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Fitzgerald's Moment

He doesn't have to indict anyone.

Oct 31, 2005, Vol. 11, No. 07 • By WILLIAM KRISTOL
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AS I WRITE, ON Friday afternoon October 21, no one outside special counsel Patrick Fitzgerald's office--and perhaps not even Fitzgerald himself--knows what, if any, charges he'll ultimately bring in the Valerie Plame leak inquiry. Public understanding of the events in question--the disclosure of Plame's identity as a CIA operative, and any possible perjury or obstruction of justice that might have ensued--remains radically incomplete.

So let us stipulate this: If someone knowingly made public the identity of a covert CIA operative and compromised her status, whether to maliciously damage her career, to punish her husband, or to deter criticism of the White House--if, in other words, someone violated the Intelligence Identities Protection Act of 1982--that person deserves to be fired and prosecuted. If individuals purposefully lied to a grand jury or engaged in a knowing conspiracy to cover up the truth, those persons deserve to be fired and prosecuted. Fitzgerald's investigation may well have uncovered crimes like these.

But it may not have, too. Press reports suggest that Fitzgerald is unlikely to bring charges under the Intelligence Identities Protection Act of 1982, the original act whose possible violation he was charged with investigating. Based on what we know, and absent startling revelations, it would seem to be a huge prosecutorial overreach to bring charges under the 1917 Espionage Act. So we are presumably left with possible instances of perjury, obstruction of justice, and false statements to the FBI or the grand jury.

And here is the point: Unless the perjury is clear-cut or the obstruction of justice willful and determined, we hope that the special prosecutor has the courage to end the inquiry without bringing indictments. It is fundamentally inappropriate to allow the criminal law to be used to resolve what is basically a policy and political dispute within the administration, or between the administration and its critics. One trusts that the special counsel will have the courage after conducting his exhaustive investigation to reject inappropriate criminal indictments if the evidence does not require them, no matter how much criticism he might then get from the liberal establishment that yearns to damage the Bush administration through the use of the criminal law.

And I will go out on a limb to say this, based on the very limited information one can glean from press accounts: It seems to me quite possible--dare I say probable?--that no indictments would be the just and appropriate resolution to this inquiry.

I say this knowing that administration officials may have engaged in behavior that is not altogether admirable. I say this knowing that legions of Clinton defenders will complain that conservatives were happy to support the impeachment of a president for lying under oath seven years ago. My response to the second charge is that if anyone lied under oath the way Bill Clinton did--knowingly and purposefully in order to thwart a legitimate legal process, or if anyone engaged in an obstruction of justice, the way Bill Clinton did, then indictments would be proper. What is more, the Clinton White House mounted an extraordinary--and successful--political campaign against the office of the independent counsel and the person of Kenneth Starr. All the evidence suggests that the Bush White House has been fully cooperative with, even deferential to, the Fitzgerald investigation. And as for the first point, many people in government and politics engage in behavior that is less than admirable. That said, defending one's bosses against criticism, and debunking their attackers, is not a criminal conspiracy. Spin is not perjury. Political hardball is not a felony.



The New York Times reported on Friday that sources say Fitzgerald "will not make up his mind about any charges" until sometime this week, the final week of grand jury proceedings. We trust that Fitzgerald, who has an impressive record as a prosecutor, will call it as he sees it. A large part of any prosecutor's duty--especially that of a special counsel--is to have the courage and judgment to refrain from bringing charges when such charges would be inappropriate. With all of Washington abuzz this weekend over possible indictments of major Bush administration figures, but with the apparent grounds for those indictments seeming so shaky, we wonder if Fitzgerald might wind up surprising us all, including many at the White House: Maybe he will simply end his inquiry, having concluded that--whatever else may be said about the actions and motives of different figures in this long, unpleasant, and tortuous saga--no crimes were committed and no criminal indictments should be brought.



--William Kristol