What a spectacle it has been -- and how many more times will we see it? An "independent" prosecutor is appointed to dig into alleged crimes committed in the course of a heated political dispute. Legions of prosecuting attorneys are sent forth and unlimited government dollars spent over a prolonged period, ostensibly to determine whether a political figure committed a crime while pursuing a controversial political agenda. Witnesses and targets are interviewed by the FBI and hauled before grand juries to answer questions (without the assistance of counsel) on the precise facts of long-forgotten conversations. Scribbled notes are scrutinized for incriminating indicia. Leaks course through the media, reputations are tarnished, and officials are distracted and detoured from official duties.
At the end of this process the prosecutor announces that he cannot produce evidence that the conduct he has investigated constituted a crime after all. But all is not lost! Inconsistent testimony is abundant. Hence there have been crimes uncovered: perjury, false statements and obstruction of justice. Serious crimes, to be sure, but usually accompanied by underlying criminal behavior. Thus the elaborate process has been worth it: Bad guys have been unearthed. The special prosecutor can sit tall on his white horse.
By all accounts, Patrick J. Fitzgerald, the Valerie Plame special prosecutor, is an experienced and thoughtful man. But he has demonstrated yet again that the special prosecutor syndrome is alive and well. The man he has indicted, Lewis Libby, was investigated, along with numerous others, to see whether someone violated a law prohibiting the intentional disclosure of the classified identity of a covert intelligence agent who'd served as such outside the U.S. during the five years preceding disclosure. Apparently he committed no such crime -- at least the indictment doesn't charge him with that. Instead, Mr. Fitzgerald asserts, he misled investigators and grand jurors about conversations he had with reporters regarding Ms. Plame and her husband Joseph Wilson, a former ambassador engaged in a bitter dispute with the administration over its justification for the Iraq war.
If Mr. Libby intentionally lied to investigators or the grand jury, he committed a crime, and that is a serious wrong. But I'm according him a heavy presumption of innocence, not only because the Constitution guarantees that, but because I know him to be an honest, conscientious man who has given a large part of his life to public service. From personal experience as a former public official who has been investigated by a special prosecutor, I know how easy it is not to be able to remember details of seemingly insignificant conversations. I know, also, what a prosecutor with unlimited time and resources can come up with after endless probing.
As chief of staff to the vice president, Mr. Libby participated in countless meetings and phone conversations every day, seven days a week. Talking to reporters, mostly on background, is a big part of life in these jobs. At this level, important events occur daily, one after the other. The same can be said about journalists in Washington. So many phone calls every day -- some on record, some off. It is impossible to remember the details of who said what during which conversation on what day -- even a week, much less years, later. So if Mr. Libby's memory is wrong about what he said to or learned from reporters in June/July 2003, or if reporters do not recall accurately, or if phone conversations are juxtaposed, that is natural, not sinister.
Remember that Mr. Libby is not charged with knowingly disclosing Ms. Plame's CIA affiliation in order to disclose the identity of a secret agent. It seems fairly clear that he had numerous conversations about Mr. Wilson's discredited grievances against the administration in order to refute those charges and explain Mr. Wilson's motivations, not to out a CIA agent. Ms. Plame was not manifestly central or even especially relevant to the underlying dispute.
Even more compelling is what the Fitzgerald charges will portend for public discourse on political subjects. Officials and journalists have thousands of conversations a day about controversial matters. That is how we learn what is going on. As the Supreme Court has explained, the Constitution intends that such speech be uninhibited, even vehement and caustic. Must officials now fear that they may be prosecuted if they do not accurately recall conversations years later? And that the journalists they talk to will be witnesses for the prosecution? Should journalists caution sources that if their memories of fleeting conversations are less than fully consistent, those memories will be fodder for prosecutors years later?
Mr. Fitzgerald justified his subpoenas on the ground that the journalists were "eyewitnesses to the crime." But he was unable to establish, and he certainly hasn't charged, that there was a crime in the first place. If special prosecutors can be empowered to investigate allegations of conduct that isn't first established to be criminal, and to interrogate witnesses -- especially reporters -- about memories of distant conversations with sources regarding conduct that isn't plainly criminal, there is no politically motivated allegation that can't be turned into a criminal cover-up. So, regardless of how one might feel about the administration or the war in Iraq, the circumstances of this prosecution, and the involvement of reporters such as Tim Russert as prosecution witnesses, ought to give us occasion to pause and consider the implications of Mr. Fitzgerald's redefinition of "Meet the Press."
Mr. Olson, former solicitor general, is an attorney in Washington. He has served as counsel to Time magazine and its reporter Matthew Cooper.