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The Runaway Train That Hit Scooter Libby
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By Richard Cohen
Tuesday, June 19, 2007

The attorney general called a meeting. He assembled all the U.S. attorneys in the Great Hall of the Justice Department and told them, in essence, that their chief responsibility was to decide whom not to prosecute. They should limit themselves to cases "in which the offense is the most flagrant, the public harm the greatest" and play no role in political vendettas. The speaker, of course, was not the lamentable Alberto Gonzales but the estimable Robert H. Jackson, who went on to the Supreme Court. This was 1940, but Jackson could have been talking to Patrick J. Fitzgerald. Whatever the case, the special counsel was not listening.

With the sentencing of I. Lewis "Scooter" Libby, Fitzgerald has apparently finished his work, which was, not to put too fine a point on it, to make a mountain out of a molehill. At the urging of the liberal press (especially the New York Times), he was appointed to look into a run-of-the-mill leak and wound up prosecuting not the leaker -- Richard Armitage of the State Department -- but Libby, convicted in the end of lying. This is not an entirely trivial matter since government officials should not lie to grand juries, but neither should they be called to account for practicing the dark art of politics. As with sex or real estate, it is often best to keep the lights off.

The upshot was a train wreck -- mile after mile of shame, infamy, embarrassment and occasional farce, all of it described in the forthcoming "Off the Record," a vigorously written account of what went wrong, by Norman Pearlstine, Time Inc.'s former editor in chief. The special counsel used the immense power of the government to jail Judith Miller and to compel other journalists, including Time's Matt Cooper, to suspend their various and sacred vows of silence just so they could, understandably, avoid jail. The press held itself up to mockery, wantonly promising confidentiality, anonymity -- what's the diff, anyway? -- and virtual life after death to anyone with a piece of gossip to peddle. Much heroic braying turned into cries for mercy as the government bore down. As any prosecutor knows -- and Martha Stewart can attest -- white-collar types tend to have a morbid fear of jail.

As Fitzgerald worked his wonders, threatening jail and going after government gossips with splendid pluck, many opponents of the Iraq war cheered. They thought -- if "thought" can be used in this context -- that if the thread was pulled on who had leaked the identity of Valerie Plame to Robert D. Novak, the effort to snooker an entire nation into war would unravel and this would show . . . who knows? Something. For some odd reason, the same people who were so appalled about government snooping, the USA Patriot Act and other such threats to civil liberties cheered as the special prosecutor weed-whacked the press, jailed a reporter and now will send a previously obscure government official to prison for 30 months.

This is precisely the sort of investigation that Jackson was warning about. It would not have been conducted if, say, the Iraq war had ended with 300 deaths and the mission had really been accomplished. An unpopular war produced the popular cry for scalps and, in Libby's case, the additional demand that he express contrition -- a vestigial Stalinist-era yearning for abasement. No one has yet explained, though, how Libby can express contrition and still appeal his conviction. No matter. Antiwar sanctimony excuses the inexplicable.

Accountability is one thing. By all means, let Congress investigate and conduct oversight hearings with relish and abandon. But a prosecution is a different matter. It entails the government at its most coercive -- a power so immense and sometimes so secretive that it poses much more of a threat to civil liberties, including freedom of the press, than anything in the interstices of the scary Patriot Act. The mere arrival of a form letter from the IRS will give any sane person a touch of angina.

I don't expect George Bush to appreciate this. He is the privileged son of a privileged son, and he fears nothing except, probably, doubt. But the rest of us ought to consider what Fitzgerald has wrought and whether we are better off for his efforts. I have come to hate the war and I cannot approve of lying under oath -- not by Scooter, not by Bill Clinton, not by anybody. But the underlying crime is absent, the sentence is excessive and the investigation should not have been conducted in the first place. This is a mess. Should Libby be pardoned? Maybe. Should his sentence be commuted? Definitely.

cohenr@washpost.com

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