Law and Disorder: Sherman's March through the Law

It’s Law and Order time, Fred Thompson writes about the Libby conviction for AEI.
JRH
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Law and Disorder: Sherman's March through the Law

By Fred Thompson

Posted: Wednesday, March 7, 2007

American Enterprise Institute for Public Policy Research

Doesn't Patrick Fitzgerald look like a man who has dodged a bullet and is ready to get out of town? That was my first impression after watching the special-prosecutor's press conference after news came down Wednesday about Scooter Libby. It would seem that prosecuting a Bush official before a Washington jury is not necessarily a slam dunk after all when the gruel is this thin.

Two crucial decisions were made in order for this sorry state of affairs to have played out this way. The first was when the Justice Department folded under political and media pressure because of the Plame leak and appointed a special counsel. When DOJ made the appointment they knew that the leak did not constitute a violation of the law. Yet, instead of standing on that solid legal ground they abdicated their official responsibility.

The Plame/Wilson defenders wanted administration blood because the administration had had the audacity to question the credibility of Joe Wilson and defend themselves against his charges. Therefore, the Department of Justice, in order to completely inoculate themselves, gave power and independence to Fitzgerald that was not available to Ken Starr, Lawrence Walsh, or any prior independent counsel under the old independent-counsel law. Fitzgerald became unique in our judicial history in that he was accountable to no one. And here even if justice had retained some authority they could hardly have asked Fitzgerald why he continued to pursue a non-crime because they knew from the beginning there was no crime.

From there the players' moves were predictable. Fitzgerald began his Sherman's march through the law and the press until he thought he had finally come up with something to justify his lofty mandate--a case that would not have been brought in any other part of the country.

The media by then was suffering from Stockholm syndrome--they feared and loved Fitzgerald at the same time. He was establishing terrible precedent by his willingness to throw reporters in jail over much less than serious national-security matters--the Ashcroft standard! Yet Fitzgerald was doing the Lord's work in their eyes. This was a "bad leak" not a "good leak" like the kind they like to use. And it was much better to get the Tim Russert and Ari Fleischer treatment than it is to get the Judith Miller treatment. Fitzgerald paid no price for his prosecutorial inconsistencies, his erroneous public statements, or his possible conflicts of interest. And now they get to point out how this case revealed the "deep truths" about the White House.

The second decision was made by Libby himself. It was the decision to spend eight hours without counsel in a grand-jury room with Fitzgerald with this controversy swirling around him while trying to remember and recount conversations with various news reporters--reporters who he knew would be interviewed about these conversations themselves. These, of course, were reporters Libby had no right to expect to do him any favors. This sounds like a man with nothing to hide. This sounds like a man who doesn't appreciate the position he is in or what or whom he is dealing with.

It is ironic that what Libby is facing today is not due to the evil machinations so often attributed to the White House but rather due to an apparent naivety.

Like most Washington political fights, very few participants have been left unscathed. Among the results of this investigation and trial, there will be less cooperation by public officials in future investigations and less ability of reporters to get information. We should ask ourselves: Are our institutions or is our sense of justice stronger because of this prosecution?

Fred Thompson is a visiting fellow at AEI.

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