The wreck of the runaway trian named Fitzgerald

Richard Cohen:

The attorney general called a meeting. He assembled all the U.S. attorneys in the Great Hall of the Justice Department and told them, in essence, that their chief responsibility was to decide whom not to prosecute. They should limit themselves to cases "in which the offense is the most flagrant, the public harm the greatest" and play no role in political vendettas. The speaker, of course, was not the lamentable Alberto Gonzales but the estimable Robert H. Jackson, who went on to the Supreme Court. This was 1940, but Jackson could have been talking to Patrick J. Fitzgerald. Whatever the case, the special counsel was not listening.

With the sentencing of I. Lewis "Scooter" Libby, Fitzgerald has apparently finished his work, which was, not to put too fine a point on it, to make a mountain out of a molehill. At the urging of the liberal press (especially the New York Times), he was appointed to look into a run-of-the-mill leak and wound up prosecuting not the leaker -- Richard Armitage of the State Department -- but Libby, convicted in the end of lying. This is not an entirely trivial matter since government officials should not lie to grand juries, but neither should they be called to account for practicing the dark art of politics. As with sex or real estate, it is often best to keep the lights off.

The upshot was a train wreck -- mile after mile of shame, infamy, embarrassment and occasional farce, all of it described in the forthcoming "Off the Record," a vigorously written account of what went wrong, by Norman Pearlstine, Time Inc.'s former editor in chief. The special counsel used the immense power of the government to jail Judith Miller and to compel other journalists, including Time's Matt Cooper, to suspend their various and sacred vows of silence just so they could, understandably, avoid jail. The press held itself up to mockery, wantonly promising confidentiality, anonymity -- what's the diff, anyway? -- and virtual life after death to anyone with a piece of gossip to peddle. Much heroic braying turned into cries for mercy as the government bore down. As any prosecutor knows -- and Martha Stewart can attest -- white-collar types tend to have a morbid fear of jail.

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I don't expect George Bush to appreciate this. He is the privileged son of a privileged son, and he fears nothing except, probably, doubt. But the rest of us ought to consider what Fitzgerald has wrought and whether we are better off for his efforts. I have come to hate the war and I cannot approve of lying under oath -- not by Scooter, not by Bill Clinton, not by anybody. But the underlying crime is absent, the sentence is excessive and the investigation should not have been conducted in the first place. This is a mess. Should Libby be pardoned? Maybe. Should his sentence be commuted? Definitely.

I would also criticize Judge Walton who should have dismissed this travesty. For a lie to be prosecutable it must be material. Since Fitzgerald already knew who the leaker was and knew that it was not Libby, then a different recollection of a conversation is hardly a material misstatement of fact that made his task more difficult, since there was nothing really to investigate at this point anyway. I think his failure to dismiss was a fatal error and he should be reversed on appeal.