Saturday, October 22, 2005

Conason's Bizzaro Scandal
The Strange Imaginings and Projections of a Not-So-Ex-Clinton Shill

In a recent article Joe Conason accuses Republicans and allies of a smear campaign against Patrick Fitzgerald, the Special Prosecutor in the Plame Leak Case. Let's take a closer look, shall we?

With the mounting anticipation that Bush administration officials will be indicted in the CIA leak investigation, we have arrived at the stage that was always inevitable: a wave of preemptive attacks on special counsel Patrick Fitzgerald and his expected prosecutions.

Hmmm. Sounds ominous. Let's consider, before getting into the meat and potatoes of the article, what a minimumly sufficient case for such a proposition would consist of. First, we're going to need to see *attacks* on Fitzgerald. One would expect quotes deliniating at least a few such attacks to justify even writing the article. Second, given that Conason accuses Republicans and compatriots of orchastrating this attack, we should expect these quotes to come from at least semi-promnient Republicans and conservatives. Such as, say, columnists like Charles Krauthammer or the folks at National Review along with Republican officials...either party leaders (Ed Gillespie), congressmen (Bill Frist), or executive officials (Scott McClellan). Certainly that's what we saw in the Clinton years, when concerted attacks on Starr were conducted by pundits like Joe Conason and White House flaks like Joe Lockheart. Well, enough preamble. On to the Fisking!
While the attackers have various motives, their arguments tend to share the same specious themes: that the special counsel has "run amok"; that he is pursuing the "criminalization of politics"; that no crimes were committed except possibly in covering up administration misbehavior, which supposedly are not crimes worth prosecuting; and that Fitzgerald is somehow comparable to Kenneth W. Starr, the Whitewater independent counsel whose gross abuse of his office led to its abolition.

First, while Conason suggests that 'various motives' exist, the only motive he explicitly states (several times) is partisanship. IOW, this is a Republican attack on the president by party hacks and, one would expect, conservatives in the media. However, the arguments that he mentions above, the supposed 'specious' attacks on Fitzgerald, don't have much to do with attacking the Special Prosecutor. Let's take them in turn. He doesn't cite either of the two unattributed quotes above, so we'll have to do a little researching. A google of "run amok" and Fitzgerald doesn't produce any references to the special prosecutor, rather it is apparently a nick name attributed to Judith Miller, the woman Fitzgerald put in jail for contempt. Apparently she dubbed herself "Little Miss Run Amok" at one point. That doesn't seem to have much to do with Conason's argument.

The second 'specious' argument referenced is nothing but a straw man. I have neither seen nor read any conservative arguing that actual obstruction of justice should be ignored or not prosecuted. Several conservatives have certainly argued that 'obstruction of justice' is often the last resort for a case that hasn't succeeded on the particulars...but implicit to that argument is that there wasn't any real or substantial obstruction in the first place. And it is important to note, we get no quotes from anyone directing some attack on Fitzgerald suggesting he has brought obstruction charges for political purposes. Probably because no one has actually argued that.

Turning to the other quotation, at least we find something somewhat familliar. It appears to reference the Bill Kristol article entitled "Criminalizing Conservatives." Kristol does mention Fitzgerald:
White House deputy chief of staff Karl Rove and vice presidential chief of staff Scooter Libby have been under investigation by a special federal prosecutor, Patrick Fitzgerald, for more than two years. When appointed in 2003 by the Bush Justice Department, Fitzgerald's mandate was to find out if the leaking to reporters of the identity of a CIA employee, Valerie Plame, was a violation of a 1982 statute known as the Philip Agee law, and if so, who violated it. It now seems clear that Rove and Libby are the main targets of the prosecutor, and that both are in imminent danger of indictment.

Gee. Call me crazy, but that sounds to me like a simple recitation of the facts. This is the only reference to Fitzgerald in the entire article, the thrust of which is noting the pattern of highly successful (in terms of operating the electoral machinery) Republicans being investigated for crimes (which includes the Delay and Frist investigations). Well, you say, that's an implicit attack on Fitzgerald. The problem with that line of argument is that Fitzgerald isn't responsible for initiating the investigation. Indeed, he is responsible only for conducting it. The primary criticism leveled in the Kristol piece is the initiation of the investigation itself:
In today's Washington, as has been true for decades, classified information is leaked by many different players in any given policy fight in the government. The Bush administration has been replete with leaks of presumably classified information. Is the identity of Valerie Plame the most consequential leak of the last four years? Are Rove and Libby bigger leakers than, say, the CIA's George Tenet or Richard Armitage at the State Department? Do no employees of the Central Intelligence Agency (almost universally anti-Bush and anti-conservative) ever leak anything? If so, have they been indicted, or investigated by a special prosecutor? Any prosecutor?

Kristol is making the argument that the subject of the investigaiton is routine politics and shouldn't rise to the level of a crimminal investigation. Since Fitzgerald has no role in that, it is difficult to imagine how that would constitute a partisan attack on Fitzgerald. Furthermore, Kristol offers the caveat that "we don't pretend to have all the answers, or a solid answer even to one of these questions." This hardly strikes as some attack piece on Fitzgerald.

The last charge is all we are left with where we have any kind of substantial criticism of Fitzgerald himself. The suggestion that Fitzgerald is as out-of-control and partisan as Kenneth Starr. But that should strike a false note for the relatively informed observer. Most Republicans and conservatives do *not* think that Ken Starr was out-of-control or partisan in carrying out his duties as independent counsel. Hence, it would be an odd argument for Republicans and their allies to make. Well, if that's what they are doing then that's what they are doing. Let's see whether Conason substantiates the charge.

One egregious bit of misinformation cannot go unmentioned. Joe Conason actually attempts to suggest that some widespread perception of gross 'abuse' on the part of Ken Starr in his role as independent counsel let to the law being abolished. This is abject nonsense. The independent counsel statute was abolished because Republicans took control of Congress. Republicans never supported the independent counsel, seeing it as an unconstitutional interference with the executive branch (basically abrogating the power of the Attorney General). Now, certainly bi-partisan support for its abolition was secured in 1999, when it was not re-authorized, as the Democrats suddenly found that their favored stick to poke Republican administrations with could be turned on Democratic administrations just as well. Apparently the goose being good for the gander didn't sit too well with them. Be that as it may, the I.C. statute certainly did not terminate because of Democratic objections to Starr. They didn't have the votes. The statute died because Republicans didn't like it...and they had *never* liked it. Indeed, Ken Starr *himself* argued against reauthorization of the statute. It is hard to believe that Joe Conason isn't aware of this.
To anyone familiar with the most basic facts about Fitzgerald's prosecution, the quarreling with him and his methods simply sounds stupid. Do the Republican partisans who claim that he is running a "political" investigation realize that John Ashcroft's deputy appointed him? Do those same Republicans remember that the president endorsed his appointment and the purposes of the investigation? Do they know that the original demand for an investigation came from former CIA director George Tenet?

What quarreling? Conason has yet to cite any. What Republican partisans? Again, nothing to substantiate the charge. I imagine that those Republicans, if they existed, would answer: yes, yes, and yes and then follow it up with a "so what." For a guy writing about the Republican response to the investigations, Conason seems to be woefully underinformed as to the substance of that case. Particularly his last rhetorical question is puzzling. The case made by a variety of conservatives and Republicans regarding the Plame case is that its origins can be found (as we saw above with Kristol's comment) in the policy dispute between the CIA and the White House over the Iraq war. Indeed, the 'leak' stemmed out of an effort by the White House to respond to the anti-war arguments of the CIA parroted by Wilson in his NY Times op-ed. Stephen Hayes recounts the history of the CIA anti-Iraq war campaign here. What is strange isn't that Conason would have some dispute with this, but that he seems completely unaware of it. Of course the critics of the Plame investigation know that CIA called for it. That's a big part of their criticism of it. And, indeed, it is that point that undermines the previous two questions that Conason asks. Yes the A.G. appointed Fitzgerald and the President endorsed the appointment. Under heavy political pressure from the CIA and the media (particularly the NY Times). As Hayes recounts here:
Three days later, Robert Novak wrote a column in which he named Joseph Wilson's wife, "CIA operative" Valerie Plame. Novak sourced this information to "two senior administration officials." The CIA concluded that the reference had compromised Plame's undercover status and asked the Justice Department to investigate. On December 30, 2003, Attorney General John Ashcroft recused himself in the matter, and Deputy Attorney General James Comey named U.S. attorney Patrick Fitzgerald special prosecutor. Scores of administration officials and some journalists have testified before the grand jury. It was for initially declining to testify that New York Times reporter Judith Miller spent 85 days in jail. The conclusion of the investigation appears imminent.

It was the CIA that requested the investigation. Perhaps Conason is under the rather naieve impression that, since the CIA is an executive agency, it must be in lock-step with the president. But as Hayes clearly illustrates, this was exactly the opposite case when it came to the Iraq war and the events surrounding the Plame leak. Back to Conason:
Having ascertained that someone probably had committed a crime by leaking Valerie Plame Wilson's CIA identity to Robert Novak and other journalists, the agency repeatedly asked the Justice Department to investigate. Eventually the department opened a case, but after three months and under intense criticism, Attorney General Ashcroft recused himself and asked his deputy to appoint a special counsel. Fitzgerald, already an appointee of the Bush administration as the U.S. attorney for the Northern District of Illinois, accepted the job when asked.

This is mostly accurate (rather surprising, considering the rest of the article), however, these facts don't seem to clue Conason in on how it clearly undercuts his previous argument. If the White House was dragged into appointing a special prosecutor, kicking and screaming, then you can't turn around and use the fact that they did so and approved of Fitzgerald as evidence that the investigation is justified and apolitical. You can't have it both ways. Either the administration and the justice department were on board with the necessity of this investigation, or they were forced into authorizing the investigation through political pressue from the CIA and the media. I believe the latter to be the case, but that clearly means that Conason doesn't have a leg to stand on in his previous bewilderment.
So whatever damage Fitzgerald may ultimately do, he is not an independent counsel unleashed by opposition forces to bring down the Bush administration. The president has endorsed his integrity and competence, and no one has uncovered a hint of a political motive or any conflict of interest.

Clearly Conason is conflating two distinct issues. As should be clear by now, the question as to whether the investigation itself was politically motivated, where opponents of the president's Iraq policy in the CIA and in the media pressured the administration into appointing a special prosecutor, is seperate from the question of whether Fitzgerald himself is motivated by partisanship or some other bad motive. Indeed, Conason again undercuts his own argument by noting that the president, unlike Clinton, has not waged a media campaign of personal destruction against the S.P.
The comparisons between Fitzgerald and Starr sound especially bizarre coming from pundits who failed to criticize the Whitewater prosecution back when their dissent might have mattered. In Slate, for instance, Jacob Weisberg accuses Fitzgerald of "Ken Starr-style foolishness" that may lead to "creative crap charges" -- presumably meaning indictments for perjury, conspiracy or obstruction of justice. And New York Times columnist John Tierney retrospectively criticizes the weakness of Starr's case against Bill Clinton.

Ah. Finally some *real* quotes with some actual names! The only problem, well, we were looking for quotes from Republicans and/or conservatives who were part of an orchestrated partisan attack on the special prosecutor. Who do we get? We get John Tierney, a NY Times reporter (no conservative or Republican by a long shot) and Jacob Weisberg. Yes, *that* Jacob Weisberg. The editor of Slate. The former writer for the New Republic. The author of the Complete Bushisms. Jacob Weisberg is part of a Republican cabal to engage in a partisan attack on a legitimate investigation of the Bush administration? You might as well tell me Bill Sammon is in league with Bill Clinton to cover up his latest sex scandal. Puh-lease.
My recollection is that Weisberg -- and others like him who now complain so bitterly about Fitzgerald -- voiced few criticisms of Starr or the Whitewater investigation. My additional recollection is that many of these same writers felt we simply must learn the "truth" about the ancient Arkansas land deal, even though it had nothing whatsoever to do with Clinton's presidency, national security or weapons of mass destruction, and therefore Starr's unpleasant methods, such as indicting various people on "creative crap charges" that had nothing to do with Whitewater, had to be accepted.

From the look of this article, Joe Conason's recollections leave much to be desired. Not that we should have to rely on them in the first place. This is journalism? Are we to believe that Joe Conason keeps a mental catalog of what every journalist in the national media had to say about the Starr investigations? Even if you could level a charge of hypocrisy against Weisberg and Tierney (a charge that Conason completely fails to substantiate), what would that mean? They still wouldn't belong in an article purporting to show a concernted effort on the part of Bush allies to smear the special prosecutor. Well, I did for my blog post what Joe Conason failed to do for his nationally distributed and published article: I did a bit of research on what Weisberg had to say about Ken Starr:
"From a moral perspective, none of the players in Clinterngate looks very savory at the moment. Clinton, Lewinsky, Jordan, Starr, Bennett, Jones, Lucianne Goldberg--all present profiles of weakness, stupidity, ruthlessness, and venality in various degrees and combinations. They have a lot to answer for--as I expect they all will one day, probably in ghostwritten books of the kind that flooded the market after Watergate.
But there is one character in the drama who strikes me as a villain of potentially Shakespearean proportions. That character is Linda Tripp."

Gee, somehow Mr. Weisberg doesn't sound like a fan of Ken Starr or his investigation in that post. Indeed, Jacob Weisberg asserted, in 1998 on "All Things Considered" on NPR, that no proof of serious crimes committed were found in any of the 7 on going investigations into the Clinton administration. Indeed, of Clinton Weisberg once stated that he [Clinton] had been more "faithful to his word than any other chief executive in recent memory." It is quite telling that Conason's only quotes of anyone comparing Judge Starr to Fitzgerald are two liberal Democrats. Conason admits that he doesn't know what Tierney's position on Starr was except that he didn't write much about it (this, in Conason's mind, means that Tierney was a supporter of Starr's investigation).
Tierney had little to say about Starr or Whitewater, except for occasional smirking asides about the Monica Lewinsky scandal. He certainly never exhibited any deep concern about the excesses of the independent counsel back then. Like so much of the whining that now emanates from Republican quarters about political prosecutions and prosecutorial excess, Tierney's complaint reeks of bad faith.

As we can see, no evidence whatsoever to back up Conason's recollections. And "bad faith"? The only 'bad faith' evident is that emanating from the guy who engaged in a concerted attack on an appointed prosecutor during the Clinton administration...but now can't get enough of em now that we have a Bush administration. Indeed, the only shill to be found in this entire article is the author, who continues to spread the Clinton-spin on the Starr investigations even now. Heck, even most of the Nixon boys had had their come-to-Jesus moment by the second administration post-Watergate.
Yet an honest comparison with Starr is actually a useful exercise, if only because it helps to illustrate the phoniness of the grievances against Fitzgerald.

I agree. Let's have an honest accounting of the Starr investigation.
Starr was appointed by Republican judges, under the dubious influence of Republican Sens. Jesse Helms and Lauch Faircloth. He had no prosecutorial experience and proved to be an inept partisan. His investigation meandered repeatedly into new areas far afield from his original brief, took nearly five years to complete, required many grand jury extensions, and cost approximately $70 million. Starr and his prosecutors leaked promiscuously to favored reporters throughout the probe, thereby ensuring favorable press coverage and inflicting political damage on their White House targets.

Almost all of the above is either an outright falsehood or a gross distortion of the truth. Starr was appointed by a panel of judges set out *by law* to administer investigations under the independent counsel statute. Remember, the whole point of the independent counsel statute was to remove the decision to investigate the executive out from under the auspicies of the Attorney General in the wake of Watergate. Judge Sentelle, who presided over the panel during the Starr investigations, describes the selection process here. Stentelle is only a 'Republican' judge in the sense that he was appointed by a Republican president. By that standard, John Paul Stevens and David Souter are both "Republican justices." And, by the way, a Democrat-appointed judge also sat on that panel and approved the appointment of Judge Starr. Conason attempts to, at this late date, suggest the Starr apointment was always controversial and obviously partisan. But that simply does not comport with the facts. It wasn't until the Clinton machine rolled out its attacks on Starr *while* he was conducting his investigation (indeed, when they did, in fact, what Conason imagines the Bush admin is doing) that Starr suddenly was an incompetent and polarizing partisan.

Conason's attempt to suggest that Starr wasn't qualifed to serve as Independent Counsel because he hadn't been a prosecutor is, frankly, laughable. Ken Starr had served as a federal judge, Solicitor General, and a clerk on the Supreme Court. Ted Olson makes a good case for Ken Starr's appointment here. He is, frankly, one of the best legal minds in the country, and, until taking on the I.C. job, was considered to be on the short list of potential Supreme Court nominees. It is nothing short of hilarious to commit to the notion that Judge Starr was capable of sitting in judgement of prosecutions on the federal bench and argue the government's case before the Supreme Court...but not qualified to serve as an independent counsel. Indeed, Judge Starr enjoyed bi-partisan support and had his objectivity praised across the asile. It was that reason that Starr was chosen to handle the extremely sensitive matter of the Packwood diaries.

Conason accuses Starr of 'drifting' into areas that didn't involve his original charge (i.e. Whitewater). For a guy who wrote a book on the Starr investigations, you would think he would prove a bit better informed. As Judge Sentalle mentions above, there are only two ways for the jurisdiction of an I.C. to expand: referrals related to his current charge, and the express expansion of that jurisdiction by the Attorney General. Indeed, it was Attorney General Janet Reno who expanded Judge Starr's investigatory jursdiction, as can be seen here. Conason mentions the cost of the investigation, but seems to ignore the fact that this figure lumps *all* the investigations Starr handled as independent counsel (much more than previous counsels). He also ignores the fact that of the 17 independent counsels appointed under the statute, unlike Starr, 10 failed to secure any convictions. Ken Starr, in fact, was one of the more successful Independent Counsels of its short-lived existance.

Conason's charge of Starr investigation leaks is unsubstantiated. Of course, Fitzgerald's office has obviously had a simillar bit of leaking regarding the grand jury proceedings by those standards. However, to assume that the special prosecutor is authorizing leaks to the press is to jump to unwarranted conclusions...just as Conason does with Starr. Numerous lawyers and principles have knowledge of or access to the subjects and proceedings of the grand juries. Indeed, the Clinton administration pooled that information so all of the Clinton folks called before Starr and their lawyers had access to what the others had said. Needles to say, in that environment, blaming Starr for leaks is simply unjustified.
Fitzgerald was appointed by the Bush administration's own deputy attorney general, as noted above, at the request of the CIA director. He boasts extensive experience and success as a federal prosecutor. He is not only skilled but absolutely free of any partisan taint, having prosecuted both Republicans and Democrats in Illinois. His investigation of the CIA leak will be wrapped up after less than two years, without any grand jury extensions. His office has been remarkably free of leaks, which may help explain why he gets none of the fawning publicity that was once lavished on Starr.

Kenneth Starr was appointed by an independent panel of judges (hey, what happened to that respect for the independence of the judiciary?) in response to President Clinton's own call for an independent counsel to be appointed. Ken Starr's resume beats Patrick Fitzgerald's (with all due respect) all to hell. If Fitzgerald is 'free of any partisan taint' because he prosecuted some non-descript Republicans in Illinois (I don't really know who Joe is talking about, but let's just go with this one), then why not also Starr, since he was confirmed twice to judicial appointments by Democrat-controlled Senates and enjoyed bi-partisan support in his investigation of *Republican* Bob Packwood's sex scandal?

The length of time comparison is obviously ridiculous. There is no set time for an investigation and that time is obviously dependent on the cooperation of witnesses before the grand jury (hi, Susan McD!). Conason's attempt to suggest that this comparison means Fitzgerald is a professional while Starr was a partisan is a joke. This would be true even if Starr had only had the responsibility of the Whitewater investigation. As for re-panelling grand juries, I wonder what Mr. Conason thinks about Ronnie Earle and his 6 grand juries (including the morning-empaneled, afternoon-indictment grand jury). Hmmm. Anyway, there is nothing to indicate that Fitzgerald is more immune to leaks than Starr was...and that really isn't all that important an issue in the first place. As for a fawning, Starr-loving press as opposed to a skeptical, Fitzgerald-hostile press...he just has to be kidding. Really.
Critics like Weisberg, admittedly having no concrete knowledge of the evidence presented to the grand jury, suggest that those who revealed Valerie Wilson's identity were not motivated by revenge and committed no serious crime. Their destructive leak, Weisberg suggests, was "accidental," and he finds it impossible to believe that Bush administration officials would intentionally endanger CIA operatives. With equal ignorance of the evidence, Tierney echoes the current Republican spin downplaying the likelihood of any "real crime," a category that apparently doesn't include perjury or obstruction (unless perpetrated by a Democrat).

If you're wondering why he is still on about Weisberg and when he's going to get around to pointing out the members of the Republican attack machine on Fitzgerald and what they are doing to smear him...keep wondering. But let's address the point anyway. Weisberg may not have direct access to their testimony, but that doesn't mean that he doesn't have a good grasp on what this investigation entails. We have quite alot of good information out there (not the least of which has been the excellent reporting of the Weekly Standard's Stepehen Hayes). Furthermore, almost everyone I've seen comment on the subject has couched their comment in terms of *if* nothing new shows up. So Conason is attacking a straw-man here. The rest of the above is simply agitprop and, with no substance to it, not really worth refuting. I could point out that Weisberg (That's right. *That* Jacob Weisberg) doesn't say anywhere that perjury is OK for Republicans but not for Democrats...but you're probably too busy spitting up your coffee to read it.
Considering the Bush administration's past treatment of dissenters and adversaries, however, it is entirely plausible that the officials now under scrutiny would have sought to intimidate Joseph and Valerie Wilson -- and that they may have done so recklessly, without thinking about the consequences of revealing her identity. Thuggishness and incompetence are not mutually exclusive.

As for whether perjury and obstruction are real crimes, Tierney and other would-be defense lawyers should answer this question. How can prosecutors require witnesses to tell the truth -- and refrain from obstructing justice -- if they are unable to prosecute those who would commit those offenses in covering up their misconduct?

What was Conason's position on Clinton's perjury, again? Ah, nevermind. We should try to avoid the same trap Conason is in: attempting to make a case out of the imagined hypocrisy of one's interlocuters. Again, Conason merely attacks a strawman here. The point Tierney and others have made is that any perjury or obstruction charges should involve obvious and egregious violations if they are to be pursued...especially in the absence of any underlying crime. There are good reasons for this. Why would future administrations submit to investigations if, no matter their innocence, they will be indicted anyway? Why should witnesses not all take the Fifth rather than cooperating with the prosecutor's information gathering when they are more likely to be prosecuted for their cooperation than they are for what the investigation is supposed to be about? For those not myopically focused on 'getting' the Bush administration, slippery and vague indictments of cooperating administration officials on 'obstruction' charges should be very worrisome.
In any case, the appellate judges who upheld the subpoenas of reporters Judith Miller and Matthew Cooper believed that Fitzgerald was on the trail of offenders who deserved to be caught. Unlike Fitzgerald's critics, they had seen some of the evidence -- and we should soon find out why they considered the crimes he is investigating to be very serious indeed.

Needless to say (you would think), the fact that appellate judges upheld Fitzgerald's prosecutorial authority in the Miller and Cooper cases has absolutely nothing to do with whether Libby or Rove are guilty of anything. That's more of an unwarranted assumption than any of those relied upon by Weisberg or Tierney. So in the end, what did we get. Not ONE IOTA of evidence of ANY Republicans or conservatives having smeared Fitzgerald IN ANY WAY. We get two baseless charges of partisanship and hypocrisy on the part of two liberal journalists who, in fact, deserve kudos for their intellectual honesty in expressing skepticism about there being any 'there' there when it comes to the Plame investigation, despite (rather than because of) their own political leanings.

Indeed, the true irony to appreciate here (once you've waded through all the falsehoods and distortions that Conason's article is replete with), is that one of the most partisan shills and viscious attackers of a special prosecutor during the Clinton accusing journalists (unjustly) of being partisan shills and visciously attacking a special prosecutor. And to top it off, he engages in it ONCE AGAIN in the very article in which he levels these accusations. Frankly, Joe couldn't carry Weisberg's jockstrap when it comes to credibility or ethical journalism. However, Conason's imaginary Republican smear campaign against Fitzgerald is an interesting data point in favor of the truism that we see the world through the prism of our own faults and foibles. Here's to hoping that next time, instead of projecting his own dishonest shilling on to real reporters, he takes a little of that time to examine his own past conduct when it came to smearing the good name of an independent prosecutor.

Scratching the Itch

Well, that lasted long. Do they have recovery groups for compuslive bloggers?