On today's New York Times op-ed page, both in-house columnists, Nicholas Kristof from the liberal side and John Tierney from the conservative end, deliver the view that prosecutor Patrick Fitzgerald had better not bring charges unless he has something serious. Secondary allegations, both write, will amount to the criminalization of politics, to use the current phrase.
“No one deserves to go to jail for leaking information to reporters without criminal intent,” writes Tierney. Kristof concludes his columns with this thought: “Absent very clear evidence of law-breaking, the White House ideologues should be ousted by voters, not by prosecutors.”
Both have a point. Tierney's column raises a dilemma that should be disturbing to all of us, especially liberals, and especially journalists: When criminal investigations get into the area of indicting leakers and jailing journalists who received the leaked information (putting aside, as the law does, the leakers' and journalist's motives), then we may be heading into a future in which it could become more likely that leakers and journalists with good motives will be constrained from doing the right thing. That would be bad for whistleblowers, and bad for journalism. Liberals “cheering” for Fitzgerald need to weigh this.
Kristof makes a simpler point: In a democracy, the democratic solution to malfeasance is democracy, i.e., throwing the bums out. It's not for special prosecutors -- with no time or financial restraints -- to legalize questions that are ultimately political. He has a point that this is how it should work.
But here's what both of them are forgetting: The president of the United States had previously committed to a political solution. He promised us that he would fire anyone involved in leaking Valerie Plame's name, and he blatantly reneged on that promise.
George W. Bush made that original promise with one simple word in June 2004. A reporter asked him if he would fire anyone “involved” in leaking Plame's name, and he said: “yes.”
A little more than a year later, after Matt Cooper's emails and so forth became public, it was crystal clear that Karl Rove and Lewis Libby were, in one way or another, “involved.” Each, it was apparent this past July, had spoken about her to reporters, either giving them information directly or confirming information they'd received elsewhere, and thus helping to get her name and identity into reporters' notebooks. For those who say that what we know may not rise to the level of involvement, I say that sounds an awful lot like parsing what the definition of “is” is.
And on July 18 of this year, Bush changed course radically; gone was the promise to fire anyone “involved.” Now, he said that day, for any aide to be fired, he or she must be indicted and convicted: “If somebody committed a crime, they will no longer work in my administration.”
So I ask: Who, exactly, made this essentially political dispute a criminal one? The president did. Bush had the power, and I'd say the responsibility, to settle it politically: If he'd held to his original standard, he would have fired Rove and Libby in July. Fitzgerald undoubtedly would have started closing up shop, releasing Judy Miller and tying up loose ends for a final report.
But Bush changed his standard -- and, in the process, went back on a commitment he'd make to the American people about something a little more fundamental to the dispatch of executive-branch duties than oral sex. And, while I'll admit that my mother and I are probably old-fashioned, according to what she taught me, going back on a commitment is lying.
Neither Kristof, who does a lot of admirable work, nor Tierney saw fit to write a column taking note of this change in Bush's posture. Their newspaper's editorial page didn't either. There were news stories at the time, good news stories, which expressed a tone of alarm. But there was no indignation anywhere at what was one of the shadiest moves this president has pulled. Just imagine if Bill Clinton had tried that one. It would have been given a moniker, and we'd still be talking about it.
So, yes: There are civic-minded reasons to despair over one more presidential prosecution, and over a series of events that might someday lead to constraints on leaked information. Liberals need to remember to take these questions seriously if and when indictments are handed down.
But let's be clear about the main point. Bush himself told the people he serves that he would fire anyone involved. A year later, he refused to do so, changing the rules by fiat. People complaining about the actions of the prosecutor need to remember that that is how this political conduct was (potentially) criminalized.
Michael Tomasky is the Prospect's executive editor.
