Pardon is only remedy


Patrick Fitzgerald abused his prosecutorial powers when he indicted Scooter Libby for a faulty memory. The only remedy is a presidential pardon.

From the day he took office as the unsupervised special counsel, Fitzgerald knew that Richard Armitage had first revealed to Robert Novak the fact that the spouse of administration critic Joe Wilson worked at the CIA. He also knew that Libby had never spoken to Novak about Valerie Plame.

Any non-obsessed prosecutor would have closed the investigation at that moment. But Fitzgerald has a thing about leaks. He once threatened to indict an FBI agent for a leak to ABC on no more evidence than that the agent had a friend at the network. There is no adult supervision for a special counsel, so the Plame leak investigation continued.

Fitzgerald learned early on that no one who discussed Plame's CIA connection was ever warned she was covert. Thus, an element necessary for indictment knowledge was absent. If there had been knowledge of this fact, Armitage would have been indicted. But Fitzgerald claimed he had to continue the investigation because he was looking for a conspiracy to reveal Plame's identity. Of course, Armitage and the vice president's office barely spoke and rarely agreed. Conspiring was not a factor in their relationship.

Fitzgerald excused others whose sworn-to memories were as bad, if not worse, than Libby's. Ari Fleischer, former White House spokesman, testified he had not told Washington Post reporter Walter Pincus that Wilson's wife worked at the CIA. Pincus swore he did and had his notes to prove it. Fleischer had immunity, but not from false testimony.

Fitzgerald called a news conference on the date of Libby's indictment and violated prosecutorial ethics by talking beyond the four corners of the written charges. Knowing full well there was no underlying crime, he hinted that Libby prevented him from finding one, even suggesting criminality by Dick Cheney. "There's a cloud over the vice president," he later said. How so? There was no crime to cloud over.

Our government is premised on checks and balances on the theory that unfettered power can be abused. Fitzgerald's abuse must now be checked. Mr. President, pardon Scooter Libby.

Former Justice Department official Victoria Toensing is an attorney based in Washington.





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