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January|February 2006

Law and Politics

By Lincoln Caplan

"THE TRUTH IS THE ENGINE OF OUR JUDICIAL SYSTEM," special counsel Patrick Fitzgerald said when he explained the indictment of I. Lewis "Scooter" Libby for obstruction of justice, lying repeatedly to a grand jury, and making false statements to the FBI. "And if you compromise the truth, the whole process is lost." Much of Fitzgerald's explanation, however, was about how the truth in this case has been hard to come by.

The case began in 2003 with the leak that Valerie Wilson, a covert operator in the CIA, worked at the agency. The leak came after her husband, the career foreign service officer Joseph Wilson, conducted an investigation for the CIA in Africa and went public with his conclusion that the Bush Administration had misled the world about a key justification for the war in Iraq: that Iraq had obtained from Niger yellow-cake, a processed form of uranium ore that can be used in making nuclear bombs. Fitzgerald's inquiry was a two-year effort to understand who leaked Valerie Wilson's name and why, and to decide how to respond.

The Espionage Act makes it a crime to give classified information about a CIA officer's identity to anyone not authorized to receive it. You can't violate the act unless you know the information is classified and you are reckless in revealing the officer's identity. Libby allegedly knew Mrs. Wilson's work was classified, but it wasn't clear that he acted recklessly in apparently revealing her occupation to at least two journalists. So Fitzgerald didn't seek charges under the act.

Although the special counsel received harsh criticism for impinging on press freedom by ordering those journalists to testify before the grand jury, he argued that he had little choice. Where the question was whether Libby "lied under oath about his conversations with reporters," Fitzgerald explained, and the conversations might be the crime, "how could you ever resolve it without talking" to the reporters? The goal was to keep Libby from lying. Libby has pled not guilty to all charges and is represented by first-rate trial lawyers who are helping him make his case. But, based on the indictment, he apparently calculated that whatever he told the authorities would go unchallenged, because the reporters would insist that they were protected by the First Amendment and refuse to testify.

Fitzgerald's explanation of the indictment was a lesson about the deliberate steps and careful judgments required to enforce the law. He demonstrated restraint by not bringing charges under the Espionage Act (even though he arguably could have) and aggressiveness by ordering journalists to testify, and each decision made him unpopular with one political faction or another. When he was asked whether he had had the independence he needed to conduct his inquiry, Fitzgerald said, "There was no political interference whatsoever with my team or our work on this case." No one doubted him.

THE DAY BEFORE THE LIBBY INDICTMENT, White House Counsel Harriet Miers withdrew her name as a candidate for the Supreme Court and made herself a footnote to history. No one doubted that her nomination had been heavily tinged with politics. When it comes to the court's business, the line between politics and law often seems to have disappeared. The country was rocked by this realization when the five conservative justices of the Rehnquist Court employed a novel legal theory to hand the presidential election to Bush in 2000, but the justices' action was only an extreme example of something that's been happening with increasing intensity over the last generation. Legal landmarks have helped bring politics into the judicial system by deciding volatile political issues in a way that inflamed those who held an opposing view.

The ruling in Roe v. Wade giving abortion the protection of the Constitution brought committed Christians into politics and shifted the country to the right, and it remains at the center of judicial politics. Talk about Samuel A. Alito Jr., picked for the Supreme Court because he's known as a strong conservative as well as a gifted judge, immediately focused on a single vote he cast on the Third Circuit to apply Roe narrowly—and on whether he would uphold that landmark at the high court. These days constitutional law is about politics. It can determine the legality of abortion and other hot-button issues and reorder the workings of our federal system.

But the dismay that many Americans feel about this jumble of law and politics suggests that they believe politics and law should somehow be disentangled. Fitzgerald provided a moment of reassurance by revealing that he's not a member of a political party and by saying, "When a vice president's chief of staff is charged with perjury and obstruction of justice, it does show the world that this is a country that takes its law seriously."

Lincoln Caplan is the editor and president of Legal Affairs.

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