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Political Strangulation By Litigation

Vice President Cheney's former Chief of Staff, Scooter Libby, is under criminal indictment for what effectively is a political crime--trying to rebut unfair charges and improper influences on foreign policy by former Ambassador/activist Joe Wilson and his wife, Valerie Plame. A federal prosecutor investigating whether someone had blown the cover on Ms Plame--an employee of the CIA--charged Libby with lying about the timing of his mentions to reporters of Plame's CIA connection. If ever there was a lawsuit desperately in search of a crime, this is it.

The appalling fact is that in the run-up to the Iraq invasion Plame contrived to use her influence at the CIA to help get her husband, Joe Wilson, hired for a study trip to Niger to determine whether Saddam Hussein was attempting to obtain uranium. She succeeded and Wilson later exploited his Niger trip to write a misleading article for the New York Times attacking President Bush's credibility about the Niger story. This set-up by the Wilsons is the real ethical stinker in the whole matter, but it is hardly ever mentioned. Plame obviously knew her husband's political bias against Bush and his policies and saw a chance to use him to attack the President, the head of the government for which she supposedly works. Her action did indeed place her husband in a position to try to discredit Bush later. It therefore was entirely appropriate for Libby or anyone else to reveal her role.

The trial has excited relatively little public interest it is hard for people outside the Beltway to follow. It is about a technicality, a process question, not the outing of Plame as an undercover agent, as it first appeared. Almost from the start of the investigation we learned that "outing" Valerie Plame was not a crime under federal law because she hadn't even been under cover for many years. Her husband had simply exaggerated or misrepresented her position at the CIA to spark misguided indignation among his fellow anti-war friends in the media. What was really outrageous, therefore, was nothing that Libby did but rather the deceitful behavior of Wilson and Plame, much of which was substantiated in a Congressional report. In addition to trying to mislead the Congress, the Wilsons tried to slander the President and Vice President and thereby affect public policy. Further, this suit itself has taken up truly precious time and resources from people in the White House and elsewhere. It has wasted your and my tax money. Distracting their foes from their duties may indeed part of the Wilsons' game from the start.

But the Wilsons' activities are almost forgotten in the present lawsuit. Instead, prosecutor Patrick Fitzgerald has made a federal case out whether one person--Libby--misrepresented to the prosecutor the timing of his role in talking to reporters about the Wilsons. That is the molehill out of which Fitzgerald, stymied in efforts to find some truly consequential crime to go after, is trying to turn into a mountain. It is not a mountain and it probably is not even a molehill.

Anyone who has worked in the White House or any other frantically busy place knows that there are literally scores of conversations, dozens of phone calls and many meetings--some simultaneously!--in a given day. To expect someone to recall later all the details of who said what to whom and in what order is truly unrealistic.

What some years ago Mark Helprin, the novelist and commentator, called "the criminalization of policy differences" is often followed--as in this case--by strangulation by litigation. You tie up a political opponent in court. Thanks to this suit Libby had to leave the White House and go deeply in debt to pay legal bills. His boss had to do without his services. Other White House aides, such as Karl Rove, have been burdened by repeated trips the grand jury. The message: phony political attacks work and public policies can be hampered if you can find a way to invoke legal intervention on some technicality or process accusation.

I am afraid we are going to see much more of this is the months and years ahead.

Mona Charen is a columnist who once served on a White House staff herself. In fact, we were colleagues in the Reagan Administration. We both watched the sort of grotesque and indecent pettifogging now being used against Libby employed against nominees for the Supreme Court and cabinet posts under President Reagan.

Read Mona Charen's latest column "A Farce and an Outrage" here.

You can email brucechapman@discovery.org

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