Merry Fitzmas?

For the most part, I've been pretty scrupulous in avoiding the Plame scandal (My co-bloggers at TMV are doing an excellent job covering the developments, here for the latest post). Not because I don't think it's important, but because the legal issues fly way over my head and I don't like talking about indictments and crimes and punishments when I have no idea what the relevant laws are or whether they've been breached. And I'm especially reluctant to do it when the subjects of the investigation are people like Karl Rove, whom I despise. I don't trust my own objectivity.

I'm also inclined to agree with John Cole: if Fitzgerald doesn't hand down any indictments (of major figures?), a significant portion of the left will implode in a spontaneous fit of outrage. We need to be careful not to put the cart before the horse.

But there is one thing that is absolutely true, and Publius of Legal Fiction nails it. If (keep that "if" in mind) a senior Republican official committed perjury in the process of outing an undercover CIA agent, a lot of Democrats will be gleefully waving Republican quotes from the Clinton era about how incredibly awful a crime perjury is, impeachable offense, etc etc.. Republicans will undoubtedly dredge up Democratic quotes from the same era dismissing perjury as a minor offense. Publius warns us to avoid getting caught up in this moral equivalency game:

I don't want the dialogue to get mired in the Swamp of Moral Equivalence (where both sides are always equally right and wrong) that seems to be a permanent template that people like David Broder project on to the world. Though I realize what I'm about to say has a "heads I win, tails you lose" ring to it, I think it's true. Under the hypothetical above, I think the Republicans get it wrong both times. And the reason is context. Perjury - like all things - must be viewed in context. I'm not saying that perjury is good - it's never good. But the question is not whether it's good (it's not), it's whether it is sufficiently bad to warrant impeachment or indictments of senior administration officials. And that depends entirely on context.

Clinton's perjury involved a private sexual affair. That's not to excuse it - it's only to say that it doesn't rise to the level of impeachment given the circumstances. If Clinton had committed perjury in the context of Travelgate or Somalia, that's an entirely different matter. And I would have said impeach his ass. That's because it would be perjury in the context of his public duties and responsibilities. Again, not good - just not sufficiently bad for impeachment.

Libby's perjury (if it exists) was in the context of an official DOJ investigation into an outing of a CIA agent. There was nothing private about it. If Libby lied about an affair or private past drug use under oath, I don't think that would warrant an indictment. It would be bad, but it wouldn't justify prosecution. Lying to the FBI about this particular investigation, however, is completely different. This is an investigation into Libby's public action as a public official with knowledge gained as a result of his public authority. There's nothing private about it. Perjury in this context is indictable. The public action undermined national security no matter how sketchy or partisan Joe Wilson is.

It's the whole "which is worse, lying about sex or selling weapons to terrorists in Nicaragua" point. Again, I hesitate to prejudge prior to the indictments coming down. But on a moral level (which exists apart from the legal case), there is a significant qualitative difference between what Clinton did and what Libby (or Rove or Cheney) is accused of doing. We should not tolerate attempts to equate the two.