Is Fitzgerald’s Case Really This Weak?

Really fascinating editorial in the Opinion Journal today. It seems that the special prosecutor wants to actually use an Opinion Journal editorial as part of the evidence to bolster his case against Scooter Libby.

"One of the mysteries of the recent yellowcake uranium flap is why the White House has been so defensive about an intelligence judgment that we don't yet know is false, and that the British still insist is true. Our puzzlement is even greater now that we've learned what last October's national intelligence estimate really said."

Those words appeared in this column on July 17, 2003, under the headline "Yellowcake Remix." Three years later they show we were right about Joe Wilson and his false allegation that President Bush lied in that year's State of Union address about Iraq seeking nuclear materials in Africa.

So imagine our surprise when Special Prosecutor Patrick Fitzgerald declared his intention last month to use that editorial as part of his perjury and obstruction case against former Vice Presidential aide Scooter Libby, who had also questioned Mr. Wilson's claims. It suggests that his case is a lot weaker than his media spin.

This is downright bizarre. Using an editorial to establish your case? Using something which transmits an opinion? Really?

In the summer of 2003, Washington was abuzz with the allegations of Mr. Wilson, a former ambassador who had been to Africa on a fact-finding mission for the CIA. Mr. Wilson served as the then-anonymous source for several articles alleging deliberate inaccuracies in the Bush Administration's case for war with Iraq, before making the case himself in a July 6, 2003, New York Times op-ed. Mr. Wilson asserted that the now famous 16 words–"The British Government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa"–were false. And, he wrote, Mr. Bush would have known they were false because he knew Mr. Wilson had already debunked the story.

Those allegations were serious indeed, and the White House had every right–even a duty–to answer them. Mr. Libby appears to have played a significant role in this effort, but that can hardly be considered a crime. Enter our July 17 editorial, which pointed out that far from debunking the Niger-uranium story, the information presented by the intelligence community to President Bush tended to support it.

Quoth the NIE: "Iraq also began vigorously trying to procure uranium ore and yellowcake"; and "A foreign government service reported that as of early 2001 Niger planned to send several tons of 'pure uranium' (probably yellowcake) to Iraq. . . . We do not know the status of this arrangement." We ran the editorial to give readers a more complete understanding of the yellowcake debate, and of Mr. Wilson's claims, than they were getting in other media accounts.

A year later the 16 words were declared to be "well-founded" by Britain's high-level Butler inquiry, as well as by a bipartisan report from the U.S. Senate Intelligence Committee. To the extent Mr. Libby helped the actual contents of the 2002 NIE find their way into the public debate–as opposed to Mr. Wilson's fantasy version–he performed a public service.

It's an absolute article of faith on the left that the 16 words were a lie. Despite the above mentioned evidence to the contrary. It's also an article of faith that Joe Wilson is telling the truth. Despite the evidence above.

As I have mentioned before, I find that fact that Fitzgerald is prosecuting for perjury without having proven that the underlying crime occurred at all extremely troubling. Here's the problem: in prosecuting for perjury and lying to a federal official, the prosecution is starting from the presumption that an underlying crime has been committed. This a a violation of the presumption of innocence standard. It's an insidious way to circumvent that standard.

All of this matters because it suggests that Mr. Fitzgerald is scrambling even now to explain why a seasoned attorney such as Mr. Libby would lie to a grand jury. The prosecutor's original indictment doesn't mention a motive. And his mention of our editorial suggests he's now trying to invent a motive out of Mr. Libby's attempt to defend the White House from Mr. Wilson's manifestly false allegations at the onset of a Presidential election campaign. (Mr. Wilson joined the Kerry campaign until he was dropped after the official probes destroyed his credibility.)

There is all the difference in the world between seeking to respond to the substance of Mr. Wilson's charges, as Mr. Libby did, and taking revenge on him by blowing his wife's cover, which was the motive originally hypothesized by Bush critics for the Plame exposure. The more of Mr. Fitzgerald's case that becomes public, the more it looks like he has made the terrible mistake for a prosecutor of taking Joe Wilson's side in what was essentially a political fight.

That's looking pretty likely right now.

UPDATE: Cassandra at Villainous Company has more.