Wednesday, February 07, 2007

Prosecutorial Discretion?

What is the logical process for investigating complaints of laws being broken? You might think that the first thing investigators would do would be to make sure a law had been broken. That would be reasonable, wouldn’t it?

To most people, it would be, but not to everybody, and not to some people in the position to investigate complaints.

Failing to find a wrong had been committed before beginning an investigation into the complaint, as if the complaint were valid, is nonsensical, and yet that is precisely what the U.S. Justice Department has done in at least one case. And the result was injustice.

In the case of the alleged “outing” of a CIA operative, Valerie Plame, the investigation began before it was determined that Ms Plame had been “outed.” For her to have been outed she would have had to meet certain legislative criteria for being an undercover CIA operative, and the first responsibility of federal prosecutors was to have determined that Ms Plame was indeed an undercover operative, and if she was, and if her cover was blown by someone making it known that she was, then a crime was committed and an investigation would be justified to find out who let the cat out of the bag.

Unfortunately, Ms Plame’s status as an undercover operative was not determined before the investigation began, a clear screw up by the prosecutor, Patrick Fitzgerald. Ultimately it was determined that Ms Plame did not meet the criteria for being classified as an undercover operative, thus no crime had been committed, and therefore no investigation was warranted. More unfortunately, however, was the fact that an investigation was held into a crime that wasn’t committed, and while no one was indicted for outing an undercover operative (since Ms Plame was not in fact an undercover operative), one person was indicted for “lying” about details about the alleged outing of Ms Plame, who was in fact not outed at all.

Lewis “Scooter” Libby is now on trial for perjury in a case that is not a case. How can someone be indicted and tried for lying about details of the outing of an undercover agent when the person in question was not an undercover agent? No harm, no foul, right?

Not in the United States of America. Just ask Martha Stewart, who fell victim to the prosecutorial misfeasance displayed by Mr. Fitzgerald against Mr. Libby.

A lot of people in this country are worried that the government is encroaching on our rights by listening in on overseas telephone conversations of suspected terrorists. I submit that we are in far more danger from overzealous prosecutors in cases such as Mr. Libby’s than from spying on suspected terrorists.

When the federal government can indict you and put you on trial and perhaps jail you for what may be no more than a bad memory about an event that was not a crime, I say we are in deep trouble.

What say you?

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