The strange case of Scooter Libby

The bizarre Libby trial is over, a good time to take a hard look at this strange case. There's been a lot of commentary on the essentially empty nature of the trial, and even from quarters not sympathetic to Libby or the administration, a sense that the whole thing should never have been allowed to go this far. Like many such prosecutions, once the substance of the case (the supposed leak of Valerie Plame's name as a covert CIA agent) had evaporated, all that was left was to prosecute for "resisting investigation." Even the Washington Post, while accepting the verdict that Libby had lied to investigators, was harsh on special prosecutor Patrick Fitzgerald and his media-enabled obsession with taking down anyone he could:

Yet after two years of investigation, Mr. Fitzgerald charged no one with a crime for leaking Ms. Plame's name. In fact, he learned early on that [the] primary source was former deputy secretary of state Richard L. Armitage, an unlikely tool of the White House. The trial has provided convincing evidence that there was no conspiracy to punish Mr. Wilson by leaking Ms. Plame's identity .... It would have been sensible for Mr. Fitzgerald to end his investigation after learning about Mr. Armitage. Instead, like many Washington special prosecutors before him, he pressed on, pursuing every tangent in the case. In so doing he unnecessarily subjected numerous journalists to the ordeal of having to disclose confidential sources or face imprisonment. One, Judith Miller of the New York Times, lost several court appeals and spent 85 days in jail before agreeing to testify. The damage done to journalists' ability to obtain information from confidential government sources has yet to be measured.

Similarly, the New Republic, even before the Libby verdict came down, expressed serious forebodings about the prosecution and jailing of Miller, essentially for inaccurate reporting and (eventually) unpopular opinions on Iraq (article requires subscription). This may be the most serious damage the trial does, since Libby's conviction is likely to be overturned on appeal. Jailing Miller for refusing to divulge journalistic sources has opened a large breach in the protections that once sheltered reporters from being railroaded for covering controversial topics. The same army of pundits on the left who supported Miller's jailing will soon be regretting it, if they aren't already. The New York Times' Anthony Lewis forsees an impending crisis for the press in the US (requires registration).

Of course, journalists are not a priesthood or a fourth branch of government. The superficial professionalization of journalism in the last 50 years has fed such delusions. Freedom of speech and communication are basic and universal civil rights - not corporate or guild privileges of the press. Unfortunately, the line between media and government has become so blurred that reporters - who are, after all, not constitutionally elected or appointed by anyone - are in real danger of becoming routine legal targets in future political battles. It's an open question whether the continuing, dramatic decline in the general public's respect for journalists weakens society's overall respect for First Amendment rights. See here and here for further thoughts.

Once the underlying facts had become fully public (last summer, at the latest), the Libby case should have been dismissed. We know who identified Valerie Plame, wife of Joe Wilson, as a CIA agent. Plame was not a covert agent to begin with, and Plame and Wilson are the only people we know for sure lied during this entire story. And Miller never had any connection with Libby at all. In the end, the case amounted to, at most, a cover-up without a crime; a deranged left-liberal commentariat looking for someone's blood, somewhere, no matter how absurd their vendetta; and a figure now familiar in America, the out-of-control prosecutor. This last fact argues strongly for ending the indefensible and mischief-causing special prosecutor law - as if previous cases, like the overkill of the Clinton impeachment, didn't already make that case.*

The more basic problem is the misuse of the legal system to carry out what are really political or policy fights. Liberals pioneered this misuse of the law a generation ago. Occasionally, as in the Clinton impeachment, conservatives have gotten in on it, but the diversion of liberal politics into media spectacle and the courtroom remains a striking reminder of the decline of liberalism - why liberals no longer command a majority: they abandoned politics and persuading people to vote for them and, instead, decided to misuse the courts, the media, and academia as alternatives. And it has done them no good. All it's done is to bring those once-respected institutions into disrepute.
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* Don't expect it any time soon, though - the media loves special prosecutors, since they promise an unending series of scandals and pseudo-scandals and will launch a smear campaign against any politician who tries to stop this madness.