The perjury trial of Vice President Dick Cheney’s former chief of staff Lewis “Scooter” Libby is not exactly Jarndyce and Jarndyce, the case in the Charles Dickens novel Bleak House, which ruined everyone who came near it and dragged on for so long that people forgot what it originally had been about.
But it could ruin Libby’s life and Patrick Fitzgerald’s reputation, and it already feels like a kind of relic. The rationale for Libby’s trial steadily has evaporated since his indictment more than a year ago, but it still goes on.
Fitzgerald has proved himself the most clichéd of Washington types — the out-of-control special prosecutor. Such is human nature that almost no one has the strength to resist losing all sense of proportion once he has been loosed on the world as a special prosecutor, free to pursue any supposed violation of the law — no matter how peripheral — to the ends of the earth. Two events have highlighted the injustice of Fitzgerald’s prosecution.
The first event blew out of the water the theory that initially drove the case. That theory held that war-mongering, Bush-administration neocons were so furious that Joseph Wilson had written a July 2003 New York Times op-ed retrospectively criticizing their case for war that they embarked on a campaign of vengeance. Out of spite, they exposed that Wilson’s wife, Valerie Plame, worked at the CIA, violating the Intelligence Identities Protection Act in the process. Hence, Fitzgerald’s appointment.
Unfortunately for this theory, the original leaker of Plame’s identity was former Secretary of State Colin Powell’s aide Richard Armitage. He was an internal enemy of the neocons, and he told columnist Bob Novak about Plame for innocent reasons. After Wilson’s op-ed, everyone wondered why he, of all people, had been sent on a prewar mission to Niger in 2002 to investigate claims that Saddam had recently sought to purchase uranium there. The answer: Wilson’s wife worked at the CIA and recommended him for the mission.
This information spread quickly throughout Washington — with officials and reporters trading it among themselves — before Novak put it in print. None of this violated the law. Plame wasn’t covered under the narrowly crafted Intelligence Identities Protection Act. All that had been taking place was politics, as the administration and its critics jousted over the war via the Plame flap.
A wiser man than Fitzgerald — who knew from the beginning that there was no underlying crime and that Armitage had been the first leaker — would have folded up his tent and decamped back to Chicago where his day job is fighting real crime as a U.S. attorney. Alas, he didn’t, and his case has been made to look even more foolish by a second event.
That is former Clinton national-security adviser Sandy Berger’s theft and destruction of classified documents from the National Archives related to the Clinton administration’s anti-terror efforts. Berger initially lied about it, and thus behaved with more blatant dishonesty and more disregard for classified material than Libby. Yet Libby faces jail time, and Berger got off with a wrist-slap. Whom the gods would destroy, they first make the subject of a special-counsel investigation.
Libby says that he misremembered how he had learned that Plame worked at the CIA. He said under oath — erroneously — that he had heard it from NBC’s Tim Russert. But the case has been a festival of poor memories and conflicting accounts from nearly everyone involved, which is inevitable when dealing with minutiae that happened long ago. Bob Woodward has even said that it is conceivable that he told Libby about Plame. As legal analyst David Rivkin put it, that means Libby might have “confused a prominent middle-age television journalist for a prominent middle-age newspaperman.”
Libby’s fate is now a crapshoot. If he has a fair-minded jury, he probably will get acquitted. But if not (and he is being tried in heavily Democratic Washington, D.C.), he won’t. Patrick Fitzgerald surely would consider that vindication, but it would only add to his shame.