Should Republicans go ahead and add Supreme Court Justices to head off Democrats

The case for a Libby pardon

NY Sun:

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So Mr. Libby's indictment sent us scrambling back to our copy of Justice Ginsburg's concurring opinion in the 1996 Supreme Court case Brogan v. United States, in which she warned of "the sweeping generality" of Section 1001's language. She wrote, "The prospect remains that an overzealous prosecutor or investigator - aware that a person has committed some suspicious acts, but unable to make a criminal case - will create a crime by surprising the suspect, asking about those acts, and receiving a false denial." She wrote, "the Department of Justice has long noted its reluctance to approve S1001 indictments for simple false denials made to investigators."

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Now, perjury is a serious crime, but we don't discount for a moment the possibility - we'd even say likelihood - that Mr. Libby was telling the truth. Or that he was misremembering, telling an inaccurate story that he didn't know was false. American jurisprudence requires us to presume him innocent. But it is also possible that Mr. Libby subordinated his own Fifth Amendment rights to his duty to obey the president's instructions "to totally cooperate." In any event, it takes a Washington Democrat to be hypocritical enough to be voting against Mr. Bush's judicial nominees for the sin of being insufficiently like Justice Ginsburg, while at the same time rushing to hail a federal prosecutor for bringing charges against a White House aide under a statute that Ms. Ginsburg criticized for its "sweeping generality."

This prosecution, in any event, is an assault on the presidency. If Ms. Plame didn't want her identity out, she shouldn't have gotten her husband a secret mission and then allowed him to wage a public campaign against the president's foreign policy. The leading prevaricator in this case is Mr. Wilson himself. He has accused Mr. Bush of falsely leading America to war. Mr. Bush had claimed "The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa." Mr. Wilson drank tea in Niger for a week and said that Mr. Bush's claim was not true. But even after Mr. Wilson's objection, the July 2004 report by the British government's Butler Commission found that Mr. Bush's comment was "well-founded." In a July 2004 report by the Senate Select Committee on Intelligence, Senators Roberts, Hatch, and Bond said of Mr. Wilson, "The former Ambassador, either by design or through ignorance, gave the American people and, for that matter, the world a version of events that was inaccurate, unsubstantiated, and misleading."

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