With Liberty and Justice for Some (5 page)

Marty Peretz, then the owner of the
New Republic
, proudly announced he was on the board of the Libby Defense Fund, a group of influential political and media figures who raised millions to pay for Libby’s high-priced team of lawyers. Pronouncing Libby “brilliant, very honest, and brave,” Peretz concluded that “the charges against Libby should go into the trash.” The
Wall Street Journal
editorial page insisted that “Mr. Bush owes the former aide a pardon, and an apology” and “the time for a pardon is now.” In an interview he gave after leaving office, Dick Cheney admitted that Bush’s refusal to grant Libby a full pardon was among his most contentious disputes with the president in the eight years they worked together.

In demanding full-scale exoneration of Libby, his elite defenders were completely unconcerned with precepts of law and with questions of his guilt or innocence. What preoccupied them was not what Libby had done, but who he was. As they saw it, Libby was the kind of person who did not deserve to be branded a felon—and thus could not be a felon—even if he had committed felonies. For a man like Libby, punishment was simply inappropriate.

One of the very few Republicans to speak out against special protection for Libby was the long-shot presidential candidate and former Virginia governor Jim Gilmore. When candidates were asked during a 2007 GOP presidential debate whether Libby should be pardoned, Gilmore opposed the notion, attributing his position to the fact that he was “steeped in the law.” He then eloquently elaborated in an interview with the
Los Angeles Times
: “If the public believes there’s one law for a certain group of people in high places and another law for regular people, then you will destroy the law and destroy the system.” Of course, Gilmore could afford to take such positions because he had virtually no chance of winning the nomination. Almost every other GOP candidate came out on Libby’s side.

Media “Watchdogs” Demand Elite Impunity

Support for Scooter Libby did not come from conservatives alone. It soon became apparent that establishment journalists would be as vigorous in demanding protection for Bush’s disgraced aide as they had been in advocating immunity for Richard Nixon and Caspar Weinberger.

Shortly after Libby’s sentencing,
Time
’s Joe Klein was just one of numerous prominent media figures fuming over the prospect that One of Their Own might end up in prison. In a piece titled “Thoughts on Sentencing,” Klein actually prefaced his defense of Libby by insisting that it was of the utmost importance for Paris Hilton to receive jail time for driving with a suspended license because “it is exemplary: It sends the message…that even rich twits can’t avoid the law.” That same reasoning, however, apparently did not apply to Dick Cheney’s top adviser.

There are so many false and misleading assertions crammed into these few sentences that it is difficult to know where to begin. It is worth the effort to unpack them, though, because Klein’s defense of Libby reveals just how our media class reasons when it comes to the political figures whom they claim to hold accountable.

Note, for instance, the snide use of quotation marks for “perjury”—as though Libby’s conviction constitutes that crime only in the most technical and meaningless sense, if at all. In fact, Libby’s lies to the FBI and the grand jury obscured the actual leakers’ identities and thereby significantly obstructed the government’s efforts to determine what happened. As Fitzgerald had put it when he announced Libby’s indictment: “What we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He’s trying to figure what happened and somebody blocked their view.” The University of Arizona professor Jonah Gelbach elaborated (emphasis in original).

Contrary to Klein’s breezy efforts to trivialize them, Libby’s crimes were serious not only in the abstract but for the substantial impediments they deliberately put in the way of the government’s efforts to determine whether underlying crimes had occurred.

It is also worth noting that Klein deliberately made no mention of the several felony counts of obstruction of justice and false statements for which Libby was convicted; his only crime, Klein implied, was “mere” perjury. More dishonest still was Klein’s manner of insinuating that Libby’s conviction and sentencing were politically motivated (that none of this would have happened “if he weren’t Dick Cheney’s hatchet man”) while inexcusably concealing from his readers that Libby’s prosecutor and the judge who sentenced him were both Republicans and appointees of George W. Bush’s administration.

But the most glaring falsehood in Klein’s Libby defense is also the most significant for our purposes: namely, his claim that “perjury” is something for which people are not convicted and imprisoned unless they are “celebrities,” and that Libby was being persecuted because of his elevated position. In fact, the opposite is true: many far less famous or powerful Americans have been sent to prison or otherwise punished for the crimes of obstruction of justice and perjury. Here are just a few illustrative examples.

• “The United States Attorney in Manhattan, Rudolph W. Giuliani, declared yesterday that the one-year prison sentence that a Queens judge received for perjury was ‘somewhat shocking.’ ‘A sentence of one year seemed to me to be very lenient,’ Mr. Giuliani said, when asked to comment on the sentence imposed Wednesday on Justice Francis X. Smith, the former Queens administrative judge” (
  New York Times
  , September 11, 1987).
  
• “A Boston police officer was sentenced late yesterday to 2 years and 10 months in prison after being convicted in federal court for perjury and obstruction of justice during a grand jury investigation of the unlawful beating of a fellow plain clothes police officer” (
  Business Wire
  , September 30, 1998).
  
• “Still insisting that he never took a payoff or tried to hide evidence, former East St. Louis Police Chief Ronald Matthews began serving 33 months in prison Monday after a judge sentenced him for obstruction of justice and perjury” (
  St. Louis Dispatch
  , March 21, 2006).
  
• “Prison sentence for perjury in a bankruptcy case: A federal judge today sentenced Douglas W. Cox, 44, to ten months in prison. In April, Cox admitted that, during a bankruptcy deposition, he testified falsely about the ownership of five vending machines” (U.S. Department of Justice Press Release, November 2006).
  

Clearly, Klein and other media defenders of Libby have it exactly backward: it is not uncommon for people to be punished for obstruction of justice and perjury. What is uncommon is for anyone to pay attention when it happens, let alone object on their behalf, because they typically are not people with powerful connections.

Klein’s indignation over Libby’s unfair treatment was echoed by many in the establishment media. The former
Time
editor in chief Norman Pearlstine wrote a book denouncing Fitzgerald’s investigation, while the
New York Times
columnist David Brooks condemned the prosecution in multiple venues as a “farce.”

But perhaps the most revealing pro-Libby defense came from the
Washington Post
’s Richard Cohen, who—as we just saw—had gleefully celebrated the pardon bequeathed to his “Safeway buddy” Caspar Weinberger. Cohen’s June 2007 defense of Libby was a true tour de force of apologia, highlighting the function of our Beltway media stars when it comes to elite immunity. Grieving over what he considered the grave and tragic injustice brought down upon the newly convicted felon, Cohen unleashed a paragraph that perfectly captures how many establishment journalists view their role vis-à-vis top political leaders.

Just as Klein did, Cohen managed to pack multiple falsehoods into his Libby defense. He told his readers, for instance, that a special prosecutor was appointed to investigate the Plame leak “at the urging of the liberal press,” and later on in the column he pinned the blame for Libby’s terrible plight on “antiwar sanctimony,” “an unpopular war,” “opponents of the Iraq war,” and “a vestigial Stalinist-era yearning for abasement.” Somehow, Cohen attributed Libby’s prosecution to left-wing culprits even though the investigation began when a complaint was filed by the CIA, proceeded when the Bush DOJ appointed a GOP prosecutor, and then ended when a Bush 43–appointed federal judge sentenced Libby to prison.

Cohen went on to chastise Fitzgerald for having been unfairly harsh in his investigation, especially for terrifying the famous journalists whom he subpoenaed to testify. Cohen protested: “As any prosecutor knows—and Martha Stewart can attest—white-collar types tend to have a morbid fear of jail.” Of course, blue-collar types, and poorer ones still, do not mind prison at all. Why would they? It’s their natural habitat, where they belong. Prison is for people like them.

Under this view, law is needed to control and constrain the ignoble masses (that is, the powerless), who will otherwise spread chaos and disorder. But the noble among us need no constraints. Indeed, the opposite is true: society is better off if the most privileged are free to act without limits, for that will maximize the good they can produce for everyone.

In all the media outrage over the plight of poor Scooter Libby,
that
was the point all along. And the spirit of Cohen’s objection infuses the crusade for elite immunity in general. The real injustice is to consign the powerful to prison, even if they are guilty of crimes. There is a grave indignity to watching our vaunted political elite being dragged through criminal proceedings and threatened with jail time as though they were common criminals. How disruptive and disrespectful and demeaning it all is.

The overriding allegiance of our permanent Beltway class—including its media—is to the royal court that accords them their status and prestige. That overarching allegiance overrides any supposed partisan, ideological, or other divisions. That is what explains why the neoconservative Lewis Libby and the “liberal pundits” Joe Klein and Richard Cohen are colleagues and comrades in every way that matters. High members of the royal court are, first and foremost, defenders of their swamp. And the most revered and highest-ranking among them shouldn’t ever be punished, let alone imprisoned, for practicing what Cohen admiringly called their “dark art”—whether that comes in the form of illegal eavesdropping, illegal torture, illegal arming and funding of outlaw regimes, or illegal obstruction of justice.

To be sure, this dynamic has prevailed in imperial capitals for centuries. And it is what explains much of official Washington. The crux of political power (the White House) is the royal court, the most powerful leader (the American president) is the monarch, and his highest and most trusted aides are the gate-keepers. Those who are graced with admission and access to the royal court—including “journalists”—are grateful to those who grant them that privilege. They are equally grateful to the political culture on which their special status, privileges, and wealth depend. Naturally, the journalists’ impulse is to protect those who bestowed such favors on them and to promote the culture that sustains them, even as they sentimentally invoke their supposed role as watchdogs over the powerful—a role that they long ago ceased to perform.

Self-Perpetuating Elite Immunity

In a culture of immunity, powerful elites quickly learn that they can act without constraints, that lawbreaking entails no consequences. Even more striking, they come to believe that they actually
merit
their privileged standing. The notion that the most powerful are too important to be subjected to prosecution becomes not merely a pretext to justify lawlessness to the public, but a genuine conviction on the part of those vested with those prerogatives.

A 2009 study conducted by Joris Lammers at Tilburg University in the Netherlands and by Adam Galinsky at Northwestern University in Illinois sought to determine how power and powerlessness affect a person’s moral pliability. The researchers found that those in positions of power not only violate rules much more readily but feel far less contrition about their violations because their power leads them to a consuming, blinding sense of entitlement. As the
Economist
summarized the study’s findings: “Powerful people who have been caught out often show little sign of contrition. It is not just that they abuse the system; they also seem to feel entitled to abuse it.” Further, “people with power that they think is justified break rules not only because they can get away with it, but also because they feel at some intuitive level that they are entitled to take what they want. This sense of entitlement is crucial to understanding why people misbehave in high office. In its absence, abuses will be less likely. The word ‘privilege’ translates as ‘private law.’”