Plame/Wilson/Libby/Rove Redux

My October 18 post on the then-possibility that Scooter Libby and/or Karl Rove would be indicted, has generated more comments than any post in the 10-month history of this site. And, the comments demonstrate that I need to clarify what I am saying both in the original post and in the follow-ups here and here.

The main thrust of the comments was disbelief that I could say outing Valerie Plame was not a crime. This comment comes, I think, from the different meanings of the term "crime". (Do I sound Like Bill Clinton?)

In common parlance, we tend to call actions we think of as despicable "crimes," as in the statement "That's a crime!" I myself used it in that sense in the post on Frank Rich's Op-Ed piece in the October 24 NYT. Rich described a wag-the-dog scenario in which Rove/Libby/Cheney et al. had quite self-consciously manufactured evidence for going to war in Iraq in order to assure a Republican victory in the 2002 mid-term elections (Rove's motivation) and to further the neoconservative wet dream of "mak[ing] the Middle East safe for democracy (and more secure for Israel and uninterrupted oil production)" (Libby/Cheney's motivation). In Rich's view:

Mr. Libby's and Mr. Rove's hysterical over-response to Mr. Wilson's accusation, [was the result of the fact that Wilson] scared them silly. He did so because they had something to hide. Should Mr. Libby and Mr. Rove have lied to investigators or a grand jury in their panic, Mr. Fitzgerald will bring charges. But that crime would seem a misdemeanor next to the fables that they and their bosses fed the nation and the world as the whys for invading Iraq.

I allowed that, if this were true, that would be "a real crime."

But, when it comes to indictments, the word "crime" has a much more technical meaning: it is that set of acts and states of mind that the law says is criminal and nothing more or less. It was in this sense that I was using the term when I argued that outing Valerie Plame/Wilson was not "a crime." I did not intend to suggest the outing was reasonable or appropriate or anything of the kind. What I was saying was that, however despicable the outing and the motivations behind it may have been, Fitzgerald was not going to be able to indict Libby or Rove for the outing itself, because he was not going to be able to prove that Rove or Libby knew Plame was a covert operative and knew that the CIA was then trying to keep her CIA employment a secret. And, without such knowledge, telling reporters that Plame worked for the CIA was not "a crime."

And therein lies the problem I see in the Libby indictment. When a person does something that is despicable but not technically a crime, we have a tendency to want to get him for something that is a crime (in the technical sense) in order to punish him for the act that is really at issue but is not legally punishable. It is this motivation that led us to go after Al Capone on tax evasion and it is this same "rough sense of justice" that leads us to applaud the indictment of Libby on perjury and obstruction of justice. We are not, I submit, angry at Libby for lying about who told him Valerie Plame worked for the CIA. That is venal and contemptible and cowardly, but, if he had been lying about something trivial (like Clinton's affair with an intern), my guess is we would feel a lot less gleeful about the fact that he was indicted. The things we are really angry about are the lies that contributed to getting us into war and the subsequent attempts to cover-up those lies by punishing personally and vindictively a critic that was in a position to call those earlier lies into question. It is for these acts we want to see Libby and Rove punished. But those acts are not "crimes" in the legal sense. So, we want to get them for things we don't really care all that much about, but which nonetheless result in what we feel is well deserved punishment.

I don't deny a certain atavistic satisfaction seeing Libby indicted. Still, I must confess to being a bit embarrassed by that feeling, for there is a very great danger involved in saying, in effect, "Look, this is a very bad man who did very bad things, so we have to convict him of something, never mind what." It is hard to assure that such a genie, once let out of the bottle, will only be loosed on those who really deserve it.