Trial in error
The Washington Post has turned over a lot of real estate on its opinion page to let Victoria Toensing make the case that Patrick Fitzgerald has overlooked a few guilty parties in the course of his media-inspired leak investigation. Ms. Toensing convenes an imaginary grand jury to charge out her "own personal bill of indictment," beginning with Fitzgerald himself:
THIS GRAND JURY CHARGES PATRICK J. FITZERALD with ignoring the fact that there was no basis for a criminal investigation from the day he was appointed, with handling some witnesses with kid gloves and banging on others with a mallet, with engaging in past contretemps with certain individuals that might have influenced his pursuit of their liberty, and with misleading the public in a news conference because . . . well, just because. To wit:The Washington Post published a transcript of Fitzgerald's press conference announcing the indictment in October 2005. It is difficult to square the implication of Fitzgerald's comments at the press conference that Libby was guilty of misconduct in blowing Valerie Plame's "classified" agency status with the fact that the disclosure of her relationship to the agency was apparently not illegal.· On Dec. 30, 2003, the day Fitzgerald was appointed special counsel, he should have known (all he had to do was ask the CIA) that Plame was not covert, knowledge that should have stopped the investigation right there. The law prohibiting disclosure of a covert agent's identity requires that the person have a foreign assignment at the time or have had one within five years of the disclosure, that the government be taking affirmative steps to conceal the government relationship, and for the discloser to have actual knowledge of the covert status.
From FBI interviews conducted after Oct. 1, 2003, Fitzgerald also knew that then-Deputy Secretary of State Richard L. Armitage had identified Plame as a CIA officer to columnist Robert D. Novak, who first published Plame's name on July 14, 2003.
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· In violating prosecutorial ethics by discussing facts outside the indictment during his Oct. 28, 2005, news conference, Fitzgerald made one factual assertion that turned out to be flat wrong: Libby was not "the first official" to reveal Plame's identity.
Ms. Toensing also indicts the press (including the Washington Post) for its role in inspiring Fitzgerald's investigation:
THIS GRAND JURY CHARGES THE MEDIA with hypocrisy in asserting that criminal law was applicable to this "leak" and with misreporting facts to wage a political attack on an increasingly unpopular White House. To wit:All the defendants charged by Ms. Toensing have earned their role in the dock, but the Post deserves to have its punishment mitigated upon conviction for publishing this excellent column.· Notwithstanding the fact that major newspapers have highfalutin', well-paid in-house and outside counsel who can find the disclosure law and even interpret it, the following publications called for a criminal investigation:
· The Atlanta Journal-Constitution called the appointment of a special independent counsel "absolutely necessary" because the allegations "come perilously close to treason" -- even though treason is a constitutional crime requiring two witnesses and the levying of war against the United States.
· The Boston Globe wrote: "This is a case that clearly calls for the appointment of an independent counsel."
· The New York Times naively approved the investigation if it "focused on the White House, not on journalists." It later applauded Fitzgerald's appointment, declaring that he must be allowed "to use the full powers of a special counsel."
· The Washington Post refrained from expressing shock at a "leak." But The Post had contributed to the fray by reporting on Sept. 28, 2003, that "two White House officials called at least six Washington journalists and disclosed the identity and occupation of Wilson's wife . . . to undercut Wilson's credibility." This article was the likely impetus for the other papers' editorials.
Participants in the Forum are discussing Toensing's column here.
