The Cost of Libby
I. Lewis "Scooter" Libby is a man we've known personally since the 1980s. We first met him in Europe, when he was representing the commodities trader Marc Rich. We came to admire him then for his intelligence, his legal skills, his integrity, and his ability to see larger issues in a complex case. It didn't surprise us a bit when, as the years rolled by, Libby was given great responsibilities in an administration whose principles we share.
Over the years, though we rarely saw him, we came to think of him as a friend, one with a particularly fine spirit full of patriotism, humor, and ideals. We still think of him that way, even recognizing that the crimes of perjury and obstruction of justice, of which he was found guilty yesterday by a federal jury in Washington, are extremely serious. It is always hard to second guess a jury, but, insofar as one can follow a case like this from a distance, we would have found him not guilty.
It is not hard to say, however, that the conviction of Libby is one of those decisions of which the cost will be enormous – and will be evident only as the years roll on. They begin with the personal price Libby and his family have already paid and will pay some more, whether or not he spends time in prison. The decision will also cost the American public at least some of the kind of information it has, at least since the days of Watergate, taken for granted from the press.
Government officials will be deterred now from speaking to reporters, fearing that those reporters will testify, as Timothy Russert, Matthew Cooper, and Judith Miller did, under pressure from prosecutors. We cast no aspersions on the integrity of the reporters for doing what they saw as their duty. But what will future sources make of the fact that major journalists testified for the prosecution against their own source in a highly political case?
Another cost will be the prospect of fewer high quality public servants. Those offered posts in government will, before accepting a position, have to weigh the risk that they will be turned into criminals for carrying out routine tasks such as talking to reporters for the purpose of defending their president's policies. And the press – one of the biggest losers in this case – will suffer for years from the spectacle that was laid before the public during the trial of Scooter Libby.
But the Libby case may have some benefits, as well. It may give pause to a future president who gets tempted to name a special counsel. It teaches that such a move may temporarily quell a burgeoning scandal and appease political enemies, but the chain of events it sets up has a way of hampering a presidency. Not only Libby's fate but also that of Kenneth Starr's many targets attest to that.
A Libby appeal might produce a Supreme Court ruling striking down the very institution of a special counsel that, in this case, managed not to charge anyone for the underlying "crime" of leaking Valerie Plame Wilson's name to the press, but brought in an indictment that targeted someone more closely aligned with the president's policy than was the leaker, Richard Armitage. It is an institution that, because it is staffed by executive branch personnel but is not subject to executive oversight, stands apart from the normal constitutional framework.
President Bush's failure to halt the prosecution of Libby has costs to the presidency itself. The president delivered one of his most moving and persuasive war speeches yet yesterday to the American Legion, but it won't make many headlines today, because the focus will be on the Libby convictions. Appointing a special counsel was supposed to have made this distraction go away, but the effect instead has been to aggravate the situation. The president's best move would be to exercise his absolute and unfettered bedrock constitutional prerogative of a pardon.
