Samuel Blumenfield proposes indicting Patrick Fitzgerald for obstruction of justice.

In January 2004, the Justice Department chose prosecutor Patrick Fitzgerald to investigate the leak of Valerie Plame’s identity. He became aware that the leaker was Armitage, who resigned from the State Department in November 2004 but remained a subject of the inquiry until February 2006 when Fitzgerald told him in a letter that he would not be charged. …

Why would the prosecutor keep this vital information from the president who had expressed concern over the outing of a CIA operative? Meanwhile, the liberal press hysterically speculated that it was Karl Rove and Vice President Cheney who most likely leaked Plame’s identity to the press.

Despite the fact Fitzgerald knew the source of the leak, he decided to go after reporters who refused to name their sources. Thus, Times reporter Judith Miller spent 85 days in jail for refusing to reveal her sources to the prosecutor. She was finally released when she agreed to testify before a grand jury.

So, why did Fitzgerald go after Scooter Libby, Vice President Cheney’s top aide? Apparently, Armitage had read a memorandum Libby had commissioned as part of an effort to rebut criticism of the White House by Joe Wilson. Who wrote the memorandum, and did it mention Valerie Plame? Was it the source of any leaks to the press? Apparently not, for it was Armitage who supposedly read the report and made the leak, not Libby.

Nevertheless, it was Libby who Fitzgerald decided to indict, and the jury found Libby guilty of perjury and obstruction of justice. But how could he have obstructed justice when it wasn’t Libby who outed Valerie Plame, but Armitage, who voluntarily admitted that he was the perpetrator of the so-called crime of outing a CIA covert agent?

If anyone has obstructed justice it is prosecutor Patrick J. Fitzgerald, who told Armitage to keep his mouth shut or face prosecution, did not tell the president who the leaker was and spent the taxpayers’ money in a costly prosecution against an innocent man.

Is it not a crime for a U.S. government official to deliberately withhold vital information from the president of the United States? Is it not a crime for a federal prosecutor to threaten a suspect with prosecution if he dared to make public his guilt?

When is the government going to indict Patrick J. Fitzgerald?

The Sun catches the New York Time editorial page engaging in characteristic hypocrisy.

The New York Times waited just hours after President Bush commuted the sentence of Vice President Cheney’s former chief of staff, I. Lewis Libby Jr., before issuing an editorial condemning the president’s decision. It puts the paper in the position of favoring a judge’s decision to impose a 30-month prison sentence on a person whose main crime, if there was one, stems from his effort to protect his ability to serve as a source for a New York Times reporter. Does the New York Times think its readers have forgotten the tenacious legal and public relations battle the paper fought to prevent the special prosecutor in the case, Patrick Fitzgerald, from wringing from its reporter Libby’s name? Or the stream of top executives from the paper who visited the reporter in jail while she was refusing to give up her source? …

The Times editorial made much of the supposed hypocrisy of the tough-on-crime right in supporting the decision to commute the sentence. It ran out its editorial under the headline “soft on crime,” though it has been soft on crime for years, save for when Republicans are in the dock. Its support for throwing a public official in jail for 30 months for the crime of trying to deflect attention from his having talked to a Times reporter, after going to the mat on behalf of the Times reporter’s right to keep the source’s name a secret — well, it’s a Times classic, one to make New Yorkers recognize that the hypocrisy in this case isn’t on the right wing.

Michael Goodwin, in the Daily News, takes the occasion of Hillary Clinton’s denunciation of George W. Bush commutation of the Libby prison sentence to do some remembering.

When President Bush commuted Libby’s prison sentence Monday, Sen. Clinton was quick to denounce him. Under Bush, she said, “cronyism and ideology trump competence and justice.” …

But when I stumbled on a list of Bill Clinton’s pardons posted on the Drudge Report, I was instantly back on Jan. 20, 2001. That’s when Clinton, in his final hours as President, opened the floodgates, issuing 140 pardons and 36 commutations.

The list of people Clinton let off the hook was a rogue’s gallery of drug dealers, petty criminals and the politically well-connected. One was Bill Clinton’s brother Roger, one was a college friend and another was a former business partner. Their lawyers’ connections were key in others, including the lawyer for a man who laundered more than $100 million for the Cali cartel.

Some cases reeked of blatant corruption. Hillary’s brother, Hugh Rodham, collected $400,000 from two big-time criminals who got pardons. When the news of the payments broke, the Clintons claimed surprise and demanded Rodham give the money back.

But Bill Clinton never gave Denise Rich her money back. The former wife of disgraced financier Marc Rich gave $450,000 to Clinton’s presidential library and raised and contributed more than $1 million to campaigns of the Clintons and other Democrats. Her husband, who had fled the country rather than fight charges of massive tax fraud and trading with Iran during the 1979 hostage crisis, suddenly received a pardon. “Utterly false,” Bill Clinton later said about charges he sold the pardon. “There was absolutely no quid pro quo.”

A friend of mine suggested that the best rejoinder to Hillary would be for the White House to issue a pardon to Hillary and Bill for any of the crimes during his governorship in Arkansas or during the Clinton presidency for which prosecutable evidence may yet one day emerge.

Orrin Kerr, at the Volokh Conspiracy, is puzzled by conservatives crying foul over the Plamegame prosecution.

..the claim, as I understand it, is that the Libby prosecution was the work of political enemies who were just trying to hurt the Bush Administration.

I find this claim bizarre. I’m open to arguments that parts of the case against Libby were unfair. But for the case to have been purely political, doesn’t that require the involvement of someone who was not a Bush political appointee? Who are the political opponents who brought the case? Is the idea that Fitzgerald is secretly a Democratic party operative? That Judge Walton is a double agent? Or is the idea that Fitzgerald and Walton were hypnotized by “the Mainstream Media” like Raymond Shaw in the Manchurian Candidate? Seriously, I don’t get it.

It’s simple enough. George W. Bush is an idiot.

Bush appointed Martha Stewart-prosecutor James Comey (no Republican, no conservative) Deputy Attorney General. Comey proved a thorn in the administration’s side on War on Terror policies, favoring kinder treatment for illegal combatants than he had for Martha, and making waves over the NSA’s Counter-Terrorism data-mining operation. Bush derisively referred to Comey’s liberalism with one of those nicknames he likes to confer, dubbing him “Cuomey.”

Bush then proceeded to mortally offend John Ashcroft by declining to keep him on as Attorney General in his second term. Ashcroft retaliated by recusing himself from appointing a prosecutor in L’Affaire Plame, placing thereby a loaded weapon in Mr. Comey’s eager hand.

Comey then gleefully appointed his pal Patrick Fitzgerald, a kindred spirit sharing every bit of Comey’s liberal politics and Inspector Javert-like lack of prosecutorial inhibitions, as special prosecutor.

If anyone has doubts that Fitzgerald is a thoroughgoing partisan, acting politically in service to the democrat party and the American left, one need only take note of the venues of release — Monday, July 2nd, 2007 at 5:32 pm, July 02, 2007 8:55 PM ET
(via staff email July 02, 2007 at 20:23) — of his rejoinder to the Bush commutation of Libby’s sentence.

We fully recognize that the Constitution provides that commutation decisions are a matter of presidential prerogative and we do not comment on the exercise of that prerogative.

We comment only on the statement in which the President termed the sentence imposed by the judge as “excessive.” The sentence in this case was imposed pursuant to the laws governing sentencings which occur every day throughout this country. In this case, an experienced federal judge considered extensive argument from the parties and then imposed a sentence consistent with the applicable laws. It is fundamental to the rule of law that all citizens stand before the bar of justice as equals. That principle guided the judge during both the trial and the sentencing.

Although the President’s decision eliminates Mr. Libby’s sentence of imprisonment, Mr. Libby remains convicted by a jury of serious felonies, and we will continue to seek to preserve those convictions through the appeals process.

And don’t forget that the unknown parties at the CIA who initiated a complaint with the Justice Department over the identification of the arranger of Ambassador Wilson’s junket to Niger starting the whole witch hunt also in theory work for President Bush.

It is precisely the combination of George W. Bush’s ill-advised appointments and complete failure to gain control of his own branch of government which made possible the creation of this contrived scandal in the first place.

Faced with the prospect of an innocent and decent man going to prison, George W. Bush did the right thing and commuted Lewis Libby’s sentence.

Evidently trying to conserve as much of that 27% public approval rating as he can, Bush allowed the fine and probation portions of the sentence to stand. Presumably he is counting on those of us who disapprove of L’Affaire Plame to step in with donations to spare the Libby family a quarter of a million dollar price tag for Mr. Libby’s public service. And, presumably also, come the morning of Hillary Clinton’s (or, I hope, Fred Thompson’s) Inauguration, while the Press is distracted, Bush will eliminate the conviction entirely with a pardon.

I would be happier if Bush had simply pardoned Libby, but I am willing to understand, and forgive, his caution. At least, Bush has proven that there is a fundamental residuum of humanity, decency, and loyalty in his character. He is not a complete shit.

Now, if he would only go over to the offensive and get us some revenge…

AP story.

Dorothy Rabinowitz, in the Wall Street Journal, compares Duke student prosecutor Nifong with Scooter Libby prosecutor Fitzgerald in A Tale of Two Prosecutors.

It was a noteworthy week on the justice front. Even as Mr. Nifong was facing ethics hearings in North Carolina, Scooter Libby’s attorneys came before trial Judge Reggie Walton, in Washington, to plead for a delay in the beginning of the 30-month sentence the judge had handed down. Special prosecutor Patrick Fitzgerald’s project — the construction of a major case of obstruction of justice out of a perjury rap against Mr. Libby — had come to a satisfactory conclusion.

For Mr. Fitzgerald, whose prosecutorial zeal and moral certitude are in no small way reminiscent of Mr. Nifong’s, the victory was complete with those two final judgments: the severe sentence for Mr. Libby, and the judge’s refusal, last week, to allow its postponement pending appeal. The prosecutor’s argument for a heavy sentence emphasized Mr. Libby’s alleged serious obstruction of justice — a complicated effort, considering that there was no underlying crime, or evidence thereof, and that this case, which had begun in alleged pursuit of the leak of a covert agent’s identity was, as the prosecutor himself would finally contend, not about that leak at all.

Just what serious obstruction of justice Mr. Libby could have been guilty of, then, was, at the least, a heady question, though not one, clearly, that raised any doubts in the judge. Neither did Mr. Fitzgerald’s charge — also in pursuit of a heavy sentence — that the defendant had caused, by his obstruction, no end of trouble and expense in government effort.

The obligation to truth, the prosecutor argued, was of the highest importance, and one in which Mr. Libby had failed by perjuring himself. It would be hard to dispute the first contention. It is no less hard to avoid the memory of Mr. Fitzgerald’s own dubious relation to truth and honesty — as, for example, in his failure to disclose that he had known all along the identity of the person who had leaked the Valerie Plame story. That person, he knew, was Richard Armitage, deputy to Colin Powell. Not only had he concealed this knowledge — in what was, supposedly all that time, a quest to discover the criminals responsible for the leak of a covert agent’s name — he had instructed both Mr. Armitage and his superior, Colin Powell, in whom Mr. Armitage had confided, not to reveal the truth.

Special prosecutor Fitzgerald did, of course, have a duty to keep his investigation secret during grand jury proceedings, according to the rules. He did not have the power to order witnesses at those proceedings not to disclose their testimony or tell what they knew. Instead, Mr. Fitzgerald requested Messrs. Armitage and Powell to keep quiet about the leaker’s identity — a request they understandably treated as an order. Why the prosecutor sought this secrecy can be no mystery — it was the way to keep the grand jury proceedings going, on a fishing expedition, that could yield witnesses who stumbled, or were entrapped, into “obstruction” or “lying” violations. It was its own testament to the nature of this prosecution — and the prosecutor. …

The prospects for Mr. Libby’s success in an appeal hinge on three points, two concerning the court’s refusal to allow the defense to present certain witnesses. The other potentially powerful issue relates to Mr. Fitzgerald. The Special Prosecutor was given, on his appointment (by his long-time friend, acting Attorney General James Comey) a remarkable freedom from accountability to any higher authority or Justice Department standards. This unique freedom was made explicit in his appointment letter. Such unparalleled lack of control, the appeal will argue, is a violation of the principle of checks and balances.

However it comes out, both the case mounted against Mr. Libby, and the sentence delivered, have plenty of parallels. It is familiar stuff — the fruits of official power run amok in the name of principle and virtue — and it’s an ugly harvest. Mr. Libby is another in the long line of Americans fated to face show trials and absurdly long sentences — the sort invariably required for meritless prosecutions.

There was at least one bright spot in the events of the last week, specifically, Mr. Nifong’s removal from office — a case, at long last, of a prosecutor called to account. It will be some while we can guess, before any such wheels of justice grind their way to the special prosecutors.

How can a prosecutor be permitted to convict a defendant of obstruction of justice without first proving any crime had ever been committed? How can a defendant be possibly be convicted of perjury for allegedly misleading the prosecutor about the identity of Robert Novak’s informant which the prosecutor already knew and did not need to inquire about?

AP reports that Judge Walton has turned down Lewis Libby’s attorneys’ request for a prison delay to allow for appeal.

A federal judge said Thursday he will not delay a 2 1/2-year prison sentence for I. Lewis “Scooter” Libby, a ruling that could send the former White House aide to prison within weeks.

U.S. District Judge Reggie B. Walton’s decision will send Libby’s attorneys rushing to an appeals court to block the sentence and could force President Bush to consider calls from Libby’s supporters to pardon the former aide.

No date was set for Libby to report to prison but it’s expected to be within six to eight weeks. That will be left up to the U.S. Bureau of Prisons, which will also select a facility.

Now we will have a chance to see what George W. Bush is made of. Will he allow a loyal subordinate to serve actual prison time as the result a ridiculous, purely partisan criminalization-of-policy-disputes affair which he himself could have, and should have, prevented ever occurring in the first place?

If he does that, conservative Republicans should withdraw their support from such a president.

The ineffable David Broder thinks Scooter Libby’s 30 month sentence may have been the result of an unreasonable prosecutorial vendetta, but he still believes that this kind of injustice is nonetheless salutory in affirming the principle that anyone –at least any Republican– can be a victim of our legal system, and as a warning to inner city youth to avoid public service.

Quick! someone on the left tell me again why Bill Clinton’s perjury should not have served as an occasion for the reaffirmation of the universality of the Rule of Law and as an edifying and instructive example of crime and punishment for the young.

And exactly what lesson does the comparison of Sandy Berger’s wrist slap of a $10,000 fine, increased to $50,000 by the judge + two years probation and 100 hours of community service to Scooter Libby’s $250,000 fine + 30 months teach?

Despite the absence of any underlying crime, Fitzgerald filed charges against Libby for denying to the FBI and the grand jury that he had discussed the Wilson case with reporters. Libby was convicted on the testimony of reporters from NBC, the New York Times and Time magazine — a further provocation to conservatives.

I think they have a point. This whole controversy is a sideshow — engineered partly by the publicity-seeking former ambassador Joseph Wilson and his wife and heightened by the hunger in parts of Washington to “get” Rove for something or other.

Like other special prosecutors before him, Fitzgerald got caught up in the excitement of the case and pursued Libby relentlessly, well beyond the time that was reasonable.

Nonetheless, on the fundamental point, Walton and Fitzgerald have it right. Libby let his loyalty to his boss and to the administration cloud his judgment — and perhaps his memory — in denying that he was part of the effort to discredit the Wilson pair. Lying to a grand jury is serious business, especially when it is done by a person occupying a high government position where the public trust is at stake.

Knowing Judge Walton a bit, I was certain that he would never be party to allowing a big shot to get off more easily than any of the two-bit bad guys who used to show up in his courtroom for sentencing. When he goes to his next school session, he wants to be able to tell those young people that no one is above the law — and mean it. You see, Walton is not just in the business of enforcing the law. He is also committed to steering youths in the right direction. This case will help.

Over at National Review’s The Corner, those jolly little tricoteuses Andrew McCarthy and John Derbyshire were having a pleasant time chatting yesterday as Scooter Libby’s tumbril rolled by.

McCarthy was conflicted because he has friends on both sides (!), and besides he just wasn’t sure that Libby wasn’t really guilty after all. After all, the prosecutor, the New York Times, many of his friends, and a DC jury all said so.

Witnesses have varying recollections, and juries sort it out. The evidence that Libby lied, rather than that he was confused, was compelling.

And class-warrior John Derbyshire just couldn’t see getting bent out of shape over the fate of somebody like Libby.

..compare the likely plights of Libby and the two Border Agents.

When state power rolls over little people like Compean and Ramos, my sympathies are stirred. Libby’s not a little person. He’s rich and terrifically well-connected. He’s not going to get beaten up in jail (as Ramos has been). He’ll have plenty of lucrative work opportunities after release. He will… be all right.

I wish the world were free of wrongs, but it isn’t, and never will be. In the scale of wrongs, and consequent suffering, that I read about every day, this one doesn’t seem worth bothering with.

Meanwhile Susan Estrich, speaking from the left, no less, took a considerably more intellectually and morally responsive position.

I suppose I should be pleased about the tough sentence handed down by Judge Reggie Walton, sentencing the vice president’s former Chief of Staff Scooter Libby to serve 30 months in prison. After all, he’s a Republican, and I’m a Democrat; I’m an opponent of the war, and he worked for one of its architects. I’m certainly no fan of his boss, Dick Cheney, one of the toughest hardball players to occupy the office of vice president. Former Ambassador Joe Wilson was practically gloating this morning when asked to comment on the sentence, declaring it a victory for the rule of law.

Maybe.

Having taught law for more years than I want to count anymore, and criminal law in particular, I know all the arguments about how the rule of law depends on everyone telling the truth, cooperating with criminal investigations, not trying to protect their bosses or those around them. I understand that people in high places have as much responsibility, or more, than the rest of us to follow the law and give their evidence, and that when they don’t, their years of public service are no excuse.

Being chief of staff for the vice president is a bruising job, but also an exciting one. If Scooter Libby hadn’t messed up, he’d be sitting pretty in a high-priced law firm right now, making a fortune not because his legal skills were better than anyone else’s, but because his contacts and connections were. So with the good goes the bad; with the visibility goes the scrutiny; with the fame comes the price. Valerie Plame’s career has been ruined. Why shouldn’t his be?

The only problem here is that there was no underlying crime. The answer to the question Special Prosecutor Patrick Fitzgerald was initially appointed to investigate — had anyone violated the law in disclosing Ms. Plame’s name in their effort to discredit her husband’s criticism of the administration’s war policy — was no. No one violated what we used to call the “Agents Law.” Dick Armitage, the guy who admits he gave out her name in the first place, isn’t facing time; nor are Karl Rove, Dick Cheney, or any of the reporters or news organizations who didn’t hesitate to disclose her identity.

Libby is in trouble not for what he did, but because he wasn’t as careful as the others during his interviews and grand jury testimony.

If he’d just said, “I don’t recall” a hundred times, or even invoked the Fifth (whether properly or not, following the Monica Goodling approach), he wouldn’t be bankrupt, ruined, disgraced and heading to prison.

There is something troubling about prosecutors using perjury and obstruction of justice to turn into criminals people who haven’t committed any other crime. Instead of using the grand jury as a tool for investigating other criminal activity, it becomes the forum for creating criminal conduct. The role of the FBI and federal prosecutors becomes one of creating criminals instead of catching them. Technically, I know, it’s not entrapment, but it’s still different than the usual business of tracking down those who have violated the law and punishing them for their bad acts. The investigation doesn’t solve the crime; it creates it.

This time it was a pro-war Republican caught in the snare, which is why many liberals are cheering. But what goes around comes around, and I wonder if my friends would feel the same way if this technique were used to indict, convict and imprison one of our friends.

Not a good day for the NR punditocracy.

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Hat tip to David L. Larkin.

Charles Johnson accurately describes the left blogosphere today as “smirking and gloating like evil children.”

Jules Crittenden sums up reaction to Libby’s sentencing left and right best.

AP:

Former White House aide I. Lewis “Scooter” Libby was sentenced to 2½ years in prison Tuesday for lying and obstructing the CIA leak investigation. …

“People who occupy these types of positions, where they have the welfare and security of nation in their hands, have a special obligation to not do anything that might create a problem,” U.S. District Judge Reggie Walton said. …

The White House said that President Bush feels “terrible” for Libby and his family, but does not intend to intervene now. …

Walton fined Libby $250,000 and placed him on probation for two years following his release from prison. Walton did not immediately address whether Libby could remain free pending appeal.

Bush is not really on the spot, unless Judge Walton refuses to allow Mr. Libby to remain free pending appeal.

I would think myself that there is every reason to suppose that an appeal would be successful.

If Libby really does face imprisonment, and George W. Bush does not pardon him, regardless of the political cost, my own view is that Mr. Bush will have irretrievably disgraced himself.