With Liberty and Justice for Some (4 page)

Moreover, during the Bush 43 years, serial lying under oath by high-level political officials became the norm. To gain an appreciation of this culture of crime, one might consider the case of Bush attorney general Alberto Gonzales, whose lies about multiple scandals became so blatant that he was eventually forced to leave office. In 2008, the Bush Justice Department’s own inspector general issued a report on Gonzales’s testimony concerning the NSA’s warrantless eavesdropping program, finding, as
Congressional Quarterly
reported, that there was “strong evidence…that the former attorney general lied to federal investigators probing his careless handling of highly classified documents.” A separate inquiry in 2009 by the DOJ’s inspector general—this one involving the scandal arising out of Gonzales’s firing of eight U.S. attorneys—found that he “may have lied to Congress.” And a 2009 report jointly issued by the inspectors general of five different cabinet agencies concerning the NSA wiretapping concluded that Gonzales had provided “confusing, inaccurate” statements when testifying to Congress about government eavesdropping. Yet even though lying to Congress and federal investigators is a felony under U.S. law, none of those incidents led to any criminal investigations of Gonzales, let alone indictments or prosecutions.

This nonchalant attitude toward Gonzales’s lawbreaking followed the template established during the Watergate and Iran-Contra scandals, where high-level officials had similarly been let off the hook. Tellingly, Oliver North, a key figure in Iran-Contra, became a beloved folk hero on the right
because
of how proudly he boasted of lying to Congress. Consider the following exchange between North and John Nields, counsel to the congressional joint committee investigating Iran-Contra—an exchange that boosted North into superstardom among the Republican faithful and many in the media class.

North then proceeded to proclaim that lying to Congress had been the patriotic thing to do. Days later, North’s loyal secretary, Fawn Hall, captured the prevailing ethos at the Reagan National Security Council when she declared, “Sometimes you have to go above the written law.”

Indeed, many of the key culprits from Iran-Contra—including Elliott Abrams, John Poindexter, John Negroponte, and Otto Reich—went on to occupy important positions in George W. Bush’s administration, while several others ascended to positions of influence in the political and media establishment. Less than a decade after his indictment, Oliver North became the GOP Senate nominee in Virginia. After almost unseating the incumbent, Senator Chuck Robb, he was rewarded with a Fox News contract. Reagan’s defense secretary, Caspar Weinberger, left the government under a heavy cloud of scandal but soon ascended to the position of publisher at
Forbes
magazine. In 2002, he was the featured witness at a Senate Foreign Relations Committee hearing, where he advocated an attack on Iraq while all the senators in attendance—led by committee chairman Joe Biden—treated him with the utmost deference.

That Iran-Contra participants were rewarded with high-profile media posts and sensitive jobs in the Bush 43 administration highlights that lying to Congress is no longer considered a shameful act and is indeed seen by some as perfectly normal, an exercise of a legitimate right by the president and those who work under him. This lenient attitude completely disregards the fact that the law, as enacted by the American people through their representatives in Congress, unambiguously classifies such behavior as a felony.

The embrace of elite immunity is by no means confined to one party. The conviction that political elites should be shielded from accountability is fully bipartisan and has been embraced by every administration over the past several decades. When Bill Clinton campaigned for president against the incumbent, George H. W. Bush, in 1991, he repeatedly argued that there was serious wrongdoing requiring urgent investigation and possibly prosecution. Clinton was referring not only to the Iran-Contra affair but also to the so-called Iraqgate scandal. Iraqgate entailed well-documented allegations that officials in both the Reagan and Bush administrations, in their efforts to fuel Iraq’s war with Iran, had secretly and illegally supplied Saddam Hussein with large amounts of money, weapons technology, training, military intelligence, and even nuclear components. The iconic photograph of Donald Rumsfeld, who was then Reagan’s special envoy to the Middle East, smiling and shaking hands with Saddam in 1985 captured the essence of Iraqgate: the highest-level Reagan and Bush officials unlawfully supporting a regime that had, only a few years before, headlined the U.S. list of “State Sponsors of Terrorism.” (Indeed, when officials in the Bush 43 administration spent all of 2002 and early 2003 beating the drums for war against Iraq, they frequently cited atrocities such as Saddam’s “gassing of his own people”—atrocities perpetrated during the very period when Reagan and Bush 41 were illegally building up Saddam’s military and financial strength and concealing his crimes. Another result of the U.S. support for the Iraqi dictator during the 1980s, of course, was that a stronger and emboldened Saddam soon decided to invade Kuwait.)

But as soon as Clinton was safely elected president, he quickly took steps to suppress any real inquiries into Iraqgate, invoking the same reasoning that had been used to justify the pardons of Nixon and the Iran-Contra criminals. In November 1993, when some establishment journalists still took seriously their role as adversarial checks on those in power, the
Washington Post
columnist Mary McGrory excoriated the new president for his role in blocking accountability.

McGrory’s protests fell on deaf ears. By then, the proclamation that we must “forget yesterday and concentrate on tomorrow” was ingrained Beltway orthodoxy.

Aberrations Quickly Fixed

On one occasion during the Bush 43 years, elite immunity did seem to suffer an exceedingly rare setback. On March 6, 2007, a unanimous federal jury found Vice President Dick Cheney’s chief of staff, Lewis “Scooter” Libby, guilty of four of the five felonies for which he had been indicted. Libby was convicted of two counts of perjury, one count of obstruction of justice, and one count of making a false statement, all of which arose from the lies he told to the Federal Bureau of Investigation and the grand jury as they were investigating the “outing” by Bush officials of CIA operative Valerie Plame. (He was acquitted on another count of making a false statement.)

Libby’s importance in the Bush administration went far beyond his title. He had long been one of the most well-connected politicians in the country. Along with Cheney, Donald Rumsfeld, Paul Wolfowitz, Jeb Bush, and Norman Podhoretz, he was one of the twenty-five signatories to the 1997 founding statement of Bill Kristol’s pro-imperial Project for a New American Century, which had called for an invasion of Iraq more than four years before the 9/11 attacks. Scooter Libby was at the very apex of the neoconservative movement that dominated Washington during the Bush 43 years, a top Bush aide and close intimate of America’s most powerful political and media figures.

But with the announcement of the verdict, Dick Cheney’s leading adviser became a convicted felon. This rare triumph for equality before the law could not have happened but for an improbable set of circumstances. First, Libby had made the mistake of crossing the CIA, which loathes any outing of covert agents. Because it was the CIA that had asked the Department of Justice to investigate the leak, the request had to be taken seriously. Thus, it was not only the perpetrators of the crime in this case who wielded elite status but also one of their prime victims. The CIA insisted that the leak of Plame’s identity violated the Intelligence Identities Protection Act, which criminalizes the disclosure by anyone of the identity of a covert CIA operative.

Second, because the primary culprits were all top Bush aides and perhaps even Bush himself, the president’s political appointees at the DOJ had to recuse themselves from the investigation; the possible conflict of interest they faced—having to investigate their own bosses—was too severe even for our highly permissive political culture. Thus the DOJ was forced to assign full autonomy to a prosecutor who would remain independent of the DOJ hierarchy and could therefore conduct the investigation free from the control of the president’s loyal staff. And third, the independent prosecutor chosen by DOJ officials to lead the investigation, Patrick Fitzgerald, happened to possess an unusual degree of tenacity and aggressiveness when it came to pursuing prominent targets. These circumstances combined to produce the rarest of all Washington events: the prosecution of a truly powerful individual for serious crimes committed while in office.

In his October 28, 2005, announcement of the grand jury’s indictment, Fitzgerald underscored the significance of the event: “I think what we see here today, when a vice president’s chief of staff is charged with perjury and obstruction of justice, it does show the world that this is a country that takes its law seriously; that all citizens are bound by the law.”

The progress of Libby’s trial bore out the lofty ideals expressed by Fitzgerald. On June 5, 2007, the Bush 43–appointed federal judge presiding over the trial sentenced Libby to thirty months in prison. As the Associated Press reported, “In the end, U.S. District Judge Reggie Walton said Libby’s lies in the Valerie Plame affair outweighed his public service.” For a moment, it looked as though a hole had been blasted in the shield of immunity enjoyed by America’s elites. On the day Libby was sentenced, I wrote—rather optimistically, probably naively—in my
Salon
column:

The affirmation of that principle did not last very long. Less than a month later, on July 2, 2007, President Bush announced his decision to commute the sentence completely down to zero—despite Libby’s conviction on multiple felony counts, Libby would serve no jail time whatsoever. And just as his father’s pardon of Iran-Contra criminals ended an investigation that threatened to expose his own wrongdoing, so, too, did Bush’s commutation of Libby’s sentence provide presidential protection to an individual who could well have incriminated the president. Once again, with a wave of the presidential hand, the rule of law was abolished and the rule of men restored.

Remarkably, the same right-wingers who had created the framework of merciless punishment for ordinary Americans rushed to celebrate Libby’s being spared from prison. This attitude was particularly striking given the lack of any partisan angle to the prosecution. The Plame investigation, after all, had been urged by the Bush CIA; the prosecution had been pursued by a Bush-appointed federal prosecutor, and Libby’s prison sentence was imposed by a Bush-appointed federal judge, all in line with the sentencing laws long advocated by the “tough-on-crime” wing of America’s political class. Simply put, the system that directed Scooter Libby to prison had been zealously constructed over the course of decades by the very conservative movement that was now aghast at his plight.

Still, the stench of hypocrisy did not prevent the American right from elevating Libby’s protection to the ranks of its most impassioned causes. Indeed, many conservatives were more furious than grateful toward Bush when he announced his decision. In their eyes, commuting Libby’s sentence did not go far enough; they wanted a full presidential pardon. The crusade to free Scooter Libby became the cause célèbre of the year among the nation’s conservative elites. The list of Bush supporters agitating for an immediate pardon included Bill Kristol and
National Review
’s Ramesh Ponnuru, while former Bush aide David Frum declared the prosecution a “travesty” and demanded: “Pardon Libby Now.” Fred Barnes, cofounder of the
Weekly Standard
, went on Fox News and assured viewers that it was only “a minor case,” that Libby has “been a loyal and effective member of this administration,” and therefore “there’s every reason to pardon him.”
National Review
’s Byron York, meanwhile, cast aspersions on the integrity of the jurors.