Misreading Fitzgerald?

In today's New York Times, John Tierney gives his take on what he terms "a very special scandal."

Tierney offers some well-reasoned perspective on Nadagate, something not usually available from the New York Times.

A VERY SPECIAL SCANDAL

Early last weekend, Karl Rove and Scooter Libby could have found slight solace by checking Intrade, the online futures market that correctly called all 50 states in last year's presidential election and settled on Cardinal Ratzinger as the favorite four days before he was elected pope. On Saturday morning, the traders gave Rove and Libby a slightly better than even chance of escaping indictment.

By Sunday morning, it was a different story. The traders put the chances of indictment at 62 percent for Rove and 88 percent for Libby. The sudden change of heart coincided with stories in Sunday's New York Times giving details of the grand jury testimony of its reporter Judith Miller.

She was repeatedly asked about receiving classified information from Libby, a line of questioning that sounded as if the prosecutor, Patrick Fitzgerald, was looking for a violation of the espionage act. If that is the prosecutor's strategy, he may well have a case against Libby and Rove for disclosing classified information.

But why stop with them? A prosecutor could indict just about anyone inside or outside government who deals with defense or foreign-policy information that could harm the U.S. The law could apply to reporters who hear this kind of classified information every day if they "willfully communicate" it to their editors.

"Tripping across classified information is unavoidable," said David Sanger, a White House reporter for The Times. "You can't discuss policy questions without getting to the underlying facts behind the policies, and the crucial facts are often classified."

Fortunately, the law has rarely been enforced, although its use in a few recent cases has journalists worried that it's turning into the American version of the British Official Secrets Act. If it's used against Libby and Rove, the lesson for government officials would be: stop talking to reporters.

The lesson for the public would be: stop appointing special prosecutors. The job can turn a reasonable lawyer into an inquisitor with the zeal of Captain Ahab -- even more zeal, actually, because he'll keep hunting even after he learns there's no whale. He'll settle for anything else he can scare up.

This case, if you can remember that far back, began with accusations that White House officials violated a law protecting undercover agents who could be harmed or killed if their identities were revealed. But it now seems doubtful that there was a violation of that law, much less any danger to the outed agent, Valerie Wilson.

The case originally aroused indignation because the White House appeared to be outing Wilson as part of a campaign to unfairly discredit her husband, Joseph Wilson, who accused the administration of ignoring his 2002 report debunking evidence that Iraq was trying to acquire material for nuclear weapons. But a Senate investigation found that his report not only failed to reach the White House but also failed to debunk the nuclear-material evidence -- in fact, most analysts concluded the report added to the evidence.

So now the original justifications for the investigation have vanished, which is why I think of this as the Nadagate scandal. But the prosecutor has kept at it for two years. Besides switching to the vague law against disclosing classified information, he might indict Libby or Rove for perjury or obstruction of justice -- crimes that occurred only because of the investigation.

Perjury, of course, was the charge that Kenneth Starr accurately pinned on Bill Clinton, but the public didn't buy it. People realized that whatever the affair and the cover-up said about Clinton's character and judgment, the scandal was not a crime.

Unless Fitzgerald comes up with something unexpected, neither is Nadagate. For now, it looks as if the outing of Valerie Wilson was done by officials who didn't think it was illegal and believed they were replying truthfully to a partisan who had smeared them. Hardball politics isn't pretty, but it's not criminal, either.

Maybe we're all misreading Fitzgerald's diligence. One former federal prosecutor now in private practice told me that Fitzgerald might just be protecting himself, investigating every conceivable offense before concluding that whatever corners were cut, there's no reason to indict.

"Fitzgerald is a lot more solid and experienced than Ken Starr," the former prosecutor told me. "He knows that if you investigate any case long enough, you'll end up with a bunch of witnesses you could accuse of perjury and obstruction of justice. But that doesn't mean you indict them. Real crime is what happens before the investigation starts."

In other words, don't assume that it's time to set up the cameras to capture the moment that Joe Wilson has been waiting for---"Karl Rove frog-marched out of the White House in handcuffs."

The libs currently licking their chops, sitting in puddles of drool, all in anticipation of indictments for Rove and Libby, may be very disappointed. They could be misreading Fitzgerald.

As Tierney points out, even if Fitzgerald chooses to indict White House staff because of something that occurred DURING the investigation, "[r]eal crime is what happens before the investigation starts."

That doesn't keep clueless elected Dem officials and libs in the mainstream media from referring to the non-scandal scandal as the outing of CIA agent Valerie Flame, I mean Plame.

KARL ROVE AND SCOOTER LIBBY DID NOT OUT PLAME.

THERE WAS NO WHITE HOUSE CAMPAIGN TO SMEAR JOE WILSON.

Tierney writes, "[A] Senate investigation found that [Wilson's] report not only failed to reach the White House but also failed to debunk the nuclear-material evidence -- in fact, most analysts concluded the report added to the evidence."

So what is this "scandal" about?

Why did Judith Miller choose to go to jail?

Beats me.

Fitzgerald will have to explain.