The Journal Editorial Report
Front Page
Lead Story
Briefing & Opinion
Tony & Tacky
TV Schedule
For Teachers
About the Series

October 28, 2005



PAUL GIGOT: On the other big story of the week, the news was not good, but not disastrous for the President. Special Counsel Patrick Fitzgerald decided not to seek an indictment of the President's top aide, Karl Rove, in connection with the leak of a CIA officer's identity. True, a five-count indictment did come down against Vice President Cheney's aide, Lewis "Scooter" Libby, charging him with lying and obstructing justice. Libby resigned. But that was not the political blow an indictment of Rove would have been.

Joining us to discuss this story is James Taranto, the editor of David, before we get to the politics of this, let's talk about the merits of this particular indictment: five counts, false statements, perjury, obstruction, serious charges. As you look at the merits, how serious, how solid is this indictment?

DAVID RIVKIN: Serious counts, to be sure. Perjury and obstruction are not to be taken lightly. But the facts are, there's his version of events, Libby's versus the version of events of other people. It was more in the nature of "he said, somebody else said something else." But far more fundamental to me, what the indictments do not contain. Remember, this whole matter was referred to Fitzgerald because of speculation that there was a violation of the Intelligence Identity Protection Act, '82 statute, very important.

PAUL GIGOT: 1982 statute.

DAVID RIVKIN: 1982 statute. Very narrow statute that prohibited leaking of information of "covert operatives." Very small portion of the CIA employees. No allegation that in the indictment, no charges, there was none. Interesting enough, the indictment mentions the possibility that Valerie Plame's name was not known outside of the intelligence community. It's a little bit of a smoke there. But no indications and no charges of violations of classified information.

PAUL GIGOT: So an allegation here of lying about a non-crime.

JAMES TARANTO: That's right. From what we see in this indictment, we see no evidence that any crime was committed before Patrick Fitzgerald took on this case, even if Libby is guilty of everything he's charged with.

PAUL GIGOT: That's astonishing. That means that the whole beginning of this scandal, and all of this, there really was no fundamental violation at the heart of it.

JAMES TARANTO: It's a Seinfeld scandal. It's an investigation about nothing.

DAN HENNINGER: Well it's, again, an argument over the yellow cake stories out of Niger and so forth, and whether that was a basis for going to war in Iraq, and that in turn got built into a political dispute between the White House and its opponents. And I thought Patrick Fitzgerald and then that leaked over into there, so to speak, into this Covert Intelligence Act. I thought Patrick Fitzgerald put it very well when he analogized it to a bean ball in baseball. The reason pitchers throw at guy's heads in baseball is because they're getting back for something the other team did. It's like the code of the game. It's like when hockey players knock each other down. And what Fitzgerald was saying, I'm not going to pass judgment on this street fight you guys are having over politics here. I'm just looking at what happened in terms of obstruction and perjury. He refused to touch the political side of this issue.

PAUL GIGOT: On that point, we have a sound byte from Patrick Fitzgerald where he makes his case on why this is serious. Let's go with that.

PATRICK FITZGERALD: If the charges are proven so remember there's a presumption of innocence but if it is proven that the Chief of Staff to the Vice President went before a federal grand jury and lied under oath repeatedly, and fabricated a story about how he learned this information, how he passed it on, and we prove obstruction of justice, perjury, and false statements to the FBI, that is a very, very serious matter.

PAUL GIGOT: How do you respond to that, David?

DAVID RIVKIN: I respond to it this way: it is my theory that Mr. Fitzgerald knew within a few weeks of taking on his charge that no violations of the Act...

PAUL GIGOT: The leaking charge.

DAVID RIVKIN: The leaking charge, were true. And the reason for it if you look at his initial letters which he received from Mr. Comey dated December 30th, it only mentions that statute. But February 4th there's a broad letter giving him plenary power to investigate everything. My question to him is, if he knew by early January, or mid-January, that no violations of that statute occurred, why would he continue to investigate, put people before the grand jury, put reporters in jail, and if you will, create almost an ambience where those types of things arose?

JAMES TARANTO: Well, I think the answer to that is, he's a special prosecutor. He had a mandate to investigate this to whatever extent possible, he was granted extraordinary powers, and you have to fault the Bush administration for allowing that to happen. It's the same sort of hubris that President Clinton displayed when early in his term he signed the reauthorization of the Independent Counsel Statute, which has since expired, on the grounds that well, we're not in any danger, we're the most ethical administration in history.

DAVID RIVKIN: Well right. Problem is, to be fair, though, the Independent Counsel Statute and Special Counsel Procedures pre-date the Bush administration. There was a whole ethos, in a post-Watergate environment, which says that if you're a senior government official, I'm going to take you out of a normal justice system where prosecutors operate subject to all the normal bureaucratic checks and balances. And a very important one, having other people second guess you. Because none of us is that smart. Special counsels are loners. Nobody second guesses them. A limited resource has limited time. You can take the most honorable person and Fitzgerald is very honorable put him in that position, and it skews, it warps your judgment. And this is an instant just like campaign finance reform. The cure is worse than the disease.

PAUL GIGOT: Well you make that point, and I happen to agree with it. But the problem is, James is still right, it seems to me, about the Bush administration, because John Ashcroft recused himself from this case, leaving the decision to supervise Fitzgerald in the hands of the Deputy Attorney General, James Comey, who was his old friend from the U.S. Attorney's days. And that seems to me to have been a political abdication, and the President let it happen. So in a sense, he's the man who fired the torpedo that has now hit the hall of his administration in the second term. He has to be responsible.

DAVID RIVKIN: You're right, Paul. But my only point would be that the nature of politics and bureaucratic organizations, if you have a bad system but allows people like Comey, like Ashcroft, to escape political responsibility by passing the buck, chances are very high that they'll pass the buck. It doesn't vitiate individual responsibility, but let's be mindful that it's a problem of the system, of the rules.

PAUL GIGOT: I want to ask something about motives here, because there is one thing that is missing in this indictment, as I read it, and that is why Scooter Libby would have lied to the Grand Jury if in fact he was not covering up a crime in the first place? As we know, he was not charged with that crime. So what is the motive here for him having lied about how much he knew about Joe Wilson's wife?

DAN HENNINGER: I can't begin to guess, Paul. To me one of the most fascinating aspects of this is, what it says about the substance and content of the way the newspaper business is done and the way politics is conducted in Washington. These conversations took place at least two years ago. Reporters and public officials talk to each other constantly, all day long. Libby has been indicted for three conversations. He probably had 300 conversations in that time period, and people are talking about they are indeed talking about classified information, the reporters are scribbling down their notes. Can you imagine what a reporter's notebook looks like? And the notebooks include direct quotes that go into newspapers. And believe me, they're not always verbatim.

PAUL GIGOT: So Scooter Libby's defense may be that his recollection of events is simply very different than the one that the prosecutor laid out today which I have to admit, if you look at just on the way that he has presented it, does not look good.

DAVID RIVKIN: Or, there is a possibility and again, this is only speculation there is a possibility that he said that, if he indeed lied, to protect the Vice President not because any crime was committed ...

PAUL GIGOT: Politically.

DAVID RIVKIN: Politically. Because of the implication that there's something odious about "outing" this person. And again, as we all know, it was not outing this person. Democrats like to talk about cronyism. Think about the cronyism involved. The Vice President wants to check on the CIA reporting to see if it was slanted in underestimating the threat. And whom do we choose? We choose a husband of a woman who works in a very it's like having a corporation that's being audited by Arthur Andersen, have their results checked by a woman who's married to mid-level auditor. But there is such an odious feeling about this whole thing, aroma attached to it, that Scooter may have felt that removing the Vice President as far away from this was a judicious thing to do, in which case this is an honorable man that's going to be in a heap of trouble because of a very honorable motive.

PAUL GIGOT: All right, James, how do you read the fact that Karl Rove was not indicted, and though the Special Counsel says the investigation is continuing. Do you get the sense that he's in fact out of the woods?

JAMES TARANTO: It sounds to me like he probably is. I think if after two years, Fitzgerald had found something on Rove, he would have had the case two indictment out. If he needs to indict, he has to go to a new Grand Jury. So I'm guessing Rove is in the clear.

DAN HENNINGER: Yeah, I agree with that, Paul. I think that by and large the bean ball aspect of this story is evaporating. The political side is something Fitzgerald simply refused to talk about. He was asked about it over and over again... DAVID RIVKIN: And properly so.

DAN HENNINGER: And properly so. And he said, my investigation has not revealed anything that I'm willing to talk about, so there is nowhere really for this mountain that's been made out of a molehill to go at this point.

PAUL GIGOT: In other words, this is not, when it comes down to the final analysis, in the indictment, an accusation about a major cover-up that involves several people.

DAN HENNINGER: A Watergate...

JAMES TARANTO: Or any point of conspiracy.

PAUL GIGOT: It's an accusation about the alleged lies of one government official. So where do the Democrats try to take this and presumably they will. I read the statements today. John Kerry said that it was an example of corruption, that this administration's corruption. Several others talked about Vice President Cheney having a press conference. Let's get it all out on the table. Is that where this is headed?

DAVID RIVKIN: They're going to try. But I think we're going to remind, try to remind the Democrats the statements that a number of them made last weekend where they said, "We trust Comey. Whichever he comes out with, we presumptively believe his bona fides. We believe his probity." Well, they should live by their own words. And I think it would over-reach the American people. I'm not going to go there.

DAN HENNINGER: You know what? If I were they, I would go after them. And the reason I would go after them ...

PAUL GIGOT: If you were President Bush and Dick Cheney?

DAN HENNINGER: No, if I were the Democrats, I would run right back at the White House, and the reason I would do that is because it looks to me like the White House has a pretty shaky operation running right now. The Miers nomination you mentioned the torpedo. Miers was the second torpedo. These two events almost both destroyed the Bush presidency. And there are obvious weaknesses in the White House operation, and I think they really have to be addressed.

PAUL GIGOT: Okay, gentlemen, thank you very much. Next subject.