Attack of the Talking Points

Well, it didn't take long. The White House already has its surrogates attacking Fitzgerald and his investigation. Over the next year or so, we're going to have to listen to a lot of talking points like the ones expressed in this agonizingly stupid editorial in Saturday's Washington Post. Here's how it begins:

Special counsel Patrick Fitzgerald's indictment
of I. Lewis "Scooter" Libby should be the final
proof that the system of "special prosecutors"
is bankrupt and ought to be abandoned.

Fitzgerald, a highly respected federal prosecutor
from Chicago, was given the task of investigating
whether Bush administration officials had violated
the Intelligence Identities Protection Act by
"leaking" the identity of CIA employee Valerie
Plame.

It is clear that, at least by sometime in January
2004 -- and probably much earlier -- Fitzgerald
knew this law had not been violated. Plame was
not a "covert" agent but a bureaucrat working at
CIA headquarters. Instead of closing shop,
however, Fitzgerald sought an expansion of his
mandate and has now charged offenses that grew
entirely out of the investigation itself. In other
words, there was no crime when the investigation
started, only, allegedly, after it finished.

It's hard to believe that this is the work of two former Justice Department attorneys. My dog has a better understanding of the law. And it's clear that this editorial was written before the indictments were even handed down. The authors have the facts all wrong and do not appear to have even read Libby's indictment.

It's hard to know where to begin with rubbish like this, so let's just start with the first paragraph. Fitzgerald is the first special prosecutor of his kind, so it's hard to see how anything he does can be the "final proof" that the "system" needs to be abandoned. We no longer have an independent counsel law. Fitzgerald's mandate and his investigation are much narrower than anything we've seen in the past. What do these brilliant legal scholars suggest that we do in a situation where the Attorney General has a massive conflict of interest? Should we really just throw up our hands and not investigate such crimes? Please. There has to be some sort of special counsel mechanism. No serious-minded person honestly thinks otherwise.

The second paragraph states that Fitzgerald was originally tasked with investigating a potential violation of the Intelligence Identities Protection Act. That's not true. Fitzgerald's original mandate, which is posted on his website, refers only to the "unauthorized disclosure of a CIA employee's identity." Fitzgerald was in no way limited to one particular statute. Moreover, it's impossible to investigate anything if you don't also have the power to prosecute people for perjury and obstruction. If you didn't have that power, people would just lie to you and your investigation would go nowhere. In fact, by the time Fitzgerald took over the investigation, his predecessors already suspected that a number of officials, including Karl Rove, had potentially lied to federal investigators. Indeed, it was those concerns that led to Ashcroft's recusal and the appointment of the special counsel (see this article by Murray Waas). So, in a very real sense, Fitzgerald was appointed specifically to investigate the very charges these morons now criticize him for bringing.

Our esteemed editorialists then claim that Fitzgerald "knew" back in January of 2004 that there had been no underlying crime and that Plame was not "covert." Oh really? First, by all accounts, Plame was covert, and nothing Fitzgerald has said or done has suggested otherwise. Second, if you read the indictment, it seems fairly clear that Fitzgerald does think that Libby violated, at the very least, the Espionage Act, but possibly the IIPA as well. The fact that he chose to limit his charges (so far) to perjury and obstruction says nothing about whether or not Fitzgerald thinks the underlying crime was committed. It may mean that he thinks he will have a difficult time proving the underlying crime, but that's an entirely different thing. Moreover, as Fitzgerald himself said, it's difficult to establish whether or not the underlying crime occurred when people are actively obstructing your investigation.

The authors claim that "there was no crime when the investigation started, only, allegedly, after it finished." That's pretty presumptuous, isn't it? The facts recounted in the indictment don't seem to back that up. Plus, the obvious inference to anyone with half a brain is that Libby lied precisely to cover up underlying criminal conduct. That's not necessarily the case, of course, but until we have a better explanation for Libby's behavior, it's clearly the most logical conclusion. Do these authors know something that we don't? Do they have some other explanation for why Libby did what he did? Of course not. They're just mindlessly repeating a talking point.

Brace yourselves folks. This is the kind of nonsense were going to here from Republican talking heads for the foreseeable future.