The Big Idea

Illiberal Prosecution

Why Democrats should take no comfort in the Plame case.

As Special Prosecutor Patrick Fitzgerald mulls possible charges in the Valerie Plame investigation, the gloating in liberal enclaves like Manhattan, Oberlin, and Arianna’s dining room has swelled to a roar. Opponents of the Bush administration are anticipating vindication on various fronts—justice for their nemesis Karl Rove, repudiation of George W. Bush’s dishonest case for the Iraq war, a comeuppance for Chalabi-loving reporter Judith Miller of the New York Times, and even some payback for the excesses of independent counsels during the Clinton years.

Hold the schadenfreude, blue-staters. Rooting for Rove’s indictment in this case isn’t just unseemly, it’s unthinking and ultimately self-destructive. Anyone who cares about civil liberties, freedom of information, or even just fair play should have been skeptical about Fitzgerald’s investigation from the start. Claiming a few conservative scalps might be satisfying, but they’ll come at a cost to principles liberals hold dear: the press’s right to find out, the government’s ability to disclose, and the public’s right to know.

At the heart of this misbegotten investigation is a flawed piece of legislation called the Intelligence Identities Protection Act. As Jack Shafer has written, this 1982 law is almost impossible to break because it requires that a government official unmask covert agents knowingly and with the intent of causing harm. The law was written narrowly to avoid infringing free speech or becoming an equivalent of Britain’s Official Secrets Act. Under the First Amendment, we have a right to debate what is done in our name, even by secret agents. It may be impossible to criminalize malicious disclosure without hampering essential public debate.

No one disputes that Bush officials negligently and stupidly revealed Valerie Plame’s undercover status. But after two years of digging, no evidence has emerged that anyone who worked for Bush and talked to reporters about Plame—namely Rove or Scooter Libby, the vice president’s chief of staff—knew she was undercover. And as nasty as they might be, it’s not really thinkable that they would have known. You need a pretty low opinion of people in the White House to imagine they would knowingly foster the possible assassination of CIA assets in other countries for the sake of retaliation against someone who wrote an op-ed they didn’t like in the New York Times.

But in the hands of a relentless and ambitious prosecutor like Fitzgerald, the absence of evidence that you’ve broken a law just becomes an invitation to develop a case based on other possible crimes, especially those committed in the course of defending yourself, like obstruction of justice and making false statements. Call witnesses back enough times and you can usually come up with something. Special prosecutors never give up, because saying no crime was committed, after investing years and tens of millions of public dollars, counts as abject failure. And if gleanings from the grand jury room are to be believed, Fitzgerald may go beyond the Ken Starr-style foolishness to bring more creative crap charges of his own devising. Fitzgerald’s questions to Judith Miller suggest the possibility of indictments under the much broader and seldom used espionage law or Section 641 of the U.S. Code, which deals with the theft of government property. The Justice Department has used 641 in at least one case, to prosecute a Drug Enforcement Agency analyst who leaked a name from an agency file to the British press.

Already, Fitzgerald’s investigation has proved a disaster for freedom of the press and freedom of information. Reporters, editors, and publishers have been put on notice about the legal risk of using blind sources, which most consider an essential tool of news-gathering. Any ambiguity about a press privilege under federal law has been resolved, not in favor of the media. According to some anecdotal accounts, journalists’ failure to fully protect their sources in the Plame case has already chilled official leaks to reporters. Should Fitzgerald win convictions under the espionage law or Section 641, any conversations between officials and journalists touching on classified information could come become prosecutable offenses. That would turn the current chill into permafrost.

The publisher of the New York Times and its editorial page deserve more blame than they’ve gotten for demanding that former Attorney General John Ashcroft name a special prosecutor in the Plame case. In leading that charge, they failed to think through the logical consequence of the policy they were advocating, namely subpoenaing reporters who were the recipients and only witnesses to leaks from the White House. The New York Times won the great modern battle for freedom of information in the Pentagon Papers case. With the Plame case, it has provoked a no-win showdown that is likely to constrain public disclosure for years to come.

Why did the Times make this mistake, especially after criticizing the out-of-control independent counsels who went after Henry Cisneros, Bruce Babbitt, and Bill Clinton? I think that, like a lot of liberals, the Times editors imagined the Bush team to be so ruthless as to be capable of anything—even taking down a critic by wrecking his wife’s career and endangering the lives of American spies abroad.

Losing a sense of proportion, and of reality, is an occupational hazard when arguing about politics. But Joseph Wilson’s accusation that administration officials outed his wife to punish him for speaking up was never really credible. And by now, a small mountain of evidence points toward a more plausible, nondiabolical motivation for the accidental blowing of Plame’s cover. In her first-person account in the Times, Judith Miller indicates that Libby’s motive in talking to her about Wilson and his wife was the fight between the White House and CIA over whose fault it was that Bush had included faulty intelligence about Saddam’s pursuit of African uranium in his 2003 State of the Union address. That blame game was morphing into a larger public dispute about the administration’s claims that Saddam had weapons of mass destruction. Bush officials were in the middle of an argument in which they were largely wrong, and which they lost, but in which they thought they were right and were trying to win.

In that context, Libby’s comments don’t look anything like retaliation against Joe Wilson—especially now that we know that Libby first mentioned Wilson and his wife to Judith Miller three weeks before Wilson went public with his op-ed piece. As for Rove, so far as we know, he spoke to only a single journalist—Matthew Cooper of Time. According to Cooper, Rove didn’t even know Plame’s name. If that’s a White House smear campaign, Rove’s skills are getting pretty rusty.