The Lost Scandal in Libby's Trial

A Washington journalist on the Scooter Libby jury, Denis Collins, described sentiments in the jury room reflecting those in the Senate Democratic cloakroom: "It was said a number of times. … Where's Rove? Where are these other guys?" Besides presidential adviser Karl Rove, he surely meant Vice President Cheney and maybe President Bush. Oddly, the jurors appeared uninterested in hearing from Richard Armitage, the source of the CIA leak.

"It's about time," the senate majority leader, Harry Reid, said, rejoicing in guilty verdicts against Scooter Libby, "someone in the Bush administration has been held accountable for the campaign to manipulate intelligence and discredit war critics." But Libby was found guilty only of lying about how he learned Valerie Plame's identity. Mr. Reid and Democratic colleagues were after much bigger game than Mr. Cheney's chief of staff.

Democrats had been slow in reacting to my column of July 14, 2003, that reported former diplomat Joseph Wilson's mission to Niger was suggested by his CIA employee wife, Valerie Plame. By September, when the Justice Department began investigating the CIA leak, Democrats smelled another Iran-Contra or Watergate. They were wrong.

The Libby trial uncovered no plot hatched in the White House. The worst news Tuesday for firebrand Democrats was that Special Counsel Patrick Fitzgerald was going back to his "day job" as U.S. attorney in Chicago. With no underlying crime even claimed, the only question was whether Libby had consciously and purposefully lied to FBI agents and the grand jury about how he learned of Mrs. Wilson's identity.

While my column on Mr. Wilson's mission triggered Libby's misery, I played but a minor role in his trial. Subpoenaed by his defense team, I testified that I had phoned him in reporting the Wilson column and that he had said nothing about Mr. Wilson's wife. Other journalists said the same thing under oath, but we apparently made no impression on the jury.

The trial provided no information whatever about Valerie Plame's status at the CIA at the time I revealed her role in her husband's mission. No hard evidence was produced that Libby ever was told she was undercover. Mr. Fitzgerald had argued that whether or not she was covert was not material to this trial, and Federal District Judge Reggie Walton had so ruled. Yet, in his closing arguments, Mr. Fitzgerald referred to Mrs. Wilson's secret status, and in answer to a reporter's question after the verdict, he said she was "classified."

In fact, her being classified — that is, that her work was a government secret — did not in itself meet the standard required for prosecution of the leaker, the former deputy secretary of State, Mr. Armitage, under the Intelligence Identities Protection Act of 1982. That statute limits prosecution to exposers of covert intelligence activities overseas, whose revelation would undermine American intelligence. That is why Mr. Fitzgerald did not move against Mr. Armitage.

Some questions asked me in television and radio interviews after the verdict implied that I revealed Mr. Armitage's name to Mr. Fitzgerald. Actually, in my first interview with Mr. Fitzgerald after he had been named special prosecutor, he indicated he knew Mr. Armitage was my leaker. I assumed that was the product of detective work by the FBI. In fact, Mr. Armitage had turned himself in to the Justice Department three months before Mr. Fitzgerald entered the case, without notifying the White House or releasing me from my requirement of confidentiality.

On Fox's "Hannity & Colmes" Tuesday night, superlawyer David Boies said Mr. Fitzgerald never should have prosecuted Libby because there was no underlying criminal violation. Mr. Boies scoffed at Mr. Fitzgerald's contention that Libby had obstructed him from exposing criminal activity. Mr. Boies, who represented Al Gore in the 2000 election dispute, is hardly a Bush sympathizer. But neither is he a Democratic partisan trying to milk this obscure scandal.

Mr. Bush lost control of this issue when he permitted a special prosecutor to make decisions that, unlike going after a drug dealer or mafia kingpin, turned out to be inherently political. It would have taken courage for the president to have aborted this process. It would require even more courage for him to pardon Scooter Libby now, not while he is walking out of the White House in January 2009.