When is justice not truly justice?

"Scooter" Libby has been charged with perjury and obstruction of justice. This calls into question, even more sharply than the conviction of Martha Stewart on similar charges, the question of what is justice.

I have no brief for perjury or obstruction of justice. I have consistently maintained that these are serious charges. They were when Bill Clinton committed them and they remain so today. When Clinton's supporters were trying to minimise the significance of these charges, Clinton, head of as the Executive branch of the US government, was holding 1500 people in federal prisons for perjury.

But Libby's case is massively different from Clinton's, or even Martha Stewart's. Clinton lied in a real court case. It was a case which was subsequently dismissed, but it was a real case nonetheless. There was justice in progress, and he sought to obstruct it.

Even in the case of Martha Stewart, where there was no underlying crime or any court case, there was at least a real investigation in progress. We can assume that the investigators genuinely thought that there was, or at least might have been, a crime at the time she lied to them.

In the case of Scooter Libby this is demonstrably not the case. It is not just that we have discovered later that there was no underlying crime - in this case no breach of the Intelligence Identities Protection Act. It has been known for months that there was no such breach, and could not possibly have been. All the facts which led Patrick Fitzgerald to this inevitable conclusion have been in the public domain for months, at the very least.

I wrote about it in July. The one piece that was still - as far as I knew - missing from the puzzle then was whether or not Plame had been based abroad during the five years prior to the leak. Joe Wilson's book makes it clear that she had not. This nails down beyond any possible doubt that there was no breach of the Act, and could not have been.

Patrick Fitzgerald should not have had to rely on Wilson's book. Wilson is, afterall, a proven liar. He should, on the first morning of his appointment as special prosecutor, have asked the CIA if Plame had been abroad on CIA business during the relevant period. They would probably have said 'no' and he should have wound up the investigation. It is possible that they would have said, as they did to all other enquirers that they could not comment. In which case he should still have wound up the investigation, as without their testimony that she was covered by the Act a conviction would have been impossible.

So what 'justice' was Libby, even if he did lie, and prosecutors have yet to prove this, obstructing? He cannot have obstructed an investigation, as no genuine investigation was taking place. A competent prosecutor would have established this early on. If he lied to cover up someone's prurient interest in his relationship with journalists this is reprehensible, but not criminal.

So where is the crime?

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