“After any special prosecutor has spent millions of tax dollars and is caught in the media spotlight, the temptation is to find something, anything, rather than say it has not been worth the expense or the bother.” (Thomas Sowell, November 1, 2005)

“PlameGate” may finally boil down to an elaborate scheme by Democrat operatives to criminalize the War on Terror and discredit the Bush presidency. Patrick Fitzgerald’s two-year investigation into the alleged outing of CIA employee Valerie Plame has thus far sent one reporter to jail, cost millions of dollars, and preoccupied several White House officials, to the exclusion of other matters that would have better served the American people. The question of prosecutorial misuse of power certainly has to be raised.

As is often the case in these political brouhahas, it is difficult (if not impossible) for most observers to cut through the thick fog of battle and get at the truth. Even more unfortunate, there are a great many players in this current ruckus that want things exactly that way. Confusion serves their purposes far better than the truth.

“Plame Frame”?
From the beginning of the this highly politicized uproar, Democrats have accused the Bush administration of disclosing Plame’s “covert” identity to punish her husband, Joe Wilson, for undermining their claim that Saddam Hussein had tried to acquire uranium yellowcake from Niger. At this point, there has been only one indictment—former White House aide, Lewis Libby.

Until October 28, Libby had served as an aide to Vice President Cheney. On that day, he resigned after being indicted on charges of obstruction of justice and lying to FBI investigators.

Press reports leading up to the announcement on October 28 led us to believe that indictments would charge one or more White House officials with the crime (under the Identities Protection Act of 1982) of revealing the name of a covert CIA agent. That didn’t happen. In summarizing the points of the indictment, the prosecutor, Patrick Fitzgerald, made it clear the indictment did not include such a charge. It seems safe to assume that if the prosecutor had had enough evidence to charge Libby with the crime for which the investigation was authorized in the first place, he would have done so.

Some other facts about the indictment need to be isolated from the smoke and noise that surround the case.

The indictment alleges that Valerie Plame was a CIA agent whose affiliation with the CIA was classified information. Lewis Libby has clearance for classified information, and the indictment alleges that he learned of Plame’s affiliation and passed that information on to reporters.

It is alleged that Libby lied to FBI investigators and a grand jury about his source of information about Plame’s CIA affiliation. Libby claims he first learned of the information from reporters.

The indictment did NOT indict Libby for divulging the identity of a covert agent.

It is not even clear at this point that a crime was committed in this case. To use Thomas Sowell’s words, “[T]oo often the authorization of an investigation is essentially a fishing license to enable the prosecutor to find something to prosecute, whether or not he can get evidence to prosecute the crime he was supposed to be investigating. The case against [Libby] consists essentially of the fact that he remembers various conversations with reporters differently from the way those reporters remember those conversations.” (“Fishing License Indictment,” TownHall.com, Nov. 1, 2005)

In order to violate the 1917 Espionage Act, an individual must 1) intentionally leak classified information (Plame’s affiliation with the CIA, in this case) to a person not entitled to receive it, and 2) do so with intent to do injury to the United States or to give advantage to a foreign nation. Fitzgerald admitted to the media following the indictment that [given the assumption that Libby is guilty of mishandling classified information] he (Fitzgerald) didn’t know Libby’s intent.

Further, the agent in question must truly be covert and must have been assigned to duty outside the U.S. currently or in the past five years. Plame has reportedly been living in the U.S. since 1997; and when Robert Novak’s July 2003 column (which seems to have ignited the flap over Plame’s “outing”) was published, she was working at a desk job at Langley.

The other issues are whether Libby is guilty of obstruction of justice, perjury, and making false statements to investigators. Fitzgerald would not comment on whether he had evidence to support those accusations, other than the testimonies of Mr. Libby and three journalists.

“Investigate the CIA”
Victoria Toensing, a Washington lawyer and former chief counsel for the Senate Intelligence Committee, was involved in drafting and negotiating the scope of the 1982 Intelligence Identities Protection Act. That statute will no doubt figure prominently in determining whether Lewis Libby is guilty of one or more crimes in the Plame free-for-all. Based on her thorough knowledge of the statute, Ms. Toensing stated earlier this year, “Congress did not intend for government employees to be vulnerable to prosecution for an unintentional or careless spilling of the beans about an undercover identity” (Washington Post, January 12, 2005).

More recently, Ms. Toensing wrote a highly expository article (Wall Street Journal, Nov. 3, 2005) entitled, “Investigate the CIA.” She raises some highly pertinent issues about the origins of the “Plame game” which she attributes to CIA incompetence at best, and at worst, to a deliberate, covert action against the White House:

--The CIA sent Valerie Plame’s husband, Joe Wilson, known to be a partisan opponent of the administration’s Iraq policy, to Niger on a sensitive mission regarding WMD. Despite the fact he had no intelligence background, his mission was to determine whether Iraq had attempted to purchase yellowcake, an essential ingredient for non-conventional weapons According to a Senate Intelligence Committee report, he was sent to Niger by the CIA at the suggestion of his wife, a CIA employee.

--Wilson was not required to sign a confidentiality agreement, a mandatory act for anyone else who carries out similar CIA assignments

--When he returned from Niger, Wilson was not required to write a report. He provided an oral briefing only, which information was not even sent to the White House. If this mission to Niger had been as important as it has since been represented to be, a competent intelligence agency would have required a thorough written assessment from Wilson.

(Since Wilson has inferred that it was Dick Cheney’s office that sent him to Niger, it seems preposterous that neither Cheney nor President Bush was privy to Wilson’s oral report.)

--Despite the fact that Wilson was not required to submit a written report, he was permitted to tell all about his “sensitive” assignment in an op-ed in the New York Times on July 6, 2003. (Wilson used that opportunity to accuse the Bush administration of “exaggerating the Iraqi threat” in order to justify war.) Ms. Toensing makes very clear that others writing about such an assignment would have been required to submit their writing to the CIA’s pre-publication review board and “spend countless hours arguing over every word to be published.”

--Clearly, if the CIA had truly wanted Ms. Plame’s identity to be secret, it would never have permitted her spouse to publish the op-ed.

A sophisticated journalist such as Robert Novak would have wondered, “Who is Joe Wilson, and why was he sent on such a sensitive mission?” After being told by a still-unnamed administration source that Mr. Wilson’s “wife” suggested him for the assignment, it was an easy matter to go to Who’s Who and find that “Valerie Plame” is Joseph Wilson’s wife.

--When Novak called the CIA to verify Ms. Plame’s employment, the press office not only confirmed it, but made only a perfunctory request not to publish. There were no serious objections from the director or any other officials at the top of the agency.

What is Behind This Furor?
The Opinion Journal (Oct. 29, 2005) observes, “The indictment itself contains no evidence of a conspiracy, and Mr. Libby has not been accused of trying to cover up some high crime or misdemeanor by the Bush Administration. The indictment amounts to an allegation that one official lied about what he knew about an underlying “crime” that wasn’t committed. . . . [Fitzgerald] has thrust himself into what was, at bottom, a policy dispute between an elected Administration and critics of the President’s approach to the war on terror, who included parts of the permanent bureaucracy of the State Department and CIA. Unless Mr. Fitzgerald can prove beyond a reasonable doubt that Mr. Libby was lying, and doing so for some nefarious purpose, this indictment looks like a case of criminalizing politics.”

Our assessment at this point is that Democrat operatives have seized on a couple of laws (the 1917 Espionage Act and the Identities Protection Act of 1982) not well known or understood by the general public, and hope to use the resulting confusion to create the widespread belief that key Republicans—and especially, White House officials—are guilty of criminal misconduct.

With the establishment media all too willing to carry water for liberal causes, the Democrats can count on prolific media coverage to carry out what is virtually a “trial by media.” Most Americans believe that anyone accused under our laws is presumed to be innocent until proven guilty. Unfortunately, sleazy politicians often resort to an old ploy used by unethical publishers to smear their opponents: They print inaccurate or false information on the front pages of their newspapers; then, to avoid charges of libel or slander, they later print a retraction in the more obscure pages of the paper, knowing full well that the public will remember the original front-page charge and will most likely never see the retraction.

The Democrats’ current “talking points” phrase (their front-page-of-the-newspaper stuff) is the blanket accusation of “a thoroughly corrupt Bush administration.” When one compares the scandal/sleaze factor of the Clinton administration with the record of the Bush administration thus far, the charge is laughable. But, as any football coach will tell you, the best defense is always a good offense, and the Democratic leadership undertook an aggressive offensive right from the beginning to “even the score” with Republicans for their victories in the 2000 and 2004 presidential elections. Democrat operatives have seized every opportunity to characterize President Bush as a liar, and his administration as “thoroughly corrupt.” Strategists who construct this disgusting barrage of accusations and slanders hope that the smoke and confusion they create will plant enough doubt to guarantee a vote for change in 2006 and 2008.

These tactics remind me of the story about the old man who lay down on the living room couch to take a nap, and his grandchildren decided to play a prank on him. While he was asleep, they smeared his mustache with Limburger cheese, then hid. When the old man woke up, he smelled the rancid odor and concluded there was something foul in the living room. He went up to his bedroom to escape the odor, but declared, “Something stinks in here, too.” He made the rounds of the house, finding the intolerable smell everywhere. Finally, he ventured outdoors. Finding no relief there, either, he roared, “The whole darned world stinks!”

Democrat strategists know that if they throw enough garbage out there, confused Americans may decide the whole darned world stinks. I have no doubt that is just what they want. Confusion serves their purposes far better than the truth.

Summary
There is an urgent need to examine the laws that allow over-zealous or politically motivated prosecutors unlimited license to see if they can trap some key official—who may have given inconsistent statements to some other official—about something that may or may not have been a crime in the first place!

It is our hope that the American people will “get up on their hind legs” and demand an end to prosecutorial abuses and costly, interminable witch hunts that serve no purpose other than to advance a political agenda.

Once again, we call on Congress to repeal the immunity laws for executive branch and public officials, so that an injured party will be able to sue in civil court and go after the personal assets of officials who have abused their power.