USATODAY.com, June 2007
Patrick Fitzgerald abused his prosecutorial powers when he indicted
Scooter Libby for a faulty memory. The only remedy is a presidential
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
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
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
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.