Don Fitz Quixote almost done tilting at windmills

Special Prosecutor Patrick Fitzgerald is almost done with the riveting spectacle of his public flailing of Scooter Libby in a Washington D.C. court room. Libby's excuses look ridiculous; his selective "learning," "forgetting," and "learning again" go beyond straining credulity. They make no sense whatsoever. Fitz has firmly established that Libby knew all about Valerie Plame's identity as a CIA undercover agent weeks before he claimed, under oath before a grand jury, that he first learned about it from Tim Russert on or about July 10, 2003. He was briefed on it in June, he talked about it with Cheney, with Cheney's press mouthpiece, with the President's press secretary, with several other reporters before he talked to Tim Russert. As pointed out before, his lying doesn't seem very creative. It seems desperate, and perhaps torqued by a determination to keep Dick Cheney's key role in the outing of Valerie Plame from public view.

One huge question remains. Paragraph 25 of the Libby indictment reads as follows: "On or about September 26, 2003, the Department of Justice authorized the Federal Bureau of Investigation ("FBI") to commence a criminal investigation into the possible unauthorized disclosure of classified information regarding the disclosure of Valerie Wilson's affiliation with the CIA in the spring of 2003." So that was Fitz's mission too, I presume. The lying, perjury and obstruction of justice he discovered along the way were in the course of investigating what one might call the "substantive" crime of unauthorized leaking of classified information and the protected identity of a CIA undercover agent. Valerie Plame, it has been disclosed, was engaged in what is probably the most important of all clandestine activity, espionage into proliferation of weapons of mass destruction, including the nuclear ambitions of that charter member of the Axis of Evil, Iran.

The question then is this: what the hell happened to that investigation? The real one? Fitzgerald's meticulous work appears to have revealed a conspiracy originating in Cheney's office and in the Oval Office itself; that is to say, on at least a prima facie basis, Bush's casual declassification of a National Intelligence Estimate to counter Joseph Wilson's claims is an overt act in furtherance of a criminal conspiracy to violate the Espionage Act (leaking classified information) and the Identities Act (blowing the cover of an undercover agent). As has been suggested by prosecutors with a broader view of the investigation's potential, Cheney at the least should be an unindicted co-conspirator. And Bush? The man who promised that anyone working in his Administration would be terminated if found to have participated in the leaking of classified information to the press? Why isn't that the basis of a similar charge for obstruction of justice?

The clowns hanging around the White House at public expense, obsessed with being revealed as the liars they are about the phony justification for the war in Iraq -- they undermined the meticulous work of an American spy who was working in the very field these jerks claim is the key to avoiding Armageddon. They did it knowingly, secretively, traitorously. And the Libby case is what we get at the end of the process?

I hope Fitzgerald loses. I hope the jury figures out what a dodge, what a cop-out Fitzgerald's case is. Maybe they'll think along these lines. Maybe they'll say to themselves, how can you obstruct an investigation into something where the prosecutor says, at the end, no crime was committed? How can lies about perfectly legal activity be material and consequential? Why should we care? Fitzgerald, in his zeal for a meticulous and airtight case, sliced off a tiny piece of a huge and rancid pie. A case of transparent lying where he felt certain he could not miss with a conviction. The Big Case, the one where Bush, Cheney, Rove, Libby, Armitage all worked together to undermine a hardworking American spy, and in so doing gave aid and comfort to America's "existential" enemies--for such a case, Fitzgerald had no appetite. He might, after all, have lost that untried case because of its order-of-magnitude greater legal difficulties and technicalities. And in losing, he might actually have accomplished something for the United States.