John Steele Gordon asserts that there is some profound difference between the Valerie Plame affair and all previous Washington scandals, that there is no scandal because “no one has endangered the Republic,” and that if Fitzgerald indicts anyone, this will be a case of the criminalization of normal politics. This seems premature at best, since unlike some special prosecutors’ investigations Fitzgerald’s does not seem to leak like a sieve, so we do not know what charges, if any, he will make, or what indictments he will seek. But the odds seem pretty good that he is thinking about obstruction of justice, making false and possibly perjurious statements, illegal disclosure of classified information, and conspiracy. In other words, some of the possible charges sound a lot like the ones that fueled the Watergate and Monica Lewinsky scandals, and the ones that differ seem more serious than any crime President Clinton(or Sherman Adams) can be plausibly accused of having committed.
Whatever anyone thinks of the merits or applicability of the law the CIA first thought had been violated, obstruction of justice is not a trivial charge. Criminalizing normal politics is a admittedly a serious and dangerous business, and to a majority of the electorate, it looked as if that was what the Republicans were up to during the Clinton administration, when they pursued impeachment charges. It seems odd to say that this is what Fitzgerald is doing now, or what he will be doing if he seeks indictments on the charges enumerated above. John Steele Gordon does wisely warn that “a fully enfranchised people” can, “when roused, take their sovereign power seriously” and slap “down their misbehaving public servants sooner rather than later.” Indeed, that is what a fully enfranchised people did to the Republicans in the 1998 Congressional elections, and for that matter in the 1974 Congressional elections. Current polling data suggest that it is at least possible that they will do so yet again to the Republicans, in the 2006 Congressional elections. But the chance that the electorate will turn against the Democrats because Republican White House aides are accused of, for example, obstruction of justice, seems derisory.
In retrospect, there are some ‘90s lessons about criminalizing politics that might have been acted on. When the Supreme Court assumed that President Clinton could defend himself against civil litigation while discharging the duties of his office, it appears to have been grievously mistaken. It would be good if the Republican Congress and commentariat had admitted that and sought to change it. The use of litigation as a political weapon by Paula Jones’s lawyers might also have set off some alarms. It didn’t. There are a lot of lessons we might have drawn and acted on—but none of them seem relevant to the current investigation of the Valerie Plame affair.