The New American Way

04.29.2004 | David L. Steinhardt | National Affairs | 7 Comments
Did the president commit a felony in plain sight, the same offense that sent many Watergate conspirators to prison, and which might well have figured in the impeachment of Richard Nixon, had he not resigned?

In a nation of laws, the greatest attention must be paid to what is legal and what is not, no matter how picayune the definitions of some offenses. At issue here is whether the President committed a felony by making a most unusual public statement about an ongoing criminal investigation. And not just any investigation; his comment was about the Justice Department's attempt to determine who blew the cover of a CIA agent to columnist Robert Novak, who then -- inexcusably -- published it. The man DOJ is looking for is almost certainly Karl Rove, who called several reporters offering this information. Only Novak took it. He identified the source as "a senior administration official."

Very few people know the identities of our covert operatives. Those who disclose such names -- think Aldrich Ames -- are traitors who give aid and comfort to our enemies while pursuing selfish agendas that endanger national security. The motive behind the disclosure of this agent's name was political: her husband, the diplomat Joseph Wilson, had been sent at the government's request to check the veracity of the President's claim that Iraq had bought uranium in Africa. Ambassador Wilson found the claim groundless and published his findings. The White House retaliated by outing his wife, for whom the CIA had worked over a decade to establish deep cover.

According to Harper's Index, after former Treasury secretary Paul O'Neill legally cooperated with an author on a book, the very next day Justice opened an investigation into whether he had broken any laws. (He was vindicated.) After Karl Rove likely committed a crime that could send him to federal prison for ten years, the Department of Justice waited over ten weeks before opening an investigation. That DOJ dragged its feet over investigating its own administration is not surprising. What is surprising is that the President, who would figure in any such investigation himself, chose to make a public statement about it.

Obstruction of justice is a very serious crime. Without it, many criminal prosecutions would be too easy to thwart. All a crime figure would have to do is signal how he wanted his associates to answer investigators' questions. In other words, telling a witness to cooperate, while simultaneously winking, is a felony, because otherwise, a conspiracy to undermine an investigation could not be prosecuted unless the conspirators openly declared their intention to break the law.

The President should have said that he was legally compelled to have no comment about a sensitive ongoing investigation involving national security.

But no, on October 7, 2003, the President chose to speculate about the outcome of the investigation. Did he, as is his usual practice, declare his belief in the almost unlimited ability of the US Government to surmount any obstacle towards ultimate success?

Not exactly. The President's precise words were, "I have no idea whether we'll find out who the leaker is." He added, "This is a large administration and there are a lot of senior officials."

The President of the United States -- whose M.O. is to express unbridled optimism in his administration's capacity to fulfill even the most implausible task (think finding WMD in Iraq) -- expressed his open skepticism that his government was up to the task of discovering which of his inner circle had made a phone call to Robert Novak.

No, learning that information would require something beyond the USA PATRIOT Act, beyond our conventional and nuclear weapons. Cracking this case could quite possibly entail having to ask Mr. Novak.

Don't even think of claiming Novak has a right to protect a source here. That concept has no application when publication of the information is a genuine and criminal breach of national security! Even the Pentagon Papers only amounted to revealing an internal analysis of a stupidly run war. Blowing an agent's cover is the sort of enemy counterintelligence James Bond should blow a dart in your neck to prevent you from doing. If you think Novak's act was journalism, then any act of espionage is journalism if published!

And the President, asked his take on this most heinous of crimes, chose, despite his own connection to the case, to claim it was quite likely a perfect crime, one beyond the capacity of his own Justice Department to solve.

Is that the equivalent of a wink? Damn straight. When the President declares it unlikely any anyone will finger Mr. Rove, one can infer he's signaling that no one should finger Mr. Rove.

If you don't think that's obstruction of justice, then you believe he should be allowed to orchestrate a cover-up in public as long as he doesn't place his forefinger vertically before his lips, then horizontally across his throat.

But that's not the law.

So now that we have yet another president who commits felonies, the question must be, Do we have the stomach to try to initiate impeachment hearings in the House? Hiding a de facto double agent in the White House is something I would imagine Republicans might be opposed to, were it to happen within a Democratic administration. They might even consider it as severe a threat to the integrity of the Presidency as if a president were to be cagey under oath about with whom he had adulterous sex with.

But no one's going to hold impeachment hearings. And Justice probably won't indict the President's closest pal for compromising our national security.

Is the system broken? Not at all. Assuming the Supreme Court upholds the administration's view of presidential power, we can wait till John Kerry is president. Then he can simply declare Bush, Rove and Novak enemy combatants and ship 'em off to Gitmo.

Because that's the new American way.



This is absolute nonsense. In the first place, in order to qualify as a crime, revelation of a covert operative's indentity has to meet some stringent criteria; it is highly unlikely that the Plame affair meets those qualifications. In the second place, if the author of this column knows that Rove was the source, why is the FBI wasting its time? In the third place, magnifying Bush's comment into a crime in itself takes such torturous logic that the columnist should be writing spy novels. In the fourth place, the ridiculous John Kerry will never, ever be President, even if Bush turns out to have manufactured Saddam's weapons of mass destruction himself.

As for the Wilsons... the husband writes strident op-ed columns for the NY Times - and he thinks his wife's CIA job is going to stay a secret? Then, the supposedly exposed Plame and her husband do a Vanity Fair photo shoot in alluring James Bondish poses, while Wilson muses on who will play them in the movie.

Endangered by the evil Bush administration? Oh, please.
04.29.2004 | Michael Ladenson
I can only assume Mr. Ladenson believes the US is already an authoritarian society, if disclosing a secret agent's identity is the obvious retaliation for an ambassador's exercising his First Amendment rights. Personally, I would have preferred the dart-in-the-neck solution for the leaker.

In response to Mr. Ladenson's four points:

1) Yeah, I think it does.
2) Because I'm a columnist, not an FBI agent.
3) Thank you!
4) I thought only Jeb Bush knew the November results already.
04.30.2004 | David L Steinhardt
I would respectfully suggest to Mr Ladenson that there really aren't two sides to this issue.

Whether or not Joe Wilson is a self-promoting boor (and he certainly seems one), a serious federal crime was clearly committed and the President and his top aides have clearly obstructed the investigation of the crime.

Little can have worse effect on recruitment and morale in the intelligence field than the knowledge that elected officials are perfectly willing to hang operatives out to dry for their own short-term ends.
04.30.2004 | Tim Marchman
As President Bush indicates he'll hire Jim Sharp, Richard Secord's attorney from the Iran-Contra Scandal, it's clear the President knows he's in trouble here, even if the rest of the media remains blind to it.

Even today's Times story feigns being mystified at this development, as if still acting clueless justifies having ignored this scandal's closeness to the President to this point:

"Mr. Bush's decision to consider hiring his own lawyer in the case surprised many law enforcement officials and political figures who have followed the politically charged case for months.

"While Mr. Wilson has mentioned several prominent White House advisers - including Karl Rove, I. Lewis Libby and Elliott Abrams - as possible sources of the leak, the president himself has not been seen as a potential target of the investigation."

Oh, that nutty New York Times. They tell us what "has not been seen" as if all the eyes of the world were hooked up to West 43rd Street. Well, you read here over a month ago that Pres. Bush has "been seen" to be an appropriate target of the investigation...by at least one pundit.
06.3.2004 | David L Steinhardt
Federal judge Thomas Hogan apparently agrees with my reasoning that no "shield" privilege exists for reporters in this case and today held Time Magazine and their reporter Matt Cooper in contempt for refusing to tell what they know about this most serious crime.
08.9.2004 | David L Steinhardt
And today, as 4 reporters are held in contempt of court for refusing to reveal who in the government improperly leaked false and damaging information about Weng Ho Lee, FAIR (Fairness and Accuracy In Reporting) today called on all journalists involved in the Lee and Plame cases to reveal their sources:

"Protecting the identities of confidential sources is a journalistic right that should be recognized by the courts, but only when it protects genuine whistle-blowers, not when it shields government wrongdoing."

Hear hear!
08.19.2004 | David L Steinhardt
Once again, what was available to be known over a year ago is now pronounced news, as Rove is now finally in the news about the leak of Plame's name.
07.5.2005 | David L Steinhardt

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