With Indictments Expected in Plame-Gate,
The Culture of Scandal Returns to Washington -But We May Pay a Price in the Downfall of A Good Man

By EDWARD LAZARUS

Thursday, Oct. 27, 2005

After a hiatus of a few years, Washington's culture of scandal is back with a vengeance. Liberals are gleefully rubbing their hands in anticipation that either Karl Rove, Scooter Libby, or both will be indicted by prosecutor Patrick Fitzgerald in connection with Plame-gate. In these liberals' fondest dreams, Dick Cheney is next.

Despite an extreme dislike for this Administration, I'm still finding it very hard to take pleasure in current events.

Sure, in some quarters the chickens are coming home to roost. Karl Rove is paying the price for a lifetime of dirty-trickster-ism, just as Tom DeLay is suffering the boomerang of a career built on vicious partisanship. And who knows how many conservatives hypocrites - like Ralph Reed, the evangelical who seems to have enriched himself to clear the decks for Indian gaming -- will get dragged down by their connections with indicted lobbyist Jack Abramoff's pay-to-play scheming?

With luck, the current spate of investigations and prosecutions will prove salutary for American politics. While greed and sleaze and partisan excess are not strangers to our civic history, they have rarely flourished more openly -- and some meaningful correction is as welcome as it was overdue.

But that said, there is dreary predictability to the unfolding Plame-gate scandal - and a predictable price to be paid for it. Our institutions are buckling under the desperate divisions in our body politic and one has to wonder when, instead of bending, they might someday break.

Caricaturing Politics, and People, Is a Dangerous Tactic As Well As An Inhumane One

For those who oppose the Iraq war, Plame-gate has become the principal vehicle for demonizing those within the Administration who pushed for the invasion, and sold it to the American people.

The black-and-white story here - according to many liberal critics of the war -- is that Scooter and Rummy and the neo-con crowd knew from the start that there weren't any WMD in Iraq. But they needed the scare tactic of WMD to sell their messianic vision of toppling Saddam and reshaping the Middle East. So they lied to the public about WMD and viciously smeared anyone who crossed them, including Plame's husband, Joe Wilson, who had the temerity to say the Administration's purported proof of WMD - in particular, the touted "Niger uranium" -- was bunk.

This story is an effective political tool. But is it entirely accurate as told? And were all the participants as nefarious as this story suggests?

I don't think so. And ironically, one man who, speculation suggests, may be indicted, seems one of the most likely to defy this story. Lewis "Scooter" Libby is a policy wonk with a successful law practice -- not a political operative. People like Libby don't go into government to trick, or deceive, or score partisan political points. They enter public service because they actually think they have ideas about advancing the public interest, and they enjoy the prospect of wielding the power to implement those ideas. Simple as that.

In Scooter's case, the ideas had to do with strengthening American foreign policy and making the country safer. And, to me, any plausible Plame-gate story has to start from this understanding.

What the Real Plame-Gate Story May Well Have Been

As has been exhaustively documented, a whole lot of folks for quite a long time, including President Clinton, thought Saddam had WMD and posed a real and serious threat to this country. So the idea that the claims of WMD were entirely an intentionally concocted, knowingly false cover story, simply won't wash.

The neocons (like Scooter), especially, thought the WMD existed, and were a real threat. And more generally, they believed that the Clinton Administration had rendered this country extremely vulnerable to terrorists and rogue regimes like Saddam's, by failing to react aggressively to previous terrorist attacks abroad.

Against this background, isn't it more plausible that, instead of lying about WMD they never thought existed, folks like Scooter simply gave too much credence to weak evidence supporting their strongly held assumptions - and, at the same time, discounted cautionary voices from sources like the CIA that had proven unreliable and equivocal in the past?

Furthermore, isn't it more plausible that, given the vicious nature of Saddam's regime and its inherent dangerousness, folks like Scooter felt well-justified in resolving doubts about WMD against Saddam and in favor of taking out his regime?

And with respect to the attempts to undermine Joe Wilson once he sought publicly to discredit administration policy, isn't it fairly unremarkable to postulate that White House insiders genuinely believing in the wisdom of their policy, and thinking Wilson to be wrong (and self-aggrandizing), opted to conduct a whisper campaign against him? I seem to remember the Clintonites doing this too.

No Excuse for Crime, But An Urgent Need for An Accurate Story

Of course, none of this would excuse Scooter, or anyone else, if he violated the federal law against disclosing the identity of a covert agent, or lied to the grand jury, or obstructed justice. (Nor does it excuse the mistaken policy, or the deceptive practices used to support it, such as the insistence, despite a paucity of evidence, that Saddam was linked to 9/11).

My point is simply that the story behind Plame-gate is likely much more nuanced and complicated than the self-righteous, they're-just-a-bunch-of-lying-felons morality tale liberals are spinning for themselves. And knowing the true story is essential, if we want to proceed on the facts, and not on a number of warring political fictions.

In contemporary politics, liberals think conservatives are destroying the country with evil hearts through evil means, while conservatives think liberals would destroy the country through decrepit thinking and weak-kneed policies. Doubt does not flourish in this toxic environment; nor does an attention to those facts that might not support one's passionate political position.

The group in power defends its policies by most every available means, while the group out of power demonizes its opponents, bides its time, and looks for a chance to pounce.

And so it is that people who enter public service with good intentions end up doing wrong, perhaps even criminal wrong. If Libby did do wrong, it wasn't because he started with that intention; it was because, during government service, immersion in the trench warfare of Washington meant that he turned into a different, and lesser, person than he had been.

The next steps in the scandal tango are now ongoing -- namely, the attempts to minimize the crimes the targets may have been committed and to question the judgment of the prosecutor investigating them.

In this regard, the hypocrisy of Administration supporters appears to know no bounds. It must be awfully tough for those who once sought Clinton's impeachment for lying about sex in a civil suit deposition, to keep a straight face when arguing that Fitzgerald should decline to charge obstruction of justice or perjury in connection with a grand jury investigation of a felony related to national security. Yet somehow, they manage.

Criticism of Special Prosecutor Fitzgerald May Premature or In Error

What's wrong with the suggestion that if an underlying offense cannot be proven, then the related offenses - lies and cover-ups - should not the basis for an indictment?

For one thing, it goes directly against Department of Justice policy - and Special Counsel Fitzgerald is still within the Department of Justice.

The Department of Justice's written policy specifically mandates that federal prosecutors charge the most serious readily provable offense.

What are this rule's advantages? One is, obviously, that prosecutors will tend to win - not lose - in court by concentrating on what is "readily provable." Resources, thus, are saved.

Does the rule make sense on the Special Counsel level? Absolutely.

In the past, by comparison, Independent Counsel investigations have led to acquittals (Mike Espy), or misdemeanor pleas (Henry Cisneros). Surely, the lack of "readily provable" facts - or of the ability to charge any serious offense -- played a role.

And if "readily provable" had been a benchmark in Kenneth Starr's mind, wouldn't he have given up on the Whitewater investigation - which came to nothing - early on?

Another advantage of the rule - and an important one - is to try to eliminate favoritism. The assessment of what is "readily provable" is a reasonably objective and non-political one, for most career prosecutors. Certainly, it's much more non-political than the bare question, "What charge should we throw at this person?"

We don't want charging decisions to vary overmuch from one prosecutor to another - that's unfair, if the mere luck of draw determines the indictment one faces. And, by and large, we don't want political considerations to influence charging decisions. Having a clear rule such as, charge the most serious readily-provable offense, is thus wise.

At bottom, what we do want is for the provable facts, as developed through investigation, to determine what crimes are charged. Hence the rule that prosecutors must charge the most serious readily provable offense.

In some cases, this mandated evaluation of the admissible evidence available to the prosecutor may result in the anomaly that a prosecutor will pursue an obstruction-type charge rather than charging the crime which prompted the initial investigation. (The Martha Stewart case is an example).

That's not ideal - one would hope the core crime could be prosecuted. But it is realistic. And the alternative to the DOJ policy is much worse: It would give prosecutors discretion simply to ignore system-corrupting felonies due to a failure of proof on the underlying offence. That makes no sense, and vesting such discretion in prosecutors would open the door to all kinds of discrepancies in how they deal with the subjects of federal criminal investigations. Especially at the Special Counsel level, this discretion could be exercised in a political way.

Fitzgerald is one of the nation's best career law enforcement officials. Odds are, he's taken this policy to heart in framing these indictments. Thus, the critics who suggest that if he can't charge the core crime, he shouldn't indict at all, are not only jumping the gun in assessing his actions, they are promoting a potentially dangerous policy - one that is contrary to the policy of the DOJ to which Fitzgerald (as a Special Counsel, not an Independent Counsel) belongs.

But, unfortunately, the skewing of ideas and institutions to further short term political interests seems to be the order of the day.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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