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It's Only Fair To Commute Libby

By Ed Koch

Let me now -- and not for the first time -- rush in where angels fear to tread. I support President Bush's commutation of Scooter Libby's prison sentence.

I have never met Mr. Libby. I have not been asked by any of his friends or family to assist him. So why am I taking this step, which is sure to be criticized by many of my friends and supporters?

It is because I believe in fairness. To remain silent because speaking out would not be popular is to invite punishment in the world to come.

What are the facts in the Libby case? The story begins when Robert Novak, a widely syndicated reporter, revealed in his newspaper column of July 14, 2003 that a woman named Valerie Plame, was a CIA covert (secret) operative.

A federal law makes such disclosure subject to criminal sanction under certain circumstances. Democratic opponents of President Bush -- believing that Novak's source was the White House -- ignited a firestorm of protest. The flap became so heated that the Deputy U.S. Attorney General James B. Comey appointed a special prosecutor, Patrick Fitzgerald -- then and now the U.S. Attorney from Illinois -- to investigate the disclosure.

Novak was questioned by the special prosecutor before a grand jury, whose proceedings are secret. Indeed, it is a federal crime to release such testimony. It is now known that the U.S. Attorney was told that the information did not come from the White House. The person who leaked the information to Novak was in fact former Deputy Secretary of State Richard Armitage, a Clinton appointee.

Novak, in his column of July 5, 2007, wrote, "Even before he began his long investigation, Fitzgerald was aware that the leak to me that started the case was made by then Deputy Secretary of State Richard Armitage. No proponent of the Iraq intervention, Armitage did not neatly fit left-wing conspiracy theory about Iraq policy. Consequently, he disappeared from the Internet blather about the CIA leak constituting treason. Armitage was not indicted because the statute prohibiting the disclosure of an intelligence agent's identity was not violated. But Fitzgerald ploughed ahead with an inquiry that produced obstruction of justice and perjury charges against Libby though there was no underlying crime."

Libby, who had been chief of staff to Vice President Dick Cheney until his indictment, was interviewed by the FBI (any statement to the FBI is deemed by law to be made under oath) and was questioned before the grand jury. In both situations, he apparently stated that he first heard the name of Valerie Plame and her CIA connections from journalist Tim Russert of "Meet The Press" fame. Russert was called before the grand jury and apparently testified and repeated his testimony publicly that he had done no such thing and did not know of Ms. Plame at the time of the alleged conversation with Libby.

Libby was indicted and convicted of perjury and obstruction of justice for misleading law enforcement agencies seeking to ascertain who had leaked the information about Ms. Plame. Neither Robert Novak nor Richard Armitage was ever prosecuted in this matter, although Novak had published the material and Armitage had provided the information to him. The law is, apparently, extremely technical and proved too difficult to apply to either Novak or Armitage. The New York Times described the problem, "A prosecutor seeking to establish a violation of the law has to show an intentional disclosure by someone with authorized access to classified information. That person must also know that the disclosure identifies a covert operative 'and that the United States was taking affirmative measures to conceal such covert agent's intelligence relationship to the Unites States.' A covert operative is defined as someone whose identity is classified information and who has served outside the United States within the last five years. "

Libby was convicted of perjury and obstruction of justice and received a sentence of 30 months in prison, 2 years' probation and a $250,000 fine. President Bush has now commuted the prison time and left intact both the civil fine and probation. Unless he wins his appeal, Libby will also be disbarred as a lawyer. After all appeals have been exhausted, the President reserves his right to issue a full pardon.

My own belief is that when Libby answered the question by saying it was Russert who told him about Valerie Plame's CIA status, he was providing information that he believed to be true. Surely, he knew Russert would be asked if that occurred. If Libby's recollection failed, that would not be the basis for charging him with a crime. Only if he deliberately lied could he be accused of perjury.

Would anyone, particularly someone in high government office with an exemplary record of public service and admittedly a high achiever under these circumstances, lie, deliberately misstate the facts where his testimony would be refuted by a popular television personality certain to be asked? It defies common sense. If he were deliberately lying, he would have said, "I can't recall," or "I think it was Tim Russert," leaving the opportunity to admit error, and in neither case could he, I believe, have been indicted and convicted.

Why is there such an enormous furor, particularly in Democratic political circles, demanding that Libby go to prison? I believe it is the kind of mob rage that has regrettably dominated American politics. The anger that existed against FDR, Truman, Bill Clinton, Ronald Reagan and currently, the team of Bush and Cheney. That mob hate of Bush and Cheney for a host of reasons -- the Iraq war, the two elections that elected and reelected them, their tax policies, their attitudes and policies directed at Islamic terrorism and a dozen other issues. They know they can't directly strike at Bush and Cheney whose terms of office dwindle with each passing day. They are striking at Libby as their surrogate. If they could in their lust for blood and vengeance, they would perform an auto de fe and burn Libby at the stake.

Some will respond, "A jury found him guilty, how can you question their collective judgment." Many of those people believe, as I do, that the jury that found O.J. Simpson not guilty was wrong and have no problem in questioning the verdict of that jury.

Regrettably, the politics of hatred rules the day. In this atmosphere of hysteria and rage, we should remember that the demons of yesterday -- FDR, Truman, Clinton and Reagan -- are hailed by many of their former critics as political saints of today.

Ed Koch is the former Mayor of New York City.

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