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Crime and Punishment

The fall of Scooter Libby

The conviction of I. Lewis "Scooter" Libby on four counts of perjury and obstruction of justice will surely launch a thousand champagne corks. For my fellow liberals, who have for years--quite understandably--yearned to see the Bush administration's cutthroat politics punished, this symbolic takedown of Dick Cheney (whom Libby served) could hardly taste sweeter. But, as I argued two weeks ago, after the lip-smacking, it will surely leave a bitter aftertaste, too. Is there any hope remaining, folks, that we might keep the bubbly on ice?

In one sense, the verdict cannot be disputed. None of us can mind-read, but it's far from implausible that Libby knowingly lied under oath. The Bush White House has been engaged for so long in deception and smear that Libby may well have ceased to distinguish truth from falsehood. Or, as with so many bogus claims put forward by the Bushies, maybe he firmly convinced himself that falsehood was truth. In either case, though, he should never have been brought to trial, and the guilty verdicts only confirm prosecutors like Patrick Fitzgerald--declared the "biggest winner" by The Washington Post--in their righteous zealotry.

"It's not the crime, it's the cover-up." Few nuggets of political wisdom circulate more often in Washington. Few are more wrong. The old saw supposedly applies to Richard Nixon and Watergate. But, in Watergate, the crime itself--breaking into the opposing party's headquarters in an effort to subvert a presidential election--was self-evidently criminal and unconstitutional and merited Nixon's impeachment. Covering up only made matters worse. In contrast, during Kenneth Starr and Newt Gingrich's jihad against Bill Clinton, it didn't matter whether the president lied under oath, since his Republicans tormentors had no business asking him about Monica Lewinsky in the first place. (Indeed, a federal judge agreed that Clinton's statements about Lewinsky were immaterial to the sexual harassment case in which they were asked.) There may have been a cover up, but there was no crime.

So it turns out that the crime actually matters more than the cover up. And, in Plamegate, what was the underlying crime? An alleged--and never proved--violation of the little-used and noxious Intelligence Identities Protection Act, which prohibited the deliberate exposure of a covert agent. That 1982 act was partly a response to the serial disclosure of hundreds of intelligence officials in the 1970s and early '80s by the former CIA operative Philip Agee and his associates. Now, it's one thing to argue that a systematic effort to endanger the entire American intelligence operation merits punishment; it's another to single out one instance of leaking for criminalization. Valerie Plame's career may have been ruined, and Libby and Cheney should be held responsible for that--through the civil suit she has filed. But her exposure as an agent shouldn't be grounds for jailing even a sleazy operative.

For years, liberals admirably sided with reporters and the American people in asserting that the "public's right to know" almost always outweighs government claims that "national security" justifies the concealment of information. And, in Clinton's case and others, liberals rightly assailed the stunted moral sensibility that lies behind calls for "zero tolerance," whether of lying or other transgressions. ("Any lie under oath is serious," Fitzgerald pompously intoned today. "The truth is what drives the justice system.") In this hour of schadenfreude, we should remember our vision of an open, liberal society. For is there any doubt that if it were a Democratic White House aide who had leaked the name of a CIA agent in order to discredit an administration critic, we would be calling this whole trial a travesty and a sham?

By David Greenberg