Where's the Outrage?

Republicans who minimize the CIA leak case resemble Democrats who trivialized the Monica Lewinsky case.

Back in 1998, when I was excoriating President Clinton for perjury and obstruction of justice, I had plenty of Republican company. This, my Republican friends and I agreed, was serious business.

But some Clinton-bashing conservatives have reacted rather differently to the alleged grand jury perjuries, lies to the FBI, and obstruction of justice for which I. Lewis (Scooter) Libby, Vice President Cheney's former chief of staff, stands indicted.

These conservatives go beyond claiming that the evidence that Libby lied is weak—which is fair game, albeit unpersuasive (in my view)—to trivializing any cover-up as not very serious anyway. They remind me of the many Democrats who trivialized Clinton's multiple perjuries and suborning of perjury as mere "lying about sex."

These days, the leader of the who-cares-about-perjury pack is The Wall Street Journal's editorial page—the "Daily Diatribe of the American Right," as it was called in the headline of a 1989 American Lawyer piece (by me).

In 1998, The Journal saw criminal cover-ups—even of matters that were not themselves crimes—as a big deal. "The latest Clinton scandal involving Monica Lewinsky is titillating because of sex," The Journal editorialized then, "but it derives its legal and political importance from the issues of perjury and obstruction of justice."

Back then, other respected conservatives—Mary Matalin and William Kristol, for example—were even more emphatic about what Matalin called Clinton's "perjury, suborning perjury, obstruction of justice, conspiracy." They have a far more dismissive view of the evidence of high-level lies underpinning the indictment of Libby and the near-indictment of Karl Rove.

"I now think the whole prosecution is absurd," Kristol said on Fox News on April 9. Dismissing the perjury charge against Libby as "technical" and "dubious," Kristol accused Special Prosecutor Patrick Fitzgerald of "a politically motivated attempt to wound the Bush administration."

Matalin, who worked in Cheney's office with Libby, has understandably vouched for his character. But she has also said this: "I think there's something about these prosecutions where it's become standard operating procedure that somebody just gets tagged with something ... to justify the existence of [the investigation]."

The Journal stands out from other apologists. Its June 14 editorial—a tour de force of distortion not unlike many a liberal New York Times editorial—is worth detailed dissection. While celebrating Rove's nonindictment, the editorial asserts that the evidence against Libby "comes down to nothing more than the fact that Mr. Libby's memory of conversations with three reporters differs from that of the reporters themselves."

False. In fact, Libby's sworn grand jury testimony and earlier statements to the FBI are contradicted not only by the three reporters but also by the testimony of at least two White House officials (evidently including Cheney), two CIA officials, and an undersecretary of State—not to mention the introduction of Libby's own handwritten notes and other documents.

Some background: Fitzgerald's well-documented theory is that in June and July of 2003, as part of a campaign to discredit Bush critic Joseph Wilson, Libby, Rove, and perhaps other officials leaked the identity of Wilson's CIA-official wife, Valerie Plame, to several reporters.

Wilson had made the highly publicized claim (misleading, we now know) that his oral report to the CIA on a CIA-sponsored trip to Niger in March 2002 gave the lie to Bush's assertion that Iraq had sought "uranium in Africa." When Cheney, Libby, and other White House officials learned that Wilson's wife worked for the CIA and had helped Wilson get the Niger assignment, they seized the opportunity to deprecate him as a lightweight on a boondoggle arranged by his wife.

All fair game—except that (as Fitzgerald alleges) Plame's identity as a CIA official happened to be classified. For this reason, the leaking of her role to the media infuriated the CIA, which demanded a criminal investigation and thereby ignited a major scandal. Libby and Rove tried to contain it by telling White House spokesman Scott McClellan (who told the world) that they had had no involvement in the Plame leak.

Lying to McClellan and the public is not a crime. But Libby is charged with the felonies of lying to the FBI on October 14 and November 26, 2003, and to the grand jury on March 5 and 24, 2004, to cover up the White House's role in the leak.

Specifically, Libby testified falsely that it was Tim Russert of NBC News who had first told him, on July 10, 2003, that Wilson's wife worked at the CIA, and that it was this gossip that he (Libby) had discussed with Time reporter Matthew Cooper on July 12, 2003.

That testimony is, as noted above, contradicted not only by Russert (who denies mentioning Plame to Libby), Cooper, and then-New York Times reporter Judith Miller but also by at least five administration officials. Four of them discussed Plame's CIA role with Libby about a month before Libby supposedly heard of it from Russert.

Libby also knew, Fitzgerald has alleged, that Plame's CIA role was a classified national security secret before he discussed her with Cooper (on July 12, 2003) and Miller (on June 23 and July 8 and 12, 2003). Libby's main defense is that his testimony innocently mixed up who had told him what when during an extremely busy time—including his imaginary discussion of Plame with Russert.

Fitzgerald seriously considered charging Rove, also, with lying. Rove initially told the FBI and the grand jury that he had not disclosed Wilson's wife's identity to any reporter. This was later belied by the discovery of an e-mail in which Rove told another White House official that he had discussed Plame with Cooper. But earlier this month—after Rove had testified four more times to portray his initial story as an innocent memory lapse—Fitzgerald decided not to prosecute him. The evident reason was the difficulty of disproving Rove's defense beyond a reasonable doubt.

Now compare the facts to The Journal's spin:

Spin: "The Rove decision also finally discredits the accusation that there was some grand White House conspiracy to smear Mr. Wilson. Mr. Fitzgerald has brought no charges concerning the original leak, which means that there was no underlying crime."

Fact: It's fair to say that discrediting the slippery Wilson was no "smear." But under the Justice Department's long-standing interpretation of the 1917 Espionage Act, Fitzgerald could have prosecuted Libby for deliberately leaking classified information (Plame's CIA role).

To be sure, Fitzgerald has not alleged that Plame was a "covert agent" as defined by the more narrowly drafted Intelligence Identities Protection Act of 1982. But the Justice Department—especially in this administration—sees any deliberate leak of classified information as punishable by up to 10 years in prison under the 1917 law.

Fitzgerald has hinted that he did not charge Libby under the broadly worded but rarely used 1917 law for fear of setting an unwise precedent. (So it would have.) Whatever Fitzgerald's reason, it is disingenuous for The Journal—which has not objected to the Bush push to use the 1917 law against leakers—to claim that "there was no underlying crime."

Spin: "And now we know that even the relentless Mr. Fitzgerald has concluded that the charge that Mr. Rove criminally blew Ms. Plame's CIA cover is false."

Fact: Not exactly. It's clear that Rove helped blow Plame's cover. Whether he could have been charged with doing so criminally depends on whether he knew that Plame's identity was classified, which is unclear.

Spin: "In the end, it seems Mr. Fitzgerald was trying to trap Mr. Rove over the minor matter of his failure to remember a conversation with ... Cooper."

Fact: Whether the false Rove testimony was an innocent "failure to remember"—or a lie—will be forever disputed. Fitzgerald's decision not to prosecute means only that he was unsure whether he could prove it a lie beyond a reasonable doubt.

Spin: "Mr. Fitzgerald will also have to prove why a seasoned lawyer such as Mr. Libby had a motive to lie if there was no underlying crime to cover up."

Fact: Proving a motive to lie will be a snap. Libby surely knew when he testified of the Justice Department's classified-leaks-are-crimes doctrine. He knew that Bush had said on September 30, 2003: "If there is a leak out of my administration, I want to know who it is. If the person violated [the] law, the person will be taken care of." He knew of McClellan's statement that Libby and Rove had told him (falsely) that they were "not involved" in the Plame leak.

Finally, the famously loyal Libby knew that any revelation that he had leaked Plame's identity after being told about her by Cheney—who had been intensely interested in discrediting Wilson—could mean big political or even legal trouble for the vice president.