in order to let their friends in the press portray the president as a tough guy.

The administration will do everything in its power to ensure the truth doesn’t come out before November. But if Holder has appointed unscrupulous prosecutors in the Fitzgerald mold and they wind up spending the next four years fending off arbitrary prosecutions that will drag the administration’s name in the mud, they may wind up wishing the truth had come out in a timely manner.

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