On Rove, Plame, Cheney, Miller, etc.

I am going to have to disagree slightly with my colleague, Peter Levine, on this one (here and here). This more recent post qualifies his earlier thoughts on the matter:

...My thought: People who are under investigation are innocent until proven guilty. The political consequences of any convictions would probably be bad for Bush, although they might provoke a backlash favorable to his interests. In any case, it is crucial not to focus on the short-term political consequences for any person or party, but rather on justice and the long-term consequences for law and our political culture. To be sure, failing to investigate people like Rove, Libby, Frist, and DeLay could create a culture of impunity. On the other hand, targeting politicians for prosecution can be just as damaging, if it makes public service appear dangerous, if it convinces the opposition party to rely on criminal convictions rather than arguments about policy, or if it causes us to ignore constitutional principles (as was clearly the case in the Ken Starr investigation). Rove has done "collateral damage" to American political culture, but that doesn't excuse prosecuting him in ways that would make matters even worse.

Peter earlier suggested that the Rove et al investigations are a kind of sideshow distraction from getting down to the real work that political leaders ought to be doing. Furthermore, it reinforces the popular perception that politics is largely crooked, thus dissuading good people from going into politics or even engaging in politics at the basic level of voting. In the excerpt above, he clarifies what he means. And we could add another point -- a pragmatic political point suggested by David L. -- that the investigations may simply be setting up a next round in a Democratic administration, and so on ad infinitum. You can say Republicans started it with Clinton, but they'll look back to Nixon to say Democrats started it -- Democrats will say the Clinton impeachment was payback for Nixon....

I think, however, that this presidency has created a culture of impunity or at least faith in their own impunity and this has had dire -- indeed criminal -- consequences that will play out not only in the short term but also the long term. This includes not only the corruption of Delay, Rove, Frist, and Cheney, but also the Iraq War, Social Security, education policy, environmental policy, public trust in the institutions of suffrage and representation, and international relations generally. My earlier posts on legitimacy were partially trying to get at this point.

It has to be emphasized that domestic accountability and international legitimacy are crucial at this moment for the future of any decent political culture in the United States. I don't think it's a matter of "collateral damage." Yes, a big partisan battle here could simply create a further mess. But that's unlikely to happen for the reason that Congress is majority Republican and, in several cases, the prosecutors and investigators are Republican appointees. Add to this the fact that the Democrats have been largely silent and/or ineffective, and I just don't see an equivalence with the partisan battles over Clinton's peccadilloes and ultimate perjury, and the suspect constitutionality of the Starr investigation.

The left has a real opportunity to stand on principle here -- to stand up for accountability, anti-corruption, transparency, democracy. This may not come from the Democratic Party itself because it could very well expose a lot of their own dirty laundry. But the opportunity cannot be missed from the left, and I believe there's a broad American public just waiting for the word if it is spoken in their language. The scandals shouldn't be used as a way to gloat, but as a way of truly reconstructing political dialogue and political life in the United States by reinvigorating those aspects of "the experiment" that are a necessary requirement for its continuation. Peter and I would both agree on that. The investigations and prosecutions simply have to go through and we should not hold back from exposing the corruption, lack of transparency, lack of accountability, and the overall disdain for democracy by this administration.

UPDATE (19 October 9am):

Peter, in the comments, asks "What do you think of the argument that it will hurt the First Amendment to prosecute Rove and/or Libby for (allegedly) releasing true information to the press?"

I dunno, is the short answer. The longer one too, so I'll spare you that. Check out this July article, however, on whether Plame should sue Rove. The author says,

In its 1989 decision in The Florida Star v. B.J.F., the Supreme Court held that a newspaper which revealed the name of a rape victim -- in violation of a state law -- could not be sued for a privacy tort by that victim because of the First Amendment.

But there are a number of reasons to think that cases like Florida Star are distinguishable from the sort of suit Plame might bring.

To begin with, courts have discussed limiting the privacy tort only in the context of the First Amendment's protection of the press. Plame would not want to sue the reporter who published her identity, but the person who called the reporter.

Furthermore, in Florida Star, the court contemplated the case of classified information, and hinted that it did not think that even the media should be allowed to invade a citizen's privacy by printing intelligence classified by the government with impunity. The court would be likely to take an even dimmer view, crime or no, of a government employee's doing the same.

A skeptic might object that the lawsuits I have described are the kind of "junk" lawsuits that give tort lawyers a bad name. The skeptic might object that, unless Plame knows a lot more than has been revealed in the press, it would be pure speculation for her to sue Rove or anyone in the White House now.

Two further considerations:

1) admitting that we don't yet actually know who precisely is responsible for the leak, a recent article (can't find the link -- I believe it was in the Washington Post) noted that the Fitzgerald investigation was aided by Scooter Libby's distortions of the truth. These, it was suggested, are easier to trace to the source than the release of the simple fact of Plame's identity. In other words, disinformation retains a kind of personality that leads to its source. So, it appears unclear whether the leak involves "true information" or, rather, innuendo. The "Valerie Flame" nonsense and the Twister game Miller and Libby are playing appear to me to be signs of a deeper attempt to distort the truth knowingly in order to cover their tracks. Could it be that one upshot is that the First Amendment does not apply?

2) Article II, Section 4 of the US Constitution on treason. I don't know the extent to which the leak counts in legal terms as treason nor in what ways, precisely, prosecution of the leaker would follow constitutional principles. But the case could amount to treason, constitutionally speaking.

Other than this, I just don't know enough to say more on the question. I'd be happy to have further comments to help sort it out.