The Wall Street Journal editorial board has presented Karl Rove and Scooter Libby’s defense. If this all they’ve got, they are going to be doing hard time. The WSJ should carefully consider testing their kool-aid, because I don’t think the best defense for lying to a grand jury is to lie to a trial jury. Let’s take a look at how many lies the WSJ is putting forth:

Rampant leaks notwithstanding, no one but Patrick Fitzgerald knows all of the criminal evidence the special prosecutor is considering against senior White House officials. Our hope is that he also understands that the job of a prosecutor is not to settle what at bottom is a political and policy fight over the war in Iraq.

The assumption here, is that the decision to bypass the traditional vetting of intelligence by stovepiping raw intel into the VP’s office, and then using that raw unvetted intel to push forged documents on Congress, the United Nations, the IAEA, and the public…all to trump up false rationales for a war of aggression…all of that is beyond the scope of the law. All of that is merely a policy fight and/or political differences. Okay. Let’s be generous and grant them their assumption.

Let’s stipulate that the law is the law, and if Bush administration officials lied to a grand jury in the clear and obvious way that Bill Clinton did, they should be prosecuted. If Mr. Fitzgerald has evidence of a malicious attempt to expose a CIA undercover agent, as defined by the relevant statute, the same applies. But the fact that the prosecutor has waited as long as he has — until the last days of his grand jury — suggests that he considers this a less than obvious case. A close call deserves to be a no call.

Does it suggest that the case is “less than obvious” or does it suggest that Judith Miller was stonewalling his investigation for over a year, and that she and Scooter Libby have been hiding a crucial June 23rd, 2003 meeting in the Eisenhower Executive office?

All the more so because this entire probe began and has continued as a kind of proxy for the larger political war about the Iraq War. In July 2003, Joseph Wilson used his insider status as a former CIA consultant to accuse the Bush administration of lying about Iraq WMD as an excuse to go to war. A political furor erupted, and Mr. Wilson became an antiwar celebrity who joined the Kerry for President campaign.

This clause is technically true. It is perhaps the only technically true clause in the whole editorial. Yet, it ignores that Joseph Wilson knew that the Bush administration lied “about Iraq WMD as an excuse to go to war”, and that the fact they lied about it was a highly significant reason not to re-elect them. It would have been unpatriotic for Wilson to allow the election to go forward without letting the public know the facts.

Amid an election campaign and a war, Bush administration officials understandably fought back. One way they did so was to tell reporters that Mr. Wilson’s wife, CIA analyst Valerie Plame, had been instrumental in getting him the CIA consulting job. This was true — though Mr. Wilson denied it at the time — as a bipartisan report by the Senate Intelligence Committee documented in 2004.

This all depends on what the meaning of ‘instrumental’ means. Joe Wilson took a trip to Niger for the CIA in 1999. At that time, his wife may have suggested him for the job. But in 2002, she was asked whether he was willing to go, asked to write up his bona fides, asked to raise the matter with him, and then introduced him to the meeting at headquarters, before recusing herself. She did not authorize him to take the trip. She didn’t have that authority. She had newborn twins at home, and the Niger job payed nothing. How could it have been a ‘boondoggle’, as Rove or Libby told Walter Pincus it was? How is any of this relevant in any way?

As it does many times each year following a press report with classified information, the CIA routinely referred this “leak” about Ms. Plame’s status to the Justice Department for investigation. Only after someone (probably at the CIA) leaked news of this referral to the media in September 2003 was there another political uproar and calls for a “special prosecutor.” Three months later, the panicky Bush Administration relented, and Mr. Fitzgerald was appointed.

This is the new line the GOoPers have been pushing this week. The CIA makes about 50 referrals a year to the Justice Department about the leaking of classified information. But the CIA leaks classified information all the time that they do not refer to the Justice Department. Therefore, the whole Plame case is a hypocritical waste of time because no one would care about the investigation if the CIA hadn’t leaked that the investigation was requested. Steely Dan called this Pretzel Logic. If the CIA wants to leak classified information, then they obviously don’t think it is going to harm our national security. Does the WSJ have a theory of how leaking their referral of the Plame case to Justice is a threat to our national security on a par with outing an undercover operative?

Mr. Wilson’s original claims about what he found on a CIA trip to Africa, what he told the CIA about it, and even why he was sent on the mission have since been discredited. What a bizarre irony it would be if what began as a politically motivated lie by Mr. Wilson nonetheless leads to indictments of Bush Administration officials for telling reporters the truth.

This is such horseshit. The so-called bipartisan Roberts report on Wilson’s trip was a transparent whitewash and hatchet job. They found one example of Wilson lying.

he concluded the Niger intelligence was based on documents that had clearly been forged because “the dates were wrong and the names were wrong.”

“Committee staff asked how the former ambassador could have come to the conclusion that the ‘dates were wrong and the names were wrong’ when he had never seen the CIA reports and had no knowledge of what names and dates were in the reports,” the Senate panel said. Wilson told the panel he may have been confused and may have “misspoken” to reporters. The documents — purported sales agreements between Niger and Iraq — were not in U.S. hands until eight months after Wilson made his trip to Niger.

So, okay, he lied about seeing the forged documents. It does undermine his credibility. But it hardly discredits his conclusion that Iraq had not succeeded in getting any uranium from Niger. He didn’t lie about what he found in his report to the CIA, he didn’t lie about his wife’s role in sending him. This is just crap.

Mr. Fitzgerald’s original charge was to investigate if anyone had violated the 1982 Intelligence Identities Protection Act. But as we and others have repeatedly written, to violate that law someone must have deliberately and maliciously exposed Ms. Plame knowing that she was an undercover agent and using information he’d obtained in an official capacity. Ms. Plame was surely not undercover, and her own husband had
essentially made her “outing” inevitable when he exploited his former CIA consultant status (that she had helped him obtain) to inject himself
in the middle of a Presidential campaign.

Was his charge limited to investigating the 1982 Intelligence Identities Protection Act? Here is the letter that started the investigation:

Dear Patrick,

By the authority vested in the Attorney General by law, including 28 U. S .C. §§ 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. § 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department’s investigation into the alleged unauthorized disclosure of a CIA employee’s identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department.

/s/ James B. Comey
James B. Comey
Acting Attorney General

Nothing in there about the 1982 law.

And, again, the WSJ pushes the canard that Valerie Wilson was not undercover. No matter how many times we knock this lie down, it keeps reemerging. What did the CIA have to say about it at the time it was referred to Justice?

Novak said the CIA asked him not to disclose Plame’s name, “but never indicated it would endanger her or anybody else,” and that he was led to believe that she was “an analyst, not a spy, not a covert operative, and not in charge of undercover operatives.”

Novak was wrong on those accounts, according to the CIA. “We wouldn’t file a crimes report” if the case didn’t involve an agent undercover, a U.S. official said…

…U.S. intelligence officials declined to discuss details of the case, but said exposing an operative’s identity is a serious breach with unpredictable consequences. It not only deprives the operative of being able to work undercover in the future, but threatens to expose her sources, some of whom may be risking their lives to share secrets with the CIA. Outing an officer also places in jeopardy any CIA operative who replaces her in her overseas “cover,” often a diplomatic post at a U.S. embassy.

The official said the agency is obligated under federal law to refer leaks of classified information to the Justice Department. The agency refers about 50 such leaks a year, the official said.

Okay? Nuff said.

Mr. Fitzgerald may have recognized this problem early, because in February 2004 he asked for permission for much broader investigative authority. It was granted by the man who appointed him, his friend and then Deputy Attorney General James Comey. (Attorney General John Ashcroft had recused himself, in what looked to us then, and still does today, as an act of political abdication.) Mr. Fitzgerald’s office only recently created a Web site and has posted Mr. Comey’s letters — an act of odd timing, at the least.

Let me get this straight. The WSJ is saying that Wilson made the exposure of his wife ‘inevitable’ by interjecting himself into a political campaign AND that the reason Fitzgerald asked for increased authority to “investigate and prosecute violations of any federal criminal laws related to the
underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of,
and with intent to interfere with, [his] investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses” was because he didn’t think he could indict for the original outing of Valerie Wilson?

Maybe he realized early on that he was encountering a massive cover-up, stonewalling, and the intimidation of witnesses? Could that be it?

Media reports say Mr. Fitzgerald is also exploring violations of the 1917 Espionage Act, for leaking classified information. This law has rarely been enforced, and if leaking classified information was routinely prosecuted half of Washington would be in jail. That September 2003 story about the CIA referral to Justice to investigate the Plame
“leak” was itself a disclosure of classified material. You could hardly pick up a paper in 2004 without reading selectively leaked details from
classified documents leading up to the Iraq War — an obvious attempt to discredit the war and elect John Kerry. An indictment based on this statute would be an egregious case of selective prosecution.

Once again, the WSJ totally ignores any suggestion that the outing of Valerie Plame may have harmed our national security and placed our employees and assets in danger. All leaks of classified information are considered equal, and equally insignificant.

Yes, that still leaves the possibility of a “coverup,” and we don’t know all that Mr. Fitzgerald knows on that score. But the evidence that is so far public has revealed nothing like Watergate or even the Clinton campaign-finance scandals. It is also hard to believe that a seasoned lawyer like I. Lewis Libby, Vice President Cheney’s chief of staff, would be so foolish as to lie to a grand jury. The press is full of reports of discrepancies in accounts of who told what to whom. However, an obstruction of justice charge against senior officials ought to require more definitive evidence.

That Scooter Libby lied to the Grand Jury is transparently obvious. That he attempted to suborn perjury from Judith Miller has been testified to by Judith Miller, according to her own first-hand account. How much more definitive can you get? It may be hard to believe that Scooter Libby utterly fucked himself, but it is nonetheless one of the few things we can be truly certain about.

The temptation for any special counsel, who has only one case to prosecute, is to show an indictment for his money and long effort. But Mr. Fitzgerald’s larger obligation is to see that justice is done, and that should include ensuring that he doesn’t become the agent for criminalizing policy differences. Defending a policy by attacking the credibility of a political opponent — Mr. Wilson — should not be a felony.

All they had to do was attack Mr. Wilson’s credibility using all the arguments they wanted short of identifying his wife as a employee of the CIA. That would not have been a felony, you idiots.

As for Mr. Bush, we hope he realizes that anyone who is indicted was defending his policy and his Presidency. He should consider carefully the nature of the charges and the evidence before he dismisses his most loyal advisers.

Yeah. Don’t just willy-nilly dismiss Rove and Libby for lying to you, to the Grand Jury, to the prosecutor, to Scott McClellan, to numerous reporters, and to the public. Don’t fire them for suborning perjury. Don’t fire them for loyally outing an undercover CIA operative. After all, they are loyal. I hope the WSJ enjoys apologizing for this behavior. I hope they enjoy equating the falsification of intelligence to justify a war of aggression to a dispute about policy differences. I very much doubt a jury is going to see it that way.