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Nov 1, 2005 4:27 pm

Rating Scootergate

Scandals are a staple of Washington fare, but to mix a metaphor, where there is smoke there may or may not be fire. On Friday Patrick Fitzgerald indicted Lewis (“Scooter”) Libby with lying under oath (perjury), making false statements, and obstructing justice by misleading the grand jury. The charge is that the grand jury was investigating a crime, the disclosure of an undercover agent’s name, and that though his lies, Libby tried to keep them from solving the crime. If Libby did in fact knowingly leak the name of CIA agent Valerie Plame, there was fire and a potential breach of the law. If reporters figured out her name and talked with him about it, there was mostly smoke.

Libby was an Assistant to the President and top foreign policy advisor to Vice President Cheney who played an important role in the White House, so the indictment is certainly a scandal. But the appearance of scandal may or may not indicate that there has been a serious breach of the public trust. For instance, the House of Representatives bank scandal of the early 1990s was about Representatives getting what amounted to overdraft protection, rather than any illegal benefit obtained at taxpayer expense. Lots of smoke but little fire, despite the significant political fallout.

But if Libby did in fact leak the name purposefully, where does this stack up with other scandals in recent U.S. history?

Throughout U.S. history there have been plenty of scandals over corruption concerning financial misdeeds -- from President Grant’s vice president Schuyler Colfax accepting railroad stock, to Albert Fall’s secretly leasing U.S. oil reserves at Teapot Dome, to Spiro Agnew accepting retrospective kickbacks from his time as Governor of Maryland. But most money scandals fall into what can be considered “petty corruption,” even though the amounts of money involved may be large. Stealing or accepting money illegitimately by public officials is illegal and morally wrong, but it is also petty in the sense that the primary motive is personal greed.

As bad as financial crimes are, they are not as corrupting of the republic as broader political offences of abuse of power (the powers of office) which involve the inappropriate use of governmental power. Abuse of power undermines the very fabric of limited and constitutional government by using the power of the government not merely for personal gain, but for the more insidious ends of staying in office or undermining the political process. Unlike stealing money, abuse of power sets precedents that the other political party or future officials might use as a justification or excuse for their own abuse of power.

Abuse of power is why Watergate and Iran-Contra stand out in our history.

Watergate involved abuse of power when the political campaigns of the opposition party were sabotaged by people working for the President, when the political opposition was illegally wiretapped by the “plumbers,” and when a government agency (the CIA) was used to interfere with an ongoing investigation into crimes. While the cover-up provided the “smoking gun” that caused Nixon to resign, the original crimes were very serious.

Iran-Contra also involved an abuse of power when members of the president’s staff tried to accomplish their policy goals extra-constitutionally; that is, by giving financial aid to the Contras when it was explicitly against the law to do so. President Reagan escaped impeachment by cooperating with investigators in Congress and the executive branch who found no direct presidential involvement in the illegal diversion of funds from Iran to the Contras in Nicaragua.

President Clinton’s impeachment grew out of his affair with an intern, which was not a crime. But he lied under oath in a sexual harassment case hearing that was later thrown out of court for lack of merit. His lies were wrong, and the House impeachment team made a strong argument that the president’s lies undermined the rule of law. But Clinton’s lies, as bad as they were, were not an abuse of power per se as was the case with Watergate and Iran-Contra. One potential abuse of power in the Clinton administration was the 1993 inappropriate access to FBI background checks on Republicans from the previous administration. If it could have been shown that this was ordered by high officials in the administration and used for political purposes, it would have been a serious abuse of power.

Which brings us back to Lewis Libby. The target of his (alleged) attack was Joseph Wilson who had criticized the administration for seemingly having ignored the report on his trip to Niger during which he concluded that Niger had probably not sold uranium oxide (“yellowcake”) to Iraq. Wilson was charge’ d’affairs in Baghdad in 1990 and had been appointed ambassador to several countries in Africa by President George H.W. Bush. He was sent by the CIA to Niger to determine whether such a transaction had taken place. After a week in Niger, having consulted with the U.S. ambassador there and Niger officials, he reported back to the CIA that “it was highly doubtful that any such transaction had ever taken place.”

After the invasion of Iraq when no WMD seemed to be evident, Wilson wrote an op-ed piece in the New York Times (on July 6, 2003) describing his trip and conclusions. He questioned the assertions by the administration about Saddam’s nuclear capacity because the findings from his trip seemed to undermine those claims. On July 14, columnist Robert Novak said in a column that Wilson’s wife, “Valerie Plame, is an Agency operative on weapons of mass destruction,” and that “two senior administration officials” told him that she had suggested sending Wilson to Niger. It is illegal knowingly to disclose the name of an undercover CIA agent (though at the time Plame was back at Langley and not in the field). Libby is suspected of being one of the “senior administration officials” who disclosed her name to Novak.

If Libby (or Karl Rove, who is still under investigation) did indeed leak Plame’s name and position to Novak, why is this a case of abuse of power rather than merely the usual political payback? White House officials and others often leak information intended to undermine the credibility of political adversaries. The difference here lies in the way in which it was done. The accuracy of Wilson’s report was not refuted, nor was his personal credibility attacked by the leaking of his wife’s name and position. If his trip to Niger was suggested by his wife, that had nothing to do with Wilson’s credibility or his findings. That Plame was currently an analyst rather than an agent does not mitigate the national security problem.

It would not have been a legal issue if White House operatives had argued that Wilson’s conclusions were wrong or even that he was incompetent to make the judgments that he did. But they didn’t; they (allegedly) blew his wife’s cover. Thus the message was: if you cross us or challenge the president, we will get you; and we will not hesitate to harm your wife’s career, and we will go so far as to undermine national security assets and (possibly) break the law in order to get back at you.

The Plame leak (if true) may not seem to be in the same class as Watergate or Iran-Contra, but blowing a clandestine agent’s cover is a serious matter that undercuts her usefulness to the defense of the United States. Her life as well as any contacts or networks she had developed throughout her career may have been put in jeopardy. Such revelations can have deadly consequences. Furthermore, she was working on nuclear proliferation, which has taken on new urgency since 9/11.

But since Libby was accused of lies and obstruction of justice rather than of the leak itself, is it fair to prosecute him for lying? The prosecutor argues that lying under oath, especially to a grand jury investigating a serious crime, is a serious crime in itself. Certainly the punishment for these felonies could add up to decades in jail for Libby. President Clinton, after all, was impeached for lying under oath.

Political judgments may end up to be just as important as the legal outcome of Libby’s trial – for President Bush, if not for Mr. Libby. The political judgment about the legitimacy of prosecuting Libby for lying or conspiracy turns on how strong the evidence is that he was involved in revealing Plame’s name for political purposes (for instance was he lying to protect others?). If the public is convinced that he did not knowingly leak her name and just made honest mistakes in his answers to the grand jury, prosecuting him for lying has less political legitimacy, regardless of the legal case. If on the other hand, the public believes that he did knowingly leak her name for political purposes, his actions may be judged harshly as an abuse of power, regardless of the outcome of the legal proceedings. One unknown factor is whether future charges will be levied against the President’s deputy chief of staff, Karl Rove.

It may well be that that the success of President Bush’s second term will hinge on whether the public decides if we are dealing with “smoke” or “fire.”

Note: This piece first ran in Newsday.

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Maia Cowan - 11/7/2005

"But since Libby was accused of lies and obstruction of justice rather than of the leak itself, is it fair to prosecute him for lying?" As Fitzgerald took pains to explain in his press conference announcing the indictments, Libby's alleged lies about where he learned about Valerie Plame's role as a CIA agent prevented Fitzgerald from determining whether the leak was inadvertent or deliberate, and who else might have been involved in the leak. Libby allegedly lied in order to obstruct the investigation and prevent the people responsible for the leak from being held accountable. The destruction of a CIA network that was pursuing illegal weapons of mass destruction is a serious matter, and the obstruction of an investigation into the actions that destroyed the network is a serious matter.