Back to the Future: From Scooter Libby to Donald Trump

By | 2017-12-27T10:37:12+00:00 December 26th, 2017|
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Do we remember today the media hysteria between 2003 and 2007 that surrounded the special counsel’s investigation, prosecution, and trial of Scooter Libby?

During the progressive furor over the Iraq War, media-driven charges arose that Vice President Dick Cheney’s chief of staff, Lewis “Scooter” Libby, had deliberately leaked the covert status of Valerie Plame—a supposedly undercover CIA operative.

Soon all hell broke loose. Remember, these were the unhinged years of Michael Moore, Cindy Sheehan, the Bush-Hitler slurs, snuff Bush novels and films, and “Bush lied; people died” gospels.

Sensing a chance to embarrass or wound the Bush Administration, the political and media opponents of Cheney and Bush advisor Karl Rove first went after Libby. They apparently had hopes that he could be charged with something to leverage confessions and thus indictments of his superiors as co-conspirators in the supposed Libby leak of Plame’s CIA status. The leak purportedly was a way of punishing Plame’s stridently anti-Bush husband, Joseph Wilson, who had made unsubstantiated accusations of conspiratorial wrongdoing against the Bush White House.

Finally, the Bush Administration bowed to the growing media-driven pressures. We may forget now that it was none other than acting Attorney General James Comey on December 30, 2003, who appointed his friend Patrick Fitzgerald (sound familiar?) as special counsel. He had appointed Fitzgerald to conduct an investigation “into the alleged unauthorized disclosure of a CIA employee’s identity.”

If we review news stories from this year alone that did not warrant a special counsel investigation—FBI investigators assigned to Robert Mueller’s legal team exchanging venomous texts about the target of their supposed disinterested inquiry; the Obama Administration secretly shutting down government investigations of the terrorist organization Hezbollah’s global drug-trafficking to enhance its signature Iran deal; or the Clinton-funded phony Steele/Fusion GPS file that was peddled to the FBI and may have been used as an argument to get a FISA order to surveille Trump campaign officials and leak their names during and right after the 2016 election—we can remember just how hysterical those times were. The entire country was set afire over the ambiguous status of a single CIA employee and the loud, unfounded conspiracies theories of Plame’s often buffoonish spouse, Wilson.

Much Ado About Little
Fitzgerald spent more than 45 months and $2.5 million to investigate whether Libby had violated federal laws concerning the supposedly confidential status of Plame. Yet Fitzgerald never did fulfill his original mandate of indicting Libby for leaking Plame’s status.

Fitzgerald apparently had learned that Plame may not have been a covert agent after all, given her employment status at the CIA was more or less common insider knowledge. And to the degree some thought she was a covert agent, her status was likely first disclosed to the media by Deputy Secretary of State Richard Armitage, a close friend and subordinate of Secretary of State Colin Powell. That fact was known to Powell, who never volunteered that knowledge to the president when Bush had vowed to find the supposed leaker.

Fitzgerald himself never disclosed those bothersome facts to the public, as he pursued Libby in Inspector Javert style, given that he had neither a real crime nor the right suspect.

Understandably, Fitzgerald could never find Libby guilty of disclosing Plame’s status, much less using him as a tool to indict either Cheney or Rove. Fitzgerald settled instead for charging Libby with obstructing justice and making false statements—and hoped to convict him of something or other before a liberal Washington jury. And he did—before 11 Democratic jurors and one Green Party member.

In other words, the special counsel found Libby inconsistent in his testimonies about a supposed crime that was likely not a crime. And if it was a crime, it was committed by someone else. The final irony was that New York Times reporter Judith Miller, a supposed prime source for Fitzgerald’s accusation of Libby’s leaking, later wrote that in fact she had not been told by Libby about Plame’s status.

So came the final Kafkaesque insult: Libby was found guilty of a crime that did not exist. But had it existed, someone else committed it—a fact known to prosecutor Fitzgerald, who convicted Libby on a lesser charge by relying in part on a source who later confessed that her testimony was inaccurate, a fact also likely known to the prosecutor.

More than a decade later, does all this special counsel runaround sound familiar? After months of the Mueller investigation, no one has yet been charged with colluding with the Russians—the original justification for the media-driven special counsel investigation.

Instead, a few Trump subordinates have either been indicted on various charges apart from collusion, or confessed to fallback counts of making false statements, again with the assumed intent that they might be flipped to testify against their boss Trump. None so far have.

Was there Trump team collusion with the Russians?

No evidence has yet suggested such. The source of most rumors that Trump colluded with Russian operatives seems increasingly likely to have been the so-called Christopher Steele Fusion/GPS dossier. It was a purchased hit-piece folder, cobbled together from various scurrilous rumors about Trump. Many of the salacious details were supplied to ex-British spy Steele by Russian sources with close ties to or actually within, the Putin government.

Hillary Clinton’s campaign team had hired Steele to create a file on Trump as part of its larger opposition research efforts during the 2016 presidential election—an irony given the special counsel’s mandate to find Russian-Trump collusion.

At some point, the Clinton campaign made sure that those in the Obama Justice Department and FBI knew about the fake news dossier—as if the careerists in the FBI and, likely, those in the Obama Justice Department needed much convincing to peruse and disseminate the file and pursue their own investigations of the perceived unseemly Trump—especially given the perceived likelihood of a Clinton victory in 2016.

Turns out, the wife of a former Obama and later Trump Department of Justice official also worked on the file. And the FBI may have paid Fusion GPS to access and confirm its contents.

Further, we may eventually learn that the fraudulent Steele/Fusion GPS documents were used to justify before a federal court surveillance on various Trump campaign employees.

If confessions of false statements were leveraged from former National Security Advisor Michael Flynn by comparing his interviews with FBI agents to FISA-ordered surveillance of prior Flynn’s conversations, would Flynn have grounds for legal action? Had he been entrapped through the use of FISA-ordered surveillance, based on fraudulent information that the FBI submitted to the court and whose veracity James Comey at one point admitted the bureau could not confirm?

How Soon We Forget
We have learned little from the Patrick Fitzgerald fiasco of over a decade ago about the problems of appointing special counsels during periods of media-driven hysteria and then endowing them with generous budgets, wide parameters, and no deadlines.

Once again, a friend of a special counsel is prominent in engineering his appointment as special counsel.

Once again, we bent to media-generated political frenzies and appointed a special counsel to investigate the minutiae of the lives of mid-level officials in hopes of getting the scalps of high administration officials, whose views were considered politically unpalatable, as politics warped the investigation.

Once again, it quickly proved an unlikely gambit because there was likely no crime—in this case, evidence of Donald Trump colluding with the Russians.

Once again, it turned out if there had been a crime, it was more likely committed by someone else—in this case, the Clinton campaign that hired investigators who ultimately worked with Russian sources to find dirt on Trump and thereby undermine his campaign.

Once again, it may turn out that evidence used to convict or coerce a confession from a subordinate was itself based on fraudulent information, a fact that may well have been or should have been known to prosecutors.

Once again, special counsels are running investigations that may ruin reputations, bankrupt defendants, and serve political agendas—but otherwise find little evidence for the crimes for which they were originally appointed to investigate.

We have a word for doing the same thing over and over again and expecting different results.

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About the Author:

Victor Davis Hanson
Victor Davis Hanson is an American military historian, columnist, former classics professor, and scholar of ancient warfare. He was a professor of classics at California State University, Fresno, and is currently the Martin and Illie Anderson Senior Fellow at Stanford University’s Hoover Institution. He has been a visiting professor at Hillsdale College since 2004. Hanson was awarded the National Humanities Medal in 2007 by President George W. Bush. Hanson is also a farmer (growing raisin grapes on a family farm in Selma, California) and a critic of social trends related to farming and agrarianism. He is the author most recently of The Second World Wars: How the First Global Conflict was Fought and Won (Basic Books).