Of all of the things being said in defense of Scooter Libby, the idea that he should go free because "there was no underlying crime" is the most absurd. Leaving aside for a moment that the entire concept behind "obstruction of justice" is that is is possible to behave in such a way that the evidence necessary to prosecute an "underlying crime" cannot be gathered... and leaving aside for the moment the precedent set by the investigations that led to Clinton's impeachment... Hilzoy draws a useful analogy to keep in mind here:
David Broder makes a big deal out of the fact that there was no "underlying crime". For one thing, I don't think that that's a reasonable inference from the fact that Fitzgerald chose not to prosecute anyone for the leak. But it's also beside the point. Suppose that a police officer tries to pull me over when I'm driving, and instead of stopping I step on the gas and try to flee at high speed; and that I then proceed to barrel through red lights at 80 mph, nearly causing accidents and running over small children, before I finally crash into a telephone pole and am apprehended. Suppose further that the police officer was wrong about whatever led him to pull me over, and that the reason I fled was not that I was guilty of something, but that I was driving in my pajamas and didn't want anyone to see me. Does the fact that there was "no underlying crime" mean that I should not be charged with reckless driving and whatever other crimes I committed while fleeing? I don't think so. But that's exactly the kind of argument that Broder is making here.
When it comes to Fitzgerald's investigation, I don't think Hilzoy goes far enough. Here, as a reminder, is what Fitz said during his press conference back in October 2005:
Let me then ask your next question: Well, why is this a leak investigation that doesn't result in a charge? I've been trying to think about how to explain this, so let me try. I know baseball analogies are the fad these days. Let me try something.If you saw a baseball game and you saw a pitcher wind up and throw a fastball and hit a batter right smack in the head, and it really, really hurt them, you'd want to know why the pitcher did that. And you'd wonder whether or not the person just reared back and decided, "I've got bad blood with this batter. He hit two home runs off me. I'm just going to hit him in the head as hard as I can."
You also might wonder whether or not the pitcher just let go of the ball or his foot slipped, and he had no idea to throw the ball anywhere near the batter's head. And there's lots of shades of gray in between.
You might learn that you wanted to hit the batter in the back and it hit him in the head because he moved. You might want to throw it under his chin, but it ended up hitting him on the head.
And what you'd want to do is have as much information as you could. You'd want to know: What happened in the dugout? Was this guy complaining about the person he threw at? Did he talk to anyone else? What was he thinking? How does he react? All those things you'd want to know.
And then you'd make a decision as to whether this person should be banned from baseball, whether they should be suspended, whether you should do nothing at all and just say, "Hey, the person threw a bad pitch. Get over it."
In this case, it's a lot more serious than baseball. And the damage wasn't to one person. It wasn't just Valerie Wilson. It was done to all of us.
And as you sit back, you want to learn: Why was this information going out? Why were people taking this information about Valerie Wilson and giving it to reporters? Why did Mr. Libby say what he did? Why did he tell Judith Miller three times? Why did he tell the press secretary on Monday? Why did he tell Mr. Cooper? And was this something where he intended to cause whatever damage was caused?
Or did they intend to do something else and where are the shades of gray?
And what we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He's trying to figure what happened and somebody blocked their view.
As you sit here now, if you're asking me what his motives were, I can't tell you; we haven't charged it.
So what you were saying is the harm in an obstruction investigation is it prevents us from making the fine judgments we want to make.
I also want to take away from the notion that somehow we should take an obstruction charge less seriously than a leak charge.
This is a very serious matter and compromising national security information is a very serious matter. But the need to get to the bottom of what happened and whether national security was compromised by inadvertence, by recklessness, by maliciousness is extremely important. We need to know the truth. And anyone who would go into a grand jury and lie, obstruct and impede the investigation has committed a serious crime.
After a long trial, Scooter Libby was convicted by a jury of his peers. A jury, mind you, that was made up of a group of people who felt sorry for the man but nevertheless felt that the law obligated them to hold him to account. Even NRO's Andy McCarthy acknowledges that, for god's sake. And yet, as both Glenn Greenwald and Digby have both ably demonstrated, virtually the entire DC press corps has decided that Libby spending even a day in jail represents a travesty of justice.
All of which reminds me of something I was thinking back in the days after former President Ford's funeral. I chose not to say it at the time, but only because I couldn't find a way to articulate it that didn't make me sound like an old curmudgeon. But Libby's potential pardon gives me another opportunity, so here goes:
Looking back on Ford's pardon of Nixon, it was often said that in the long run Ford's actions helped bring an end to the trauma that was Watergate. Through his "brave" action a "long national nightmare" was ended, and, eventually at least, unity was returned to a fractured land. The story sounds great, so its not terribly surprising it how often it has been repeated. The problem, however, is that it is entirely false.
I don't remember much about the Ford years - I was no older than 5 at the time - but given my family's close personal connection to the man (more on that some other time), its always been a era of immense interest for me. Since I returned to grad school a few years back, I've done a considerable amount of reading about the era, and I can tell you that not once - not once - have I found evidence to support this thesis.
Yes, Watergate did immense damage to the country, but it wasn't "tearing it apart." What it did "tear apart," however, was the community inhabited by those who both make up and report on our political system. And given that most, or perhaps even all, of them like to believe that their world is in fact the center of the world, it wasn't much of a leap for them to project their own troubles onto the nation at large.
Watergate shook the nation's trust in its political system. The pardon of Nixon didn't help restore that trust; it did precisely the reverse. Libby's potential pardon may not rise nearly to that level of importance, but the issues involved are precisely the same.
We are a nation of laws, not of men, and no man is above the law. Scooter was tried. he was convicted. He served this nation's executive branch. Now let him serve its judicial one.
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