October 24, 2005
Once More on Plame Posted by Fredric Smoler at 11:30 AM EST John Steele Gordon again warns against the dangers of using the justice system for political purposes. He is surely right that there is great danger in any such procedure, although it is not clear why he thinks this danger is upon us as a result of Special Prosecutor Fitzgerald’s investigation. After all, who in the investigation’s chain of command can plausibly be accused of politicizing the justice system? Fitzgerald, a distinguished career prosecutor who is not a registered Democrat but who is a Bush appointee, was instructed to investigate the leak of Plame’s identity by another Bush appointee, then-Deputy Attorney General James B. Comey, who reported to yet another Bush appointee, the former Republican senator and then attorney general John Ashcroft. Which of these men has acted in a fashion that suggests any bad faith or ulterior motive in this case? None of the three have any known motive for smearing the most commonly alleged targets of the investigation, Rove and Libby. It is in fact inconceivable that two senior Bush appointees could be gunning for Rove and Libby, so the only possible target for this innuendo is Fitzgerald, a man with so great a reputation for probity and irreproachable prosecutorial conduct that it has reached even my ears, and I know about a rather small number of prosecutors. Various Democrats are no doubt happy that Rove and Libby are under investigation and will presumably be happier yet if they are indicted, but these Democrats cannot logically be accused of politicizing a criminal investigation they neither authorized nor conducted. Fitzgerald, the only possible target of Gordon’s implied charge, has given not a shred of evidence that he is doing anything other than his professional duty. So the only people politicizing the justice system are the people impugning Fitzgerald’s motives with an eye to exculpating in advance any Republican targets of his investigation, which is to say, people originating or parroting the line of prosecutorial bias or malfeasance in the absence of any evidence. Back to history: History suggests that broad trust in the neutrality of the law is a precondition for stable democratic politics. There are times when a criminal justice system does not deserve this trust—in our own history, the career of J. Edgar Hoover immediately comes to mind—and as far as other societies goes, we have an embarrassment of evidentiary riches. Baselessly, cynically, or merely stupidly undermining public trust in the justice system is a destructive act. It is not a patriotic act. In fact, it is as about far from a patriotic act as one can get. One more thing on the Plame affair: John Steele Gordon again asserts that there is not much of a scandal here, and by implication that there has been no crime. We do not yet know if the special prosecutor thinks there has been a crime, but for the sake of the argument, let us assume that Fitzgerald secures indictments for perjury, obstruction of justice, conspiracy, and similar crimes, i.e., for the cover-up rather than for underlying conduct in the Plame matter. If conspiring to obstruct justice is not a scandal, why not? The argument seems to be that these hypothetical conspirators would not have committed their alleged crimes had they not been subject to investigation for crimes they did not commit. In my experience, this is not an exculpatory theory that tends to persuade prosecutors, including Republican prosecutors, just as it did not tend to persuade Democratic prosecutors during the impeachment of President Clinton. As for non-prosecutors, a possible measure of the good faith of people making this argument in the case of Rove and Libby is whether they made the same argument about Clinton. For my money, it is possible to distinguish between the two cases, although the distinction does not work to the advantage of Rove and Libby, but I am not a lawyer, and I have a lively sense that as a registered Democrat I may have a partisan bias in favor of Clinton. People who can distinguish between the cases but think the distinction works to the advantage of Rove and Libby should ask themselves a few questions about their own possible biases, ideally before attacking Fitzgerald. And one more thing, about patriotism. Ellen Feldman notes the difference between the treatment of returning Iraq vets and the old stories about the treatment of returning Vietnam vets. One possible explanation for this disparity is that the country is nowadays somewhat less afflicted by people who admire every century but this and every country but their own. In other words, we are, in one sense, more patriotic than we were during and for some time after Vietnam. Those are our soldiers, and our first impulse is to give them the benefit of the doubt. Maybe they were sadistic prison guards at Abu Ghraib, but probably not, and more important, the people they are fighting against seem less likely to be mistaken for the French Resistance, which means the Americans fighting them are less likely to be mistaken for the SS. Similarly, maybe Fitzgerald is the American equivalent of Vyshinsky (Stalin’s prosecutor) or Freisler (Hitler’s judge), but the odds seem to be against this possibility, at least in the eyes of most Americans, who do not assume that the fix is in before the first gavel comes down. This is not true everywhere, far from it. Polling data suggests that ours is the most patriotic political culture among modern Western industrial societies. An Anglo-American friend of mine, Jonathan Foreman, has just published The Pocket Book of Patriotism, an American version of a British succès de scandale with the same title. In contemporary Great Britain, patriotism is in many media ears an ugly word, and a book with the word patriotism in its title turned out to be the object of a fair amount of advance suspicion and hostility. In America my friend has been plugging his book on a publicity tour, and the questioners have mostly been fairly sympathetic. There are some ironies here. Johnny’s father, the director and producer and screenwriter (of High Noon, among other films) Carl Foreman, was one of the Hollywood blacklist’s victims, and he was hounded out of the country during the McCarthy years. He remained a patriot, believing that what had been done to him was an outrageous aberration and that American laws did not normally operate to, shall we say, criminalize politics. The people smearing Fitzgerald have not given the country the same benefit of the doubt, and their quickness to impugn our system of justice is at least as striking as was Foreman’s persistent idealism about it.
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