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Rampant leaks notwithstanding, no one but Patrick Fitzgerald knows all of the criminal evidence the special prosecutor is considering against senior White House officials. Our hope is that he also understands that the job of a prosecutor is not to settle what at bottom is a political and policy fight over the war in Iraq.
Let's stipulate that the law is the law, and if Bush Administration officials lied to a grand jury in the clear and obvious way that Bill Clinton did, they should be prosecuted. If Mr. Fitzgerald has evidence of a malicious attempt to expose a CIA undercover agent, as defined by the relevant statute, the same applies. But the fact that the prosecutor has waited as long as he has--until the last days of his grand jury--suggests that he considers this a less than obvious case. A close call deserves to be a no call.
All the more so because this entire probe began and has continued as a kind of proxy for the larger political war about the Iraq War. In July 2003, Joseph Wilson used his insider status as a former CIA consultant to accuse the Bush Administration of lying about Iraq WMD as an excuse to go to war. A political furor erupted, and Mr. Wilson became an antiwar celebrity who joined the Kerry for President campaign.
Amid an election campaign and a war, Bush Administration officials understandably fought back. One way they did so was to tell reporters that Mr. Wilson's wife, CIA analyst Valerie Plame, had been instrumental in getting him the CIA consulting job. This was true--though Mr. Wilson denied it at the time--as a bipartisan report by the Senate Intelligence Committee documented in 2004.
As it does many times each year following a press report with classified information, the CIA routinely referred this "leak" about Ms. Plame's status to the Justice Department for investigation. Only after someone (probably at the CIA) leaked news of this referral to the media in September 2003 was there another political uproar and calls for a "special prosecutor." Three months later, the panicky Bush Administration relented, and Mr. Fitzgerald was appointed.
Mr. Wilson's original claims about what he found on a CIA trip to Africa, what he told the CIA about it, and even why he was sent on the mission have since been discredited. What a bizarre irony it would be if what began as a politically motivated lie by Mr. Wilson nonetheless leads to indictments of Bush Administration officials for telling reporters the truth.
Mr. Fitzgerald's original charge was to investigate if anyone had violated the 1982 Intelligence Identities Protection Act. But as we and others have repeatedly written, to violate that law someone must have deliberately and maliciously exposed Ms. Plame knowing that she was an undercover agent and using information he'd obtained in an official capacity. Ms. Plame was surely not undercover, and her own husband had essentially made her "outing" inevitable when he exploited his former CIA consultant status (that she had helped him obtain) to inject himself in the middle of a Presidential campaign.
Mr. Fitzgerald may have recognized this problem early, because in February 2004 he asked for permission for much broader investigative authority. It was granted by the man who appointed him, his friend and then Deputy Attorney General James Comey. (Attorney General John Ashcroft had recused himself, in what looked to us then, and still does today, as an act of political abdication.) Mr. Fitzgerald's office only recently created a Web site and has posted Mr. Comey's letters--an act of odd timing, at the least.
Media reports say Mr. Fitzgerald is also exploring violations of the 1917 Espionage Act, for leaking classified information. This law has rarely been enforced, and if leaking classified information was routinely prosecuted half of Washington would be in jail. That September 2003 story about the CIA referral to Justice to investigate the Plame "leak" was itself a disclosure of classified material. You could hardly pick up a paper in 2004 without reading selectively leaked details from classified documents leading up to the Iraq War--an obvious attempt to discredit the war and elect John Kerry. An indictment based on this statute would be an egregious case of selective prosecution.
Yes, that still leaves the possibility of a "coverup," and we don't know all that Mr. Fitzgerald knows on that score. But the evidence that is so far public has revealed nothing like Watergate or even the Clinton campaign-finance scandals. It is also hard to believe that a seasoned lawyer like I. Lewis Libby, Vice President Cheney's chief of staff, would be so foolish as to lie to a grand jury. The press is full of reports of discrepancies in accounts of who told what to whom. However, an obstruction of justice charge against senior officials ought to require more definitive evidence.
The temptation for any special counsel, who has only one case to prosecute, is to show an indictment for his money and long effort. But Mr. Fitzgerald's larger obligation is to see that justice is done, and that should include ensuring that he doesn't become the agent for criminalizing policy differences. Defending a policy by attacking the credibility of a political opponent--Mr. Wilson--should not be a felony.
As for Mr. Bush, we hope he realizes that anyone who is indicted was defending his policy and his Presidency. He should consider carefully the nature of the charges and the evidence before he dismisses his most loyal advisers.
