- The Washington Times - Friday, March 9, 2007

If you want a textbook example of what is wrong about appointing a special prosecutor, the prosecution of White House aide Lewis “Scooter” Libby is a classic. Let’s go back to Square One to see how this sorry chapter in criminal law unfolded.

The charge that was trumpeted through the media was that the Bush administration had leaked the fact Joe Wilson’s wife worked for the CIA in retaliation against him for saying Saddam Hussein was not seeking uranium in Niger, contrary to intelligence reports cited as a reason for invading Iraq. Since there is a law against revealing the identity of a CIA agent, a great hue and cry went up for a special prosecutor to find and prosecute whoever leaked that information.

Some in the media gleefully anticipated seeing White House adviser Karl Rove, or perhaps even Vice President Dick Cheney, frog-marched out of the White House in handcuffs.

Attorney General John Ashcroft appointed a special prosecutor, Patrick Fitzgerald, to investigate these charges.

Here is where the story takes a strange and disturbing twist. Today we know what we did not know when it happened — namely, Mr. Fitzgerald discovered early on that the leaker was not any of the White House officials on whom suspicion was focused.

It was Richard Armitage in the State Department. Moreover, Joe Wilson’s wife had a desk job at the CIA and revealing that was not a violation of the criminal law.

In other words, there was no crime to prosecute and there was no mystery to solve as to who had leaked Mr. Wilson’s wife’s name to columnist Robert Novak.

At this point, a regular prosecutor would have decided that he had other things to do than to pursue an investigation of a nonmystery about a noncrime. But special prosecutors are different.

Patrick Fitzgerald insisted on keeping the investigation going for three years — and keeping secret the facts there was no crime involved and no mystery who leaked.

In this pointless investigation, it turned out some of Scooter Libby’s statements conflicted with the statements of some reporters. So Libby was prosecuted for perjury and obstruction of justice — and a Washington jury convicted him.

Not only did Libby’s recollections differ from that of some reporters, some of those reporters differed among themselves as to what had been said and some differed in their later testimony from what they had said in their earlier testimony.

The information about Joe Wilson’s wife was so incidental and trivial at the time that it is hardly surprising that it was not fixed in people’s minds as something memorable. Only later hype in the media made it look big.

With Libby handling heavy duties in the White House, there is no reason for his memory to be expected to be better than that of others about something like this — much less to convict him of perjury.

As for the payback conspiracy theory of a Bush administration-inspired leak because of Mr. Wilson’s opposition to the Iraq war, Mr. Armitage was not an Iraq war hawk and Mr. Novak opposed the war. They had no reason to discredit Mr. Wilson.

Even the term “leak” is misleading. In the course of a discussion, Mr. Novak simply asked Mr. Armitage why someone with no expertise like Joe Wilson was sent to Niger in the first place — and Mr. Armitage’s said he was sent at the suggestion of his wife, who worked at the CIA. Mr. Novak’s column was not about that fact but mentioned it in passing. From this the liberal media went ballistic with conspiracy theories that we now know were totally false.

A man’s life has been ruined because his memories differed from that of others — whose memories also differed among themselves — and media liberals exult as if their conspiracy theories had been vindicated.

More important, how are we to expect highly qualified people, with far better options than a government job, to risk being put through the Washington meatgrinder because of politics, media hype and special prosecutors who can create crimes in the course of an investigation, when there was none to begin with?

Thomas Sowell is a nationally syndicated columnist.

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