What do I. Lewis Libby, the White House aide who was indicted on Friday in a case involving the leak of a CIA officer's identity, and Martha Stewart, the lifestyle guru specializing in pies and pillows, have in common? Both were charged under a federal statute that is dangerously broad. There's a popular misconception that Stewart was involved in insider trading and that Mr. Libby was involved in leaking the name of Valerie Plame. But neither Mr. Libby nor Stewart were charged with those underlying crimes. The federal criminal charges in both cases were brought at least partly under Title 18, Section 1001 of the United States Code. That provides for a fine or up to five years in prison for anyone who "knowingly and willfully" makes any materially false statement or representation "in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States."
So Mr. Libby's indictment sent us scrambling back to our copy of Justice Ginsburg's concurring opinion in the 1996 Supreme Court case Brogan v. United States, in which she warned of "the sweeping generality" of Section 1001's language. She wrote, "The prospect remains that an overzealous prosecutor or investigator - aware that a person has committed some suspicious acts, but unable to make a criminal case - will create a crime by surprising the suspect, asking about those acts, and receiving a false denial." She wrote, "the Department of Justice has long noted its reluctance to approve S1001 indictments for simple false denials made to investigators."
Yet that is, it appears to us, the essence of what is charged in the indictment of Mr. Libby. Mr. Libby had been put in that bind by his own president, who, having sworn to protect and defend the Constitution, contravened it by insisting that, in the face of a special prosecutor, his aides spurn one of its most famous protections. The Constitution has a provision - part of the Fifth Amendment - that says no person "shall be compelled in any criminal case to be a witness against himself." Yet President Bush said, as he did on January 1,2004,"I've told the members of the White House to totally cooperate."
Now, perjury is a serious crime, but we don't discount for a moment the possibility - we'd even say likelihood - that Mr. Libby was telling the truth. Or that he was misremembering, telling an inaccurate story that he didn't know was false. American jurisprudence requires us to presume him innocent. But it is also possible that Mr. Libby subordinated his own Fifth Amendment rights to his duty to obey the president's instructions "to totally cooperate." In any event, it takes a Washington Democrat to be hypocritical enough to be voting against Mr. Bush's judicial nominees for the sin of being insufficiently like Justice Ginsburg, while at the same time rushing to hail a federal prosecutor for bringing charges against a White House aide under a statute that Ms. Ginsburg criticized for its "sweeping generality."
This prosecution, in any event, is an assault on the presidency. If Ms. Plame didn't want her identity out, she shouldn't have gotten her husband a secret mission and then allowed him to wage a public campaign against the president's foreign policy. The leading prevaricator in this case is Mr. Wilson himself. He has accused Mr. Bush of falsely leading America to war. Mr. Bush had claimed "The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa." Mr. Wilson drank tea in Niger for a week and said that Mr. Bush's claim was not true. But even after Mr. Wilson's objection, the July 2004 report by the British government's Butler Commission found that Mr. Bush's comment was "well-founded." In a July 2004 report by the Senate Select Committee on Intelligence, Senators Roberts, Hatch, and Bond said of Mr. Wilson, "The former Ambassador, either by design or through ignorance, gave the American people and, for that matter, the world a version of events that was inaccurate, unsubstantiated, and misleading."
The way out of this for Mr. Bush is contained, also, in the Constitution, in Article II, which states the president "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." The Founder's Constitution, that great compendium of backup material on the Constitution, quotes George Mason as commenting, "The President of the United States has the unrestrained power of granting pardons for treason, which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt." The point is not that Mr. Libby or any one else in this case trifled with treason but rather that the Founders knew precisely the defensive uses to which the pardon power they were handing the president could be put.
As these columns were being put to bed, Matt Drudge was reporting that the special prosecutor is hatching a plan to try to force Vice President Cheney to testify in open court. The editors of these columns spent much of the 1990s warning that the office then occupied by Kenneth Starr was, though he himself was an honorable man, unconstitutional - and we cited Jefferson's warning against permitting the president to be haled in court, lest he be dragged, as Jefferson warned, "from pillar to post." Certainly the vice president ranks for the same principle. So by our lights the right move would be for Mr. Bush to shut down this entire prosecution with a blanket pardon. He would not only be protecting his loyal staffer, he'd be protecting the office of the presidency itself from those who all along in this case have wanted to undercut the president's powers in a time of war.