The Workday Liberal

I remember long long ago when Michael Kinsley used to be the 'liberal' host on CNN's Crossfire. He was often opposed by Pat Buchanan, but Robert Novak was a regular on the right as well. Kinsley was a sort of hero of mine at the time. I thought his arguments were well informed, articulate and generally carried the day. I used to be a regular caller to a nationwide conservative talk show at the time, and remember being very proud when the host began comparing me to Michael Kinsley.

So it is with heavy heart that I must announce my complete disagreement with Kinsley in his take on the prosecution of "Scooter" Libby. Kinsley's point of view may be found at Time.com with an editorial titled: Free Scooter Libby!

To Kinsley, this is a case of the sanctity of the freedom of the press being attacked. Kinsley argues that Scooter should be freed in order to protect the sacred leak (or, in Kensley's opening line,"There is no holier icon in the church of the first Amendment than the anonymous leak" and later he refers to "this sacred object, a leak") but I think he confuses freedom of the press with obstruction of justice. And I do not believe these two terms necessarily conflict when it comes to the holy icon of the anonymous leak.

Scooter Libby is accused of perjury due to the prosecutor being asked to find out who leaked the name of Valery Plame as an undercover officer with the CIA. Kinsley makes the equation between Libby's current travails and the impeachment of Bill Clinton thusly:

Libby is charged with perjury, not with the leak itself. But some might recall that perjury, and not illicit sex, was the charge in the impeachment trial of Bill Clinton a few years ago. And many people—including me—felt that prosecutor Ken Starr had set Clinton up: perjury is not good, but there had been a fundamental unfairness in forcing Clinton to choose between committing perjury and revealing information he should never have been asked for. Libby's case is similar, isn't it?

Thus to Kinsley the worthiness of prosecution for perjury flows from the severity of the original matter being investigated. If the matter should not have been investigated in the first place, or the questioning by the prosecutor strays into areas that ought not be explored, the perjury per-se is not valid, by Kinsley's logic.

I would answer the question posed by Kinsley with a firm no. Libby's case is not similar to Clinton's. The charges in the two cases are similar but the underlying events leading to the investigations are very dissimilar. Libby wasn't lured into a perjury trap over an illicit affair. Libby lied because he was trying to cover up the possibility that he broke the law by exposing an undercover CIA agent. In fact he lied in an attempt to completely deflect attention from the office of the vice president in connection with the entire affair.

Kinsley defeats his own purpose by admitting that the issue being studied by the prosecutor in the first place is justified, even by the reasoning of most journalists when he says:

...a leak of the identity of an undercover officer can be against the law. This is a law that even most journalists think is reasonable. This law cannot be enforced if one of the parties to an illegal conversation is protected by the Fifth Amendment's right against self-incrimination and the other party, as journalists wish, is protected by a reporter's First Amendment immunity from testifying.

Yet Libby did not assert his fifth amendment priveliges when questioned by the prosecutor. If he had he most certainly would not be facing perjury charges. Rather he perjured himself in order to stonewall the investigation. As Prosecutor Fitzgerald famously said when announcing the indictment of Libby, the umpire had sand thrown in his eyes by this obstruction. The underlying issue was obfuscated by Libby's behavior. Who can know what charges would have flowed if the administration had been completely open about it's involvement in the leak? To say that since no charge flowed from the original leak means there was no case in the first place is to ignore the umpire having sand thrown in his eyes, and proclaiming since he did not call an out on the play that nothing really happened.

Kinsley's argument here may better apply to the jailing of Judy Miller. I think there is a better case (but still not entirely valid, which sentiment I will justify if pushed) to be made on her behalf regarding prosecutorial excess. The journalistic protections afforded by the constitution as interpreted by Kinsley, and those who most vociferously advocate freedom of the press, applies to the journalist rather than the leaker. Journalists are the ones protected under the doctrine of the sacred leak. The only protection afforded the leaker is the assurance that the journalist will keep the source secret.

One further matter that argues against Libby is the stated wish by the administration to get to the bottom of the entire affair. The administration proclaimed from the rooftops that the President was for getting to the bottom of the issue, and wanted everything exposed and what not, while his underlings are doing precisely the opposite behind the scenes. You can't have the President proclaim that anyone who leaked would be held accountable, and just expect everything to go away when the Veeps office starts throwing sand in the eyes of the ump. Either the administration was being disingenuous all along, or the bad apples should have been exposed, and Libby's behavior provided cover to these bad apples. My opinion is that the administration was being disingenuous, because it fits the pattern very nicely.