So it seems clear to me that an indictment under either of these statutes would be a gross injustice. It is a general principle of law that when the government wants to criminalize acts other than traditional common law crimes like murder or theft, it must set out with great specificity the conduct that is forbidden. To visit the rigors of criminal indictment, trial and punishment on someone who has done nothing that is specifically forbidden is unjust -- the very definition of injustice.
That leaves the question of whether Rove, Libby or someone else will be indicted for perjury, obstruction of justice or making false statements in the course of the investigation. But why should there be indictments if there was no crime?
True, Rove and Libby did seek to discredit Joseph Wilson -- as they should well have done. As the Senate Intelligence Committee concluded in a bipartisan report in July 2004, just about everything Wilson said publicly about his trip to Niger was untrue. He said that he had discredited reports that Iraq sought to buy uranium in Niger. But the CIA people to whom he reported concluded that, if anything, he substantiated such reports. He said that he pointed out that certain other intelligence reports were forged. But the forgeries did not appear until eight months after his trip. He said his wife had nothing to do with his trip to Niger. But it was she who recommended him for the trip. And on and on.
In the absence of a violation of the underlying espionage acts, any indictment here arising from the course of the investigation would be, in my view, unjust and an abuse of prosecutorial discretion. It would also be, as the liberal commentator Jacob Weisberg has pointed out, a long step toward something like the British Official Secrets Act -- a precedent that would staunch the flow of information from the government to the press and the people.
The press has been shrieking for Rove's and Libby's scalp. If they're indicted, the administration will be hurt in the short run, but in the long run it will be the press and the people who will suffer.
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