First Brooks, Then Kinsley

It seems there's almost a career--though not a well-paid one--in correcting columnists who write about the Scooter Libby case for The New York Times . First came conservative David Brooks' reaction to George W. Bush's commutation of Libby's 30-month prison sentence (see the item below). Then there was liberal Michael Kinsley's defense of the commutation. Kinsley, who I respect (and sometimes envy) as a talented columnist and magazine editor, maintains that the vice president's chief of staff was caught in a "perjury trap," much like Bill Clinton during the days of Monica madness. And Kinsley doesn't fancy such entrapment, whether the prey is a Democrat or a Republican. Libby, he argues, deserved to be placed in a corner no more than Clinton did. Consequently, Kinsley continues, Bush was right to spare Libby time in the slammer.

Kinsley writes:

So when Mr. Libby was questioned by federal investigators pursuing the leaks, he too was caught in a perjury trap. He could either tell the truth, thereby implicating colleagues and very possibly himself, in leaking classified security information (the identity of Mr. Wilson's wife), or he could lie. In either case he would be breaking the law or admitting to having done so, and in either case he could have gone to prison. Mr. Libby, like Mr. Clinton, made the wrong choice.

There is nothing wrong with a perjury trap, as long as both sides of the pincer are legitimate. The abuse comes when prosecutors induce a crime (lying under oath) by exploiting an action that is not a crime.

But Kinsley's argument is faulty. Clinton was literally the target of a trap. Political foes of the Clinton administration (remember the "elves"?) pushed the Paula Jones civil lawsuit against the president in order to put Clinton in the position where he would have to answer questions under oath regarding his extracurricular sexual activities (beyond his alleged conduct in the Jones matter). He was trapped by design. Due to this civil lawsuit, he had two rather unpleasant alternatives: acknowledge his sexual interactions with Monica Lewinsky (and see his answers publicized) or lie about them (and be vulnerable to a perjury charge). This was an orchestrated dilemma. Clinton chose the lying course, and his opponents got what they wanted--grounds for impeachment.

That's not what happened with Libby. No one sought to snare him. FBI agents investigating the CIA leak routinely questioned him, as they did other senior officials of the Bush administration. They were looking for whatever information they could obtain on the leak that disclosed information identifying Valerie Plame Wilson as an undercover CIA officer. The leak--as far as the investigators were concerned--had two outlets: the Robert Novak column of July 14, 2003, that first revealed Valerie Wilson's CIA identity and a Time magazine web piece that appeared three days later that confirmed her CIA position.

Though the FBI investigators knew at the time of their first interview with Libby that Richard Armitage, then the deputy secretary of state, had been one source for Novak, they were still looking for whatever info they could find on all the sources for the Novak column and the Time.com article.

As we now know, in the course of his interviews with the FBI (and then during two grand jury appearances), Libby denied knowing about Valerie Wilson's CIA employment at the time of the leak (though--oddly--he acknowledged he had known about it weeks earlier), and he denied passing any hard information on her to reporters. He claimed that days before the leak he had heard about her CIA connection from Tim Russert as gossip and then slipped that scuttlebutt to reporters.

That claim was, as a jury found, not true. Libby had sought and had received information from various government officials on Valerie Wilson's CIA connection several times before sharing it with Judith Miller, then of The New York Times , and with Matt Cooper, then of Time . It took the FBI a little while to sort all that out. But soon after Libby told the FBI about his purported conversation with Russert, the lead FBI investigator on the case called Russert, and the Meet the Press anchor told the FBI man that he had said no such thing to Libby. Russert explained that it would have been impossible for him to have shared gossip about Valerie Wilson with Libby because he had not known anything about her until after the leak became public.

The FBI gumshoes now confronted a difficult issue--and Patrick Fitzgerald inherited it when he was appointed special prosecutor in late 2003. The FBI had apparently caught the vice president's chief of staff in a lie. They had not endeavored to set him up. They had gone to him looking for just the facts. Now Fitzgerald and the FBI agents had a choice: pursue a perjury case or not. And--just as important--they also had to wonder why Libby had lied to them. Was he covering up evidence of a crime? Fitzgerald elected to investigate the possible perjury.

Kinsley's definition of a perjury trap is quite broad if it includes these circumstances--and so broad that anyone who lies to federal investigators in a case in which there may or may not be an indictment can cry, "I was trapped!" The investigation of the CIA leak was a good-faith endeavor. Though the law prohibiting government officials from disclosing information about secret CIA officers was poorly written and has a hard-to-meet threshold for prosecution, there was nothing wrong with the FBI--responding to a CIA request--examining these circumstances to determine if the law did apply. Like Kinsley and other journalists, I worry about the going-after-reporters precedent that was established. But Libby was not defending reporters' rights when he lied to the FBI and a grand jury. There was no trap.

Libby was indeed in a tough spot. He had been involved in the leak. He and his boss had gathered information on Valerie Wilson, as part of their efforts to discredit her husband. The White House had said that anyone who leaked would be booted out of the administration. Libby had reason to lie to the investigators in order to keep himself and Dick Cheney out of the crosshairs. He thus fell into a trap of his own making.

Now I hope the Times will stop running apologia for Libby, and I can get back to blogging about other affairs of state and punditry.

Posted by David Corn at July 9, 2007 11:07 AM