The case of Patrick Fitzgerald

After the media firestorm over Joseph Wilson and Valerie Plame, then-Deputy Attorney General James Comey appointed Patrick Fitzgerald to serve as independent counsel. Fitzgerald was to ascertain who had identified Plame to Robert Novak as a CIA agent and whether a crime had been committed in the process. The chain of events having been initiated by Wilson’s New York Times op-ed column, the Times itself served as the ringmaster of the media circus. Judging by the circus, the fate of the republic seemed to hang in the balance.

Fitzgerald’s prosecution of Libby dates back to 2005. The details have already receded into the mists of ancient history. Arthur Herman provides a useful summary in his National Review column on Judith Miller’s new book The Story: A Reporter’s Journey. Herman writes:

The Plame case has been shrouded in a fog of media-generated myth for almost a decade. The myth maintains that [Vice President] Cheney and [Cheney chief of staff Lewis “Scooter”] Libby deliberately set out to blow the cover of CIA employee Valerie Plame in retaliation for an explosive op-ed that her diplomat husband, Joseph Wilson, published in the New York Times in July 2003. In that op-ed, Wilson contradicted the Bush administration’s assertion that Saddam Hussein had been trying to obtain yellowcake uranium in Niger in order to build an atomic bomb. The leak of Plame’s identity to columnist Robert Novak — so goes the story — led special prosecutor Fitzgerald on a two-year investigation to find the culprit, culminating in the trial and conviction of Libby for perjury and obstruction of justice.

We now know — and not just from Miller’s book — that virtually every element of that story is false.

Even though he had no factual basis to do so, Fitzgerald sought to make a case against Cheney. Miller was his chosen means, through the prosecution of Libby based on testimony that Miller believes she now gave falsely (if unintentionally) as a result of information withheld from her and the defense by Fitzgerald. Miller only came to the realization that she had testified falsely while reading Valerie Plame’s memoir, which helped explain to Miller an ambiguous parenthetical reference Miller had made to Plame’s possible employment in notes she had taken on a conversation with Libby.

The Wall Street Journal has posted a meticulous and detailed exploration of Miller’s revelations by Peter Berkowitz. The detailed version of Berkowitz’s column is “The false evidence against Scooter Libby” (the Journal has also posted the less detailed published version).

Miller’s revelations should be a source of profound shame to the actors in this drama, especially including Fitzgerald. They constitute a scandal in which names should be taken and responsibility assessed. Berkowitz concludes his detailed account in this fashion:

At a news conference on Oct. 28, 2005, the day the grand jury returned a five-count indictment, Mr. Fitzgerald accused Mr. Libby of obstructing justice, which he likened to when “the umpire gets sand thrown his eyes.” The allegations against Mr. Libby were grave, argued Mr. Fitzgerald, because “the truth is the engine of our judicial system. And if you compromise the truth, the whole process is lost.” In closing arguments on Feb. 20, 2007, Mr. Fitzgerald repeated the “sand” accusation and proclaimed that as a result, Mr. Libby “stole the truth from the judicial system.” At Mr. Libby’s June 5, 2007, sentencing hearing, Mr. Fitzgerald urged Judge Walton to impose a stiff punishment “to make a clear statement that truth matters, and that truth matters above all else in the judicial system.”

Special Counsel Fitzgerald’s brazen inversion could hardly have been more complete. It was Patrick J. Fitzgerald, serving as an officer of the Justice Department and backed by vast federal power, who threw sand in the eyes of Judith Miller and the other prosecution witnesses, in the eyes of the American people and in the apparatus of the American legal system. Mr. Fitzgerald appears to have placed the quest for a conviction above the search for the truth and the pursuit of justice.

Where are they now? Fitzgerald is a member of the American Academy of Trial Lawyers now serving as a partner in the Chicago office of Skadden Arps. James Comey is now Director of the FBI. Wilson serves as a guest speaker and panelist in conferences and other programs devoted to African business policies and political affairs, as well as on matters pertaining to “the CIA leak scandal.” Plame is at work on a series of spy novels with mystery writer Sarah Lovett. Plame and Lovett published the first book in the series — Blowback — in October 2013 under a Penguin imprint. They followed up in 2014 with Burned.

The authorized version of the story was told in the 2010 Hollywood film made of Plame’s memoir Fair Game, the book that prompted Miller’s realization that she had testified falsely against Libby. Naomi Watts played Plame; Sean Penn played Wilson. A.O Scott’s New York Times review of the film found it a graceful and subtle portrayal of a marriage under stress. Judith Miller provided a more sapient assessment in the Wall Street Journal.

The Wall Street Journal now editorially refers to this affair as “The Libby injustice.” Lewis Libby seeks the restoration of his reputation.

What about the New York Times? Miller was a New York Times reporter at the time this episode played out. The Times published Wilson’s 2003 op-ed column on his trip to Niger. The Times was foremost among those decrying Plame’s alleged “outing.” I wrote at some length about the role of the Times in the post “In which the Times plays with matches.” Where is the Times now?

The New York Times serves as captain of the Obama administration’s mainstream media cheerleading squad. The review of Miller’s book published here by the Times this week omits any mention of Miller’s recantation of her false testimony against Libby.

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