Monday, January 22, 2007
Bad journalism and Fitzgerald Derangement Syndrome
You know that the "profession" of journalism is in decline when The New Yorker, a magazine known for its dedication to fact-checking, publishes an article by the dean of the nation's premier school of journalism that is this inaccurate. The subject is the Plame leak case (about which most mainstream media coverage has been extremely casual with the facts), and John Podhoretz picks apart three fairly central claims from a single paragraph. Good stuff. But then Podhoretz himself makes a bizarre claim that I do not begin to understand:
Nicholas Lemann is a journalist with a remarkable record and is, I think, an honorable person. His inability to get straight what happened in the Wilson case is another example of why the prosecution of Scooter Libby is a shameful botch.
Huh? Nicholas Lemann's inability to get the facts of the Wilson case straight explains "why the prosecution of Scooter Libby is a shameful botch"? Call me a bonehead, but I just don't see the connection. Indeed, this toss-away claim of Mr. Podhoretz is just the latest example of the FDS ("Fitzgerald Derangement Syndrome," duh!) that seems to have swept through the ranks of the NRO and its fellow travelers. Whatever one thinks of Joe Wilson -- and I believe him to be a lying weasel -- and however much schadenfreude one might feel over the Washington press corps twisting in the wind (they having called for an investigation that would, so obviously, require them to turn on their "confidential" sources), I just don't see why we are all supposed to feel sympathy for Scooter Libby.
An investigation can be both a partisan witch hunt and uncover obstruction of justice and perjury. Just ask Bill Clinton. Any meaningful distinction -- in either direction -- between the Clinton and Libby cases strikes me as very strained. They are the same damned case, yet conservatives who delighted in Clinton's troubles seem to think that there is a principled difference between his case and Libby's. Exhibit A is the editorial page of the Wall Street Journal, which is usually your best source for strong conservative writing. In an editorial Saturday, however, the WSJ essentially accused Pat Fitzgerald of bad faith, stitching together a weird story about Fitzgerald's supposed resentment over Bill Clinton's pardon of Marc Rich, whom Scooter Libby had represented. Without more, the editorial is a scurrilous attack on Fitzgerald's character. Worse, it is eerily similar in tone to the equally offensive attacks against Ken Starr, which attacks I am sure the Wall Street Journal deplored circa 1998 (anybody with access to Nexis want to find the smoking editorials?). Finally, it closes with this disingenuous point:
This case is really about a political fight over the Iraq War. In talking to reporters, Mr. Libby was doing his job and attempting to defend Administration policy against political attacks. He had no evident reason to lie to the grand jury. Once Mr. Armitage had fessed up as the leaker in October 2003, a wiser prosecutor than Mr. Fitzgerald would have realized he had entered the realm of politics and gone home.
This is of a piece with the widespread conservative complaint about Fitzgerald -- that he knew that no underlying crime had occurred when took over the case at the end of 2003, and that therefore (this reasoning goes) the subsequent prosecution of Libby is ipso facto a witch hunt. Unfortunately, Scooter had already twice spoken to the FBI with his lawyer present, and twice recounted highly germane facts that subsequently turned out to be untrue (see the indictment at paragraph 26). Fitzgerald would have been derelict, under the circumstances, if he had not tried to figure out whether Libby was lying (as, I'm sure, the FBI agents believed he was). One would think that respect for intellectual honesty would require the editors of the WSJ at least to acknowledge this confusing detail in their shabby attack on Pat Fitzgerald's character.
The Wilson-Plame scandal is not that the White House set out to smear Joe Wilson, it is that Joe Wilson chose to prevaricate about his mission at the behest of the CIA. As Andy McCarthy wrote last summer, Wilson seems to be the real villain of the story. None of that explains or justifies Libby's behavior, which was at the very least deceptive, even if the jury ultimately decides that he was not intentionally so. Patrick Fitzgerald had plenty of very legitimate reasons to pursue Scooter Libby, and it is shameful to imply with no real evidence that he is motivated by some illegitimate consideration, such as resentment over Libby's representation of Marc Rich.
12 Comments:
By 
Assistant Village Idiot, at
Mon Jan 22, 06:14:00 PM:
I tend to agree that there is similarity in the Clinton and Libby cases based on process crimes rather than the original purpose of the investigation. I do see one difference, however. In the Clinton case, what he lied about - having an affair with an intern - was not a crime. It was, however, germane to a case in which there was a crime. In the Libby case, not only is there not a crime, it does not appear that his statements have bearing on any other purported crime. I say "appears" because there are details of this that remain unknown.
The analogy would be prosecuting a drug dealer for possession, because that is all that can be proved. Possession is a crime that may deserve prosecution whether a person is dealing or not. But in the larger examination of guilt, it would make a difference to most people whether someone was being busted for mere possession, as opposed to a fallback prosecution for a greater offense. The law cannot make that distinction, but public opinion can.
By TigerHawk, at
Mon Jan 22, 06:38:00 PM:
In the Clinton case, what he lied about - having an affair with an intern - was not a crime. It was, however, germane to a case in which there was a crime.
AVI, I'm getting a little hazy on the facts of the Starr investigation, but I am unaware that Clinton's lie was germane to a case that involved a crime. It certainly was germane to Paula Jones' sexual harrassment litigation, but that was a civil lawsuit.
By 
, at
Mon Jan 22, 07:18:00 PM:
Personally, I think this is fair use. It's from the Mar 11, 1998 WSJ. 27 documents show up, by the way, searching the WSJ editorials for Clinton and Starr.
We blink every time talking heads discuss Kenneth Starr's low approval ratings; we hope we aren't the only ones taken a bit aback by the very idea of conducting opinion polls about judicial officers. In the judicial branch, we thought, the game was about statutes and precedents and scholarly qualifications, not about popularity. But perhaps this useful distinction too is being obliterated in the current climate.
If so, the corner was turned with the campaign against Robert Bork's nomination to the Supreme Court. Precisely because his scholarly attainments and intellect were the cream of his generation, his opponents feared his views would dominate a new crop of jurists. So they mounted a campaign to drive down his poll ratings, and thereby frighten the Senators weighing his nomination. They succeeded, but the cost to American institutions becomes clearer and clearer with the passage of time.
We have arrived at a point where a James Carville goes on television to declare "war" on Kenneth Starr. Mr. Starr is an official of the U.S. government, duly appointed by a panel of three judges pursuant to laws passed by the U.S. Congress and signed by Bill Clinton. Presumably this means he is not the local football coach, removable by mob sentiment. If Mr. Starr is abusing his powers, that same law provides that the Attorney General can remove him, and she should do so.
Instead, Mr. Clinton's Attorney General has expanded the scope of Mr. Starr's investigation at least three known times. Four former attorney generals, including Griffin Bell of the Carter Administration, have testified to Mr. Starr's long-standing personal reputation for integrity and judicial temperament. (Since their statement has not been widely covered, we reprint it in its entirety nearby.)
None of this matters in Mr. Carville's war, and we're confident none of it is explained to people when the pollsters put their questions.
What we have here is a public relations offensive intended to turn the public against a court official going about his work and not in a position to reply to every criticism. In the March 2 New York Times an obviously confident White House aide casually describes "our continuing campaign to destroy Ken Starr."
This "continuing campaign" hasn't been restricted to Mr. Starr, himself a former appeals court judge. Judge David Sentelle of the three judge panel has been diminished by Clinton operatives as merely a tool of Senator Helms. Other troublesome judges can expect to be similarly targeted. This is, in effect, an attack on the judicial branch if not indeed the law itself.
In this campaign, the President of the United States avails himself of his own personal Praetorian Guard of dirt-diggers, personified by Terry Lenzner's Investigative Group Inc. Back in 1994, the President's private attorneys, Robert Bennett and David Kendall, retained IGI's services in the Paula Jones and Whitewater cases. Jack Palladino, hired in the first Clinton Presidential run to help with Betsey Wright's "bimbo eruptions," has also appeared on the scene, bragging about his success in avoiding subpoenas. Mike McCurry, spokesman for the Presidency who's doubling inappropriately as flack for Mr. Clinton's own lawyers, said the President was aware that his private lawyers had hired outside investigators but that the detectives weren't looking for "personal derogatory information."
Yet somehow derogatory information, some of it plainly false, keeps popping up. Former prosecutor Joseph diGenova said last month on "Meet the Press" that journalists told him that both he and his wife were being probed after they'd given interviews critical of Mr. Clinton in the Lewinsky scandal. Mr. Starr's private life has also been investigated, with all involved denying a White House connection. Mr. Starr's perhaps impolitic subpoena of White House spinner Sidney Blumenthal came after the IC's office started receiving reporters' calls asking for comment on destructive rumors about staff prosecutors. Wire stories, for example, suggested that prosecutor Bruce Udolf had been fined 10 years ago for violating a defendant's civil rights in Georgia. A former federal judge defended Mr. Udolf against the implication that he could be expected to abuse the law.
Richard Nixon's Watergate "plumbers" offended mainly because the President, who has authority over a powerful national security apparatus, had created a private posse to investigate his enemies, unchecked by professional pride and the mores of an ongoing institution. It's now evident that the Clintonites learned two things from Watergate: Burn the tapes, and put your plumbers in your personal law firm to acquire attorney-client privilege.
No doubt the White House is proud of its success in Borking Mr. Starr. Yet serious people should recognize the damage being wrought to institutions developed over centuries to uphold the idea that civilization means something more than the sentiment of the passing moment. If poll ratings are all that matter in the nation's capital, a President can perhaps sustain them with a prosperous economy and a winning television manner, or as the Romans said, bread and circuses. Mr. Carville's war and Mr. Starr's polls give us a glimpse of one possible evolution of our political system in an era of instant communications. The issue is whether we will be governed by men or by laws.
By , at
Mon Jan 22, 07:20:00 PM:
"of why the prosecution of Scooter Libby is a shameful botch." This is ,I believe, a classic case of transference. We have to blame someone for this travesty, but, not the prosecutor. So lets blame an inane article many, many months after the travesty was perpetrated. Maybe he hopes that no one will notice.
By TigerHawk, at
Mon Jan 22, 10:24:00 PM:
Taumarunui,
A couple things. I didn't say that Scooter was guilty. Maybe the facts alleged in the indictment are not true, in which case Libby should definitely get off. The question is, if the facts as alleged in the indictment turn out to be true, is Libby a dirtbag, or not? I think he is, because I think that it is bad to lie to federal investigators. A lot of people on the right seem to what to exonerate Libby for his own bad acts because of the political motivations behind the call for an investigation. I don't understand that reasoning, especially in light of positions that many of them took with regard to Clinton (who, by the way, unlike Libby had an obvious non-nefarious reason to lie: fear of Hillary).
Here's the thing about the Libby case: Nobody is arguing that Libby didn't say some wrong facts to investigators or the grand jury. The only question is whether he intended to lie. I'm guessing that the FBI agents who interviewed Libby came away with a strong cop's feeling that he was lying to them. They probably communicated that feeling back to the Justice Department, and then later to Fitzgerald. So, if my guess is correct you have wrong facts coupled with the gut feeling of a couple of FBI investigators that Libby's story doesn't hold together. Seems like a good reason to keep investigating.
The comparison of Fitzgerald to Nifong is asinine on many levels. I don't know who you are, but I'm sure it is beneath you.
By Purple Avenger, at
Tue Jan 23, 01:46:00 AM:
Did the FBI ever put Libby on the box?
That would end the whole thing in a half hour or so.
By Escort81, at
Tue Jan 23, 02:38:00 AM:
TH - isn't there some judgment that the prosecuter must make regarding how material the misstatements are (particularly with respect to the original suspected crime) before proceeding with an indictment? If Libby says he had a ham sandwich between calls to the NYT, and he in fact had a turkey sandwich, that probably doesn't rise to the level of an indictable offense. If he denied ever talking to a particular reporter when there is a lot of evidence that he talked repeatedly to that reporter, that is material to the investigation itself and probably impeded it somewhat, but still not directly relevant to the underlying suspected crime. Where exactly is the bar for indictment? How much does prosecutorial discretion enter into it? Help me out here, you're a lawyer and I am not. (Inadvertant Chevy Chase pseudophraseology).
By RattlerGator, at
Tue Jan 23, 08:49:00 AM:
Slow your roll, Tigerhawk.
escort81, your status as a non-lawyer helps you on this question, not Tigerhawk. Lawyers often operate in an echo chamber that blinds them to the obvious -- just as it does so many in other environments. Except lawyers are incapable of admitting this possibility even exits.
"The comparison of Fitzgerald to Nifong is asinine on many levels. I don't know who you are, but I'm sure it is beneath you."
Frankly, I would have thought *THAT* comment was beneath you. Apparently not. And here I think we get to the problem you seem to be glossing over -- willingly or not.
What part of "political question" don't you comprehend on this case? Are you honestly putting forward the proposition that an overreach during the Clinton administration (either by the administration or its critics) is analogous to the Bush Administration, in a post-9/11 world, defending itself and its policies from an overtly hostile media establishment attempting to cripple its 9/11 strategies?
Nifong and Fitzgerald appear to be two sides of the same "prosecutorial power" coin to me. But given that the comparison is asinine on so many levels, do us the honor of providing three please, sir.
By Georg Felis, at
Tue Jan 23, 10:36:00 AM:
If I *ever* were in a situation where my job involved talking with reporters, and the FBI called me in to give possibly self-incriminating testimony about my conversations with a couple of them six months ago, then I’m going to do my best imitation of a clam, I don’t care what my boss says. I have a hard enough time remembering what I told somebody about their computer yesterday.
This entire case against Libby is based on a single theory: The reporters are telling the truth and Libby was intentionally lying. NPR’s Nina Tottenberg did a story on this week or so ago that had me yelling at the dashboard because she had the story so slanted, it was not until about half-way thru that she let slip that maybe, just maybe, this was a “He said, she said” type of trial. For some reason Reporters believe Reporters, therefore any case where a Reporter is testifying against the Administration of Karl Rove it is quite obvious where they stand.
That said, I have no doubt that when Libby was asked if he had heard that Wilsons wife worked at the CIA, that he would “Yeah, I heard that too” and move on, which was dumb. How in *censored* does our country keep *any* secrets?
By D.E. Cloutier, at
Tue Jan 23, 11:41:00 AM:
TH: "...coupled with the gut feeling of a couple of FBI investigators..."
Lawmen tend to draw conclusions too quickly during investigations. The hunches and instincts of these people are often wrong.
By , at
Tue Jan 23, 06:47:00 PM:
I agree with rattlegator. This is purely political, another attempt at the 'unmaking of a president and his administration'. Why do you think the dems hated John Bolton so much? Because he went to Palm Beach County Fl and stopped the vote counting in 2000. Thats why.
By Assistant Village Idiot, at
Thu Jan 25, 11:57:00 PM:
Back to the top - You are correct that it was a civil and not a criminal case. My error. I don't think that ruins my original argument, however.
