- The Washington Times - Monday, March 12, 2007

It’s hypocrisy season in Washington. No, not that there’s an unusually great amount of posturing and flagrant contradiction of previously stated principles that are no longer politically expedient. The amount of that in Washington is consistently high. I mean that allegations of hypocrisy are in the air, thanks to the guilty verdicts in the Scooter Libby trial.

Specifically, the question is whether Mr. Libby should receive a pardon from President Bush, and how your answer to this question happens to square with your view of Bill Clinton’s lies to the court in civil proceedings and before the Kenneth Starr grand jury. Can you in all consistency support letting Mr. Libby off the hook, having favored the impeachment and removal from office of Mr. Clinton? Can you in all consistency have maintained that Mr. Clinton was being railroaded while wanting to see Mr. Libby in the slammer?

But that’s different, both sides maintain. Mr. Clinton was just lying about sex, which is what you do when you are fooling around, whereas Mr. Libby was lying in an effort to cover up a White House attempt to discredit an administration critic, an abuse of power and position. Or, Mr. Clinton actually told premeditated lies to the grand jury in the context of having mustered his entire administration in defense of his deception, whereas Mr. Libby plausibly claims that his problem was a faulty memory.

Or, how about this? The mushrooming independent counsel investigation into Mr. Clinton was politically motivated from the beginning, whereas the Patrick Fitzgerald investigation began with a legitimate CIA referral to the Justice Department over a serious national security matter, which the Justice Department appropriately decided to send to a special counsel in order to insulate an investigation into high-level White House misdeeds from potential political pressure.

In the alternative, Mr. Starr was following evidence of criminality where he found it, leading to (among other things) his conviction of Clinton crony Webb Hubbell, the No. 2 official at the Justice Department, for stealing from his clients and partners at the Rose Law Firm, whereas Mr. Fitzgerald knew from the start of his investigation who the leaker was, whom he did not charge. There was therefore no crime for him to investigate, and he should have could closed shop then rather obsessing over a supposed White House plot he could never find evidence for.

There is often a paradox to the charge of hypocrisy, namely, in many instances the person leveling it is acting just as hypocritically in making the charge as the person he or she is accusing. If I call you a hypocrite for defending Bill Clinton but wanting Mr. Libby to do jail time, there would seem to be a problem for me if I thought Mr. Clinton needed to be held accountable then. And, of course, vice versa.

As it happens, however, there is a case for this sort of hypocrisy. It goes to the role partisans play in policing the conduct of their own side. In general, Republicans don’t get to decide for Democrats when a Democrat is disgraced, and Democrats don’t get to decide for Republicans. That’s a decision Democrats make for Democrats and Republicans make for Republicans. You won’t find many Democrats who thought Mr. Hubbell was A-OK, nor will you find many Republican defenders of Jack Abramoff. They looked pretty guilty not just to members of the other party but to their own side.

Other cases are different, and it is not unreasonable for one side to see a political agenda where the other sees pursuit of justice. I think the Libby case and the Clinton case are both examples, as was the Iran-Contra investigation. The fact that the political defense mounted by partisans in each case may entail a certain amount of hypocrisy is preferable to a perfect consistency that leaves members of your side undefended in the face of matters that are, at least at some level, political disputes.

But if it’s consistency you want, I can help. First, I don’t like independent counsel investigations and never have. They are extra-constitutional in empowering an unaccountable official, and the independence combined with the high political profile of such cases consistently gives rise to prosecutorial excess.

Second, you shouldn’t lie to grand juries, and if you get caught doing so, you need to pay a price. I’m not going to second-guess the jury verdict in the Libby case any more than I was willing to entertain Mr. Clinton’s exculpatory comment that it depends on what the meaning of “is” is.

Third, before leaving office, Mr. Bush should pardon Mr. Libby. That judgment is consistent with the argument I made in the Weekly Standard in May 2000 that if legal proceedings were still pending against Bill Clinton when he left office, a real possibility, his successor, whether George W. Bush or Al Gore, ought to end the matter by issuing a pardon.

Mr. Clinton was impeached, only the second president to bear that mark; Mr. Libby’s life and career have been upended. Both matters were thoroughly drenched in politics, and enough is enough.

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