No Easy Answers

Rather than just let an error in logic pass by without comment, I have the following to say about Ann Coulter's otherwise righteous column, Joe Wilson: The End of an Error

My objections are best framed from the following paragraphs of Coulter ....

Even people who think the president should not be subject to civil suits in office do not deny that Bill Clinton had an affair with Monica Lewinsky and lied about it in a civil suit brought by Paula Jones. However irritating it is to liberals that lying about sex under oath is a crime, there was a crime that Ken Starr was investigating.

What was Fitzgerald investigating? Not only was there no underlying crime, there was not even -- as the Times put it -- "an attempt to silence Mrs. Wilson's husband" (or an attempt "to respond to people calling you a liar in the New York Times," as normal people put it).

Fitzgerald's entire investigation was nothing but a perjury trap from beginning to end for anyone who misremembered anything about who told whom what about a low-level nobody at the CIA who happened to be married to a Walter Mitty fantasist.

My point depends on a parallel (arguable on procedural grounds, but bear with me):

Clinton's crime was lying in a case where ... there was no case
Libby's crime was lying in a case where ... there was no case

Paula Jones' case against Clinton was dismissed on the grounds that even if all she alleged was true, it didn't rise to the level that permitted recovery. Clinton can be a cad, but that didn't affect Jones' employment. Jones had no claim, because she had no damages.

But lying to the court was not excused just because the plaintiff had no case.

Libby was asked to testify in an investigation as to the "leaking" of Plame's identity as a covert agent. That case is fatally flawed for two independent reasons - Plame wasn't covert and Libby lacked the requisite mens rea.

And now lying to investigators is to be excused because the prosecutor has no case?

Fitzgerald came onto the scene in December 2003, months after Libby allegedly attempted to misdirect the investigation away from himself, and toward reporters. I think Fitzgerald formed a good faith belief that Libby was lying his ass off - denying that he knew for a fact that Wilson's wife worked at the CIA. What's a prosecutor to do if he believes a witness is lying his ass off?

In order to be intellectually consistent, both Clinton and Libby should have similar "fate," excused, or not excused. To cop Coulter's phrase, "However irritating it is to conservatives that lying under oath is a crime, there was a crime that Patrick Fitzgerald was investigating."

N.B. I have plenty of criticism against Fitzgerald. His press conference was an abomination and a smoke screen. I hope he is ashamed. But I don't think that he was "after" Libby. I think he saw testimony that looked like a lie, gave Libby a chance to come clean, and Libby chose to lie to the grand jury. It's not an easy call - either way - and Coulter is wrong to cast it as an easy call against Fitzgerald.