The most astonishing thing in Patrick Fitzgerald’s latest filing in his case against I. Lewis “Scooter” Libby is not his disclosure that Mr. Libby told a grand jury that it was President Bush himself who authorized the publication of the government’s heretofore secret belief that Saddam Hussein was seeking to acquire uranium, though that was plenty astonishing. It was first reported early in the morning yesterday in a dispatch on the online edition of the Sun by our Joshua Gerstein. The eruption of interest on the World Wide Web was so great that it engulfed our newly upgraded server and shut www.nysun.com for much of the day. The surge of interest no doubt stemmed from the prospect that Mr. Bush himself might be implicated in wrongdoing, but what is really astonishing is what Mr. Fitzgerald’s disclosures suggest about his conception as to who is the government.

The charges handed up against Mr. Libby were for perjury, obstruction of justice and making false statements, though the investigation was launched into possible violations of the law for disclosing the identity of Valerie Plame, the CIA official who had sent her husband, Joseph Wilson, on a government mission to Niger from which he returned to launch an attack on the Bush administration’s case for war in Iraq. When Mr. Libby was indicted and resigned from his position, he began seeking the evidence to which the Constitution of the United States, in the due process clause, entitles him. He filed a motion about the scope of discovery, the kind of legal document to which little drama ordinarily attaches.

Mr. Fitzgerald’s response to Mr. Libby’s motion was nothing short of jaw-dropping in the brazenness with which it assaults logic and constitutional norms. Mr. Fitzgerald asked Judge Reggie Walton to deny Mr. Libby’s access to information about the Wilson mission because, the special prosecutor writes in the motion, “it is premised on relevance arguments which overlook the fact that defendant is charged with perjury, not a conspiracy to commit various other crimes.” Mr. Fitzgerald claims the documents Mr. Libby is asking for go “far beyond the scope of what is relevant to the charges contained in the indictment.”

That response is breathtakingly arrogant for a prosecutor who has pointedly not limited his charges to the indictment. Mr. Fitzgerald, after all, held an extraordinary 66-minute press conference in which, as Mr. Libby’s lawyers note, the special prosecutor repeatedly said the case involved “compromising national security information.” He said, “the damage wasn’t to one person. It wasn’t just Valerie Wilson. It was done to all of us.” He addressed the risk that compromising the identity of CIA employees could discourage potential recruits “at a time when we need more human intelligence.”

The special prosecutor is trying, in other words, to have it both ways. When it suits his interests to pump up his importance and explain why he’d prosecute a White House official or throw a journalist in jail, he cites national security and Valerie Wilson. When the prosecutor wants to limit Mr. Libby’s access to the documents he needs to defend himself, Mr. Fitzgerald all of a sudden magically turns the matter into a run-of-the-mill perjury case.

The prosecutor also contradicts himself on whether the case relates to the war. “This indictment is not about the war,” the prosecutor said in his press conference on October 28. What a contrast with the court papers filed by Mr. Fitzgerald on Wednesday, which claim, “The evidence will show that the July 6, 2003, Op Ed by Mr. Wilson was viewed in the Office of Vice President as a direct attack on the credibility of the Vice President (and the President) on a matter of signal importance: the rationale for the war in Iraq. Defendant undertook vigorous efforts to rebut this attack during the week following July 7, 2003.”

Why this – vigorously defending the president on the rationale for the war – should be a crime is good question in itself and says much about how far Mr. Fitzgerald has traveled down the road of criminalizing policy differences. Just as strange is Mr. Fitzgerald’s claim that “neither the OVP, the White House Office, the NSC, nor the State Department are aligned with the prosecution, and documents in the physical possession of those entities are not within the government’s possession, custody or control.” Here is underscored the unconstitutional flaw with the office of the special prosecutor.

Mr. Fitzgerald declares himself “the government” and claims he is not aligned with the White House, so much so that he claims that documents held by the State Department and the White House “are not within the government’s possession.” Here the illogic of the special prosecutor is laid bare. While Democrats are complaining that Mr. Bush is arrogating power to himself by declassifying information, the person declaring himself the state is Mr. Fitzgerald. He is proceeding on the basis that the White House is not the government. The State Department is not the government. Perhaps to underscore this, the brief misspells Secretary Rice’s name. President Bush himself, who Mr. Libby apparently told a grand jury authorized him, through the vice president, to speak to reporters in defense of the war, is not the government. Only Patrick Fitzgerald is the government, in the strange legal world of the special prosecutor.