Image How would you like to have a federal prosecutor come after you with all the power and resources of the government, pin you down on some conversation of two years ago - about something involving no crime - then convict you of "obstructing justice" if your memory didn't match the memory of the other party to the conversation? Sounds outrageous? Well, that's what happened to Lewis "Scooter" Libby - Vice President Cheney's former chief of staff.

You can love or hate (or not care about) Mr. Libby, according to your political leanings, but if you're a conscientious American, you should be putting a clothespin on your nose right about now - which is what several of the jurors in the Libby trial said they did. I am embarrassed for our government and embarrassed for people I thought were leaders - Mr. Bush, in particular.

I mention President Bush because he stepped right into the trap his enemies set for him by appointing Special Prosecutor Patrick Fitzgerald to investigate the Valerie Plame case in 2003. Democrats and Big Media were obsessing about Miss Plame's CIA "secret agent" status being "outed". Her husband, former ambassador Joseph Wilson, had accused Mr. Cheney's office of the disclosure, claiming it was "payback" for his New York Times article of July 6, 2003. (1)

In that article - sprinkled with colorful descriptions of camel caravans crossing the Niger River whilst he sipped mint tea in Niger - Joe Wilson said Mr. Bush had "twisted" the truth about Saddam Hussein buying Nigerian uranium. (Mr. Wilson had been sent to Africa in 2002 to ascertain the facts.) "It was highly doubtful that any such transaction had ever taken place," he wrote. But Mr. Bush never claimed that, saying only that an attempt was made. Mr. Wilson argued that documents supposedly detailing the uranium "deal" were probably "forged", but intelligence analysts knew those documents were frauds before he went to Niger.

Mr. Wilson misrepresented his own findings about Iraq's quest for "yellowcake" (uranium oxide), as the Times and the Washington Post were later chagrined to learn. This might have been due to ignorance. He knew of the Iraqi mission to Niger in 1999, but knowledgeable parties said Mr. Wilson seemed not to recognize that diplomat Wissam al-Zahawie, who headed the mission, was experienced in nuclear-related matters. An Iraqi mission to Niger could have no purpose except to seek uranium, as that valuable metal is Niger's only real export. Ambassador al-Zahawie's participation makes sense only within that context.

Mr. Wilson lied about who sent him to Africa. He claimed it was Mr. Cheney, but it was really the CIA - after his well connected wife recommended him to her superiors. This fact, detailed in a CIA memo, came out soon after Joe Wilson's article made him the anti-Bush crowd's darling. His puffed-up self-importance deflated, Wilson furiously accused the Bush administration of disclosing his wife's covert status to punish him for his "findings". Mr. Bush appointed Mr. Fitzgerald to keep the Plame case from perturbing the 2004 election.

But Valerie Plame's "secret agent" status was a lie, too. At his investigation's start Mr. Fitzgerald found that Miss Plame was not "covert", as defined by the law proscribing disclosure of covert-agents. Perhaps she had worked undercover in the past, but not recently enough to fit the law's time-constraints. The mere revelation that she worked for the CIA was not illegal, and those who mentioned it - either in print or in passing - had committed no crime. In the hurly-burly of the Libby case, many reporters and politicians have failed (or chosen not) to notice that the Libby trial was not about unlawful disclosure of Miss Plame's status. A substantial segment of the public, as well as numerous politicians, remain confused on this central point.

Since determining whether that violation had occurred was Mr. Fitzgerald's entire commission, his investigation should have ended when he learned otherwise. But it didn't. Nor did it end after he learned that the original "leaker" of Miss Plame's CIA employment was a loose-tongued assistant Secretary of State named Richard Armitage. Instead, Mr. Fitzgerald continued investigating...what? Whether Mr. Libby, who talked with dozens of people each week, could recall a particular non-criminal conversation exactly as reporter Tim Russert did? A grand jury questioned Scooter Libby and others about who said what - when and to whom - regarding a topic that was not illegal to discuss. How was justice served by that inquiry?

From the start, Democrats fervently hoped Mr. Fitzgerald's investigation would become another Watergate scandal, smearing and wounding numerous Bush administration officials, including - should it please the gods - perhaps even the president himself. At the very least, there was the expectation that (the hated) Karl Rove would be "frog-marched out of the White House in handcuffs", as one partisan so quaintly put it. The "indictment watch" on Mr. Rove reached the intensity of a pre-execution candlelight vigil - with joyous celebrations scheduled to break forth when it was announced. When Mr. Fitzgerald declined to indict Mr. Rove, the disappointment among Democrats and their media fellow travelers was palpable. 

Nevertheless, Mr. Fitzgerald's face-saving prosecution of Scooter Libby - without which his efforts were barren - ground mindlessly on until the jury returned guilty verdicts on four counts of perjury. Post-verdict statements suggest that some jurors thought the conviction held the Bush administration accountable for manipulating war intelligence. Democratic politicians like Senator Harry Ried certainly saw it that way. The trial judge had specifically ruled Miss Plame's covert (actually, non-covert) status immaterial to the perjury trial. Yet Mr. Fitzgerald still mentioned her "secret" status in his closing argument. Not only was this fact non-material - it was not a fact at all! It was a falsehood that clearly confused the jury. If this does not produce a reversal or a new trial, on appeal, then "judicial error" has ceased to have meaning.

This case has been a fiasco from the first day Mr. Fitzgerald learned that the 1982 Intelligence Protection Act did not apply to Valerie Plame. A "reasonable man" would have immediately closed up shop, issued a one-page report, and gone home. But prosecutors are not necessarily reasonable men. Instead, Mr. Fitzgerald labored mightily for three years to make his bones as the man who got Scooter Libby on a misremembered conversation. (Bravely done.)

Mr. Fitzgerald likes to wax lyrical about the need for integrity in the legal profession. He should listen to his own rhetoric. A multi-million dollar investigation of a non-crime, culminating in prosecution of a blameless man over meaningless conversations of two years earlier, is not an expression of legal integrity. It is a perversion of it. A child could see this. Had Mr. Fitzgerald acted with "integrity", a decent man could have been spared financial ruin and prison, the public purse could have saved millions, and the law's reputation might actually have been enhanced. Instead, a vile stink permeates our legal system. It won't dissipate anytime soon

I heard a talk-show caller say Mr. Libby deserved conviction because the Bush administration tried to discredit their critic, Joe Wilson. This was the "underlying crime", said the caller. What rubbish. Since when did casting aspersions on a political critic's credibility become a crime? If it were, half of the House and Senate would be in the Big House.

This mess began (as I intimated earlier) when Mr. Bush took the lazy route of appointing a special prosecutor. I say "lazy" because he and his legal staff neglected "due diligence" before making an important decision. One of those high-powered White House lawyers should have been able to make the critical finding of fact that Miss Plame was not a "secret agent", within the law's definition - hence, no crime. This would have let Mr. Bush sidestep the special prosecutor trap. Being inexperienced at this particular game, perhaps he thought a special prosecutor would take the heat off. If so, it was a classic misunderestimation.

Mr. Bush should have stopped this atrocity once it became clear there was no crime. If he does not end it now, with an immediate pardon of Mr. Libby, the incident will permanently stain his presidency. Letting other branches of government do their work is a noble republican impulse - provided they are actually doing it. But the presidency is more than an observation post. And "governing" is not standing idly by while innocent staff get savaged for faux crimes. I thought Mr. Bush had more political smarts, more loyalty, and more backbone. Maybe I was wrong.


(1) "What I didn't Find in Africa", by Joseph Wilson; New York Times, July 6, 2003.