Michael Kinsley has an interesting column in the New York Times today discussing what he labels the perjury trap.
His argument is that Scooter Libby, like Bill Clinton before him, was caught in a dilemma: commit perjury and go to jail for that or tell the truth and face unpleasant consequences for that (including, in Libby's case, possible jail time for a different crime).
I disagree with Kinsley's characterization of Bill Clinton's impeachment being "about sex." It was only "about sex" because Clinton so effectively persuaded so many people to lie under oath for him. Monica Lewinsky didn't figure into Prosecutor Kenneth Starr's equation until he started looking into Vernon Jordan's business connections, after all.
On the other hand, I agree with Kinsley's characterization of Libby's situation as being about leaking as opposed to lying, and this is where the NYT and all news organizations showed their own hypocrisy.
The crime, if there was one, was leaking government secrets to journalists. If you were investigating that crime, where would you start? Yes, of course, by questioning journalists. The government leakers, if you found them, would be protected by the Fifth Amendment. You would need more and different evidence, and only journalists had it.
The special prosecutor, Patrick Fitzgerald, followed this commonsense logic straight into a First Amendment buzz saw. News organizations that insisted on the need to get to the bottom of the leak also insisted that no journalist should have to supply information to this investigation...
It takes two to leak. How can it be fair that one party to the leak doesn’t even have to testify about it, because leaks are so vital to the First Amendment, while the other party might go to prison for it? And if that is unfair, how is a perjury trap fair when it forces a leaker to choose between going to prison for the leak and going to prison for lying?
So as much as I dislike the war in Iraq, as much as I dislike President Bush, as much as I expect that I would dislike Mr. Libby if I ever met him, I feel that he should not have had to face a perjury trap: the choice between prison for lying, or prison for his role in a set of transactions that the press regards as not merely O.K. but sacrosanct. In fact, if journalists had a more reasonable view about this, the reporters whom Mr. Libby tried to peddle this story to would have said, "Look, outing C.I.A. agents is bad and we are not going to help you do it anonymously." I bet that today, commuted sentence and all, Mr. Libby wishes they had done just that.
I often wondered throughout Libbygate why it was seemingly all right for journalists to print whatever they were told by leakers instead of being held to the same standard as the leakers. The answer goes back to the Pentagon Papers' case, where the court determined that the government had a heavy burden to meet before it could restrain the publishing of material.
Captain Ed discusses Kinsley's piece and the hypocrisy of MSM in its philosophy on leaks.
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