The Corner

What Smear?

Some observations from the wrenching experience of watching TV last night and witnessing people I admire – people who were on the right side of the Clinton wars and have heretofore been strong rule-of-law conservatives – engage in what is a startling defense of the conduct alleged against Scooter Libby.

The claim that Libby is being smeared with the allegation that he leaked classified information even though he hasn’t been charged with it, and that because he has not been charged he has no way to get his good name back from the said smearing, is specious.

This is not a case where a person has not been charged with any crimes at all, where the government doesn’t have the nerve to put its money where its mouth is, or where the government itself is leaking out damaging innuendo. The government has not filed a bare-bones indictment, as it could legally have done. Instead, the special prosecutor has given Libby elaborate notice, extensively describing his alleged conduct. We are not at a loss here to make our own judgments about what the conduct means if it is proved.

Like it or not, the mere fact that Plame was employed by CIA is alleged to have been classified. Libby is alleged to have learned this fact in his official capacity. He is alleged to have told it to Judith Miller of the New York Times, a person not entitled to receive classified information (and to have implicitly confirmed it for Matthew Cooper of Time, another person not entitled to receive it). Here on Planet Earth, this is known as leaking classified information.

For the reasons I discussed yesterday, this potentially makes out a violation of the espionage act. However, the supposedly intemperate, smearing prosecutor, Pat Fitzgerald, gave Libby the benefit of the doubt on his mental state (and for policy reasons pertaining to overzealous enforcement of the espionage act). He exercised discretion not to charge the leaking as a separate crime.

The leaking is, nonetheless, essential to proving the crimes that actually are charged – obstruction, false statements to investigators, and perjury. If, as his apologists claim, Libby has been done an injustice on this point, it will be very easy for him to get his good name back. All Libby has to do is demonstrate at trial that either one of two things is not true: (a) that Plame’s employment with CIA was classified information; or (b) that Libby disclosed that information to a person not entitled to receive it.

Anyone think he will even try? Anyone think the people who are making the smear claim will try to take on either of these two very simple, straightforward allegations?

Look, if you want to say Libby is not guilty of a leaking crime because he did not have the required mental state, that’s a fair argument. But let’s face it honestly: he is a smart guy and a high public official who appears to have performed all the acts one has to perform to commit a leaking crime. To contend that he is being smeared is absurd.

And Fitzgerald plainly cut him a break by not charging him with the espionage act. Maybe Libby could have beaten such a charge. But maybe not. Do the people making this smear argument really want to live in a country where a prosecutor charges every conceivable crime that may have been committed? And for no better reason than to rebut a red herring of a talking point?

If convicted, Libby’s already looking at 30 years’ exposure under the statutes that have been charged (although much less under the sentencing guidelines). Would his sympathizers actually prefer to see him facing 40 years, with 10 tacked on for the leaks?

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