Yesterday, a Washington, D.C. jury found former White House aide I. Lewis "Scooter" Libby guilty on four out of five counts in his trial for perjury and obstruction of justice.
This case began when the White House decided to launch a criminal investigation of who told reporter Robert Novak that Valerie Plame worked for the CIA, where she once held non-official cover status. The Constitution gives the president (according to the Supreme Court in U.S. v. Nixon) the "exclusive authority and absolute discretion to decide whether to prosecute a case."
But there is another power that the Constitution also commits to the president's unreviewable discretion. That is the pardon power, and it is just as important an exercise of executive authority. While post-trial motions or inevitable appeals may eventually overturn the jury verdict, there is no need for the president to wait. In the unusual circumstances of this case, a presidential pardon is appropriate.
That's because, as most people know by now, special prosecutor Patrick Fitzgerald never charged anyone with violating the Intelligence Identities Protection Act of 1982 -- the job for which the Department of Justice appointed him -- after he quickly determined that there was no violation of that law. And it is all but certain that, knowing what he knows now, the president would never have even started the process.
After Robert Novak wrote that Valerie Plame worked for the CIA, CIA Director George Tenet requested that the Justice Department start a criminal probe into the leak of Ms. Plame's identity. The CIA insisted that it was vital to discover the source, although Robert Novak said at the time that the CIA "never indicated it would endanger her or anybody else" if he revealed her connection.
What's more, Ms. Plame and her husband reacted to their "outing" in an unusual way. They appeared to revel in the publicity. I have worked with undercover FBI agents and Department of Defense officials whose jobs are classified. They do not pose for photo spreads in Vanity Fair. Unlike Ms. Plame, they do not have pictures of themselves in pajamas published in Time magazine.
The final nail in this case should have come when, right about the time of Mr. Fitzgerald's appointment, former Deputy Secretary of State Richard L. Armitage told the FBI that he was the primary source who revealed Ms. Plame's identity. Mystery solved! The circumstances did not show any violation of the Intelligence Identities Protection Act, so there could be no indictment. But rather than going home, Mr. Fitzgerald asked Messrs. Armitage and Novak to keep that information quiet. He also asked for and received approval to expand his investigation and he kept going -- like the Energizer Bunny.
The whole court case was about memories, not about the importance of classified information, or whether the government properly classified information in the first place. That is because Mr. Fitzgerald never charged anyone with the leak itself.
When the press asked him if Mr. Libby had "outed" Ms. Plame, he said, "I am not speaking to whether or not Valerie Wilson was covert." The original "crime," we now know, did not occur. Mr. Fitzgerald never even introduced any testimony that Ms. Plame's employment was classified.
The trial featured a parade of different memories. What did people say? Should Mr. Libby have remembered a conversation the same way NBC's Tim Russert did? For the crucial conversation, Mr. Russert kept no notes, and was not even sure what time of day the conversation took place. An F.B.I. report said that Mr. Russert said that he could not rule out discussing Ms. Plame with Mr. Libby, but he had no recollection of that. On the stand, Mr. Russert testified that he did not believe he had said that.
He was not alone. Other reporters had confused notes, had lost their notes, or could not remember all that well. Former New York Times reporter Judith Miller, who suffered jail for nearly three months until she disclosed her sources and notes, admitted that she had a weak memory, and testified that she had heard of Valerie Plame's CIA connection from sources other than Mr. Libby.
But if testimony differs, the law allows the jury to look witnesses in the eye and believe one and not the other, even if there is no documentary evidence. That is why perjury is a powerful prosecution tool -- one that was abused here.
Among the unhappy precedents if the Libby verdict stands: Executive branch officials will hide from the press, which is unfortunate because "leaks" can be an important check on all three branches of government. And even innocent officials will not be forthcoming when it comes to cooperation with future prosecutors. ("I don't recall . . .")
Perhaps the worst precedent would be normalizing the criminalization of policy differences. Many of those who loudly demanded Mr. Fitzgerald's appointment -- and who applauded yesterday's verdict -- offered no more compelling reason than that somebody should pay for the Bush administration's decision to go to war in Iraq.
The late Supreme Court Justice Robert Jackson, when he was attorney general, warned that if the "prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than the cases that need to be prosecuted."
One wonders if Mr. Libby must go to prison for years to protect the principle that the classified status of a former CIA employee is sacrosanct, even if that employee appears to covet publicity.