Cover-Up For a Nonexistant Crime

The latter stages of the Valerie Plame Affair are playing out like nourish drama, replete with sinister doings, shady characters and plenty of plot twists. The only problem for conspiracy enthusiasts is that the players are behaving more like bumbling Elmore Leonard caricatures than suave masterminds.

Consider, for instance, the White House’s alleged role in the scandal. The impetus behind this entire investigation is a 1982 law that forbids the disclosure of a covert operative’s identity. Given that Plame was outed by Robert Novak in a column and identified to Matthew Cooper by Karl Rove, it’s pretty obvious the law has been broken, right?

Think again. As John Tierney tells us, Valerie Plame was working at CIA headquarters when her identity was revealed. It is doubtful, therefore, that she would qualify as a covert agent under the law. Given that, can we assume that Rove should be completely exonerated?

Not exactly. President Bush, if you recall, promised to take action against anyone in the administration who leaked classified information. That would mean Rove, and, if the NY Times is right, Scooter Libby as well. Furthermore, Rove has already lied continually about being the source of the leak, or, even more surreptitiously, about even having knowledge that the leak occurred. If he continues to march down the path of dishonesty amid a Justice Department investigation, he will likely find himself facing charges of perjury or obstruction of justice.

Sadly, all of this might have been averted if Rove, Scott McCllelan, et al simply came clean from the beginning. If they didn’t break the law (which I’m fairly certain they didn’t), they would have nothing to hide. Now, their denials and deflections are coming back to haunt them. As numerous commentators (many of them conservative) have noted, Rove’s attempt to split hairs over the word “involved” evokes Bill Clinton trying to call into question the definition of “is.”

Naturally, Democrats have been salivating over the investigation so far. And, while I can’t blame them for going on the offensive, they should wise up and realize that the White House isn’t going to fire Rove. He’s simply too valuable to be dismissed over something like this. Unless he comits/commited a crime, he’s here to stay. Besides, any talk about the appearance of impropriety is a moot point when discussing a political operative of Rove’s caliber (let’s not forget the McCain smear back in 2000).

If anything, this investigation is working evidence that people don’t get what they deserve. Valerie Plame, the victim of the non-crime, has been out and about with her husband Joe Wilson since being outed. Both are popular in leftist circles and can expect to reap the benefits of future book deals and media exposure.

Bob Novak, who actually did the outing, hasn’t even as much as received a slap on the wrist. He didn’t break any laws, but he stands guilty of exercising poor journalistic judgment (though calling his ethics in question is enough to send the old timer into conniptions).

Judith Miller, who did not do any outing whatsoever, sits in jail. Unlike Novak, she did what journalists are supposed to do, which is protect (rather than burn) sources. Her heroism here makes up for her shoddy WMD reporting of years’ past.

As per Rove, Libby and the rest of the White House gang, only time will tell. Like all political scandals, actual issues of guilt or innocence are going to take a back seat to whomever’s sympathies (Wilson’s, Rove’s) are held by They Who Yell the Loudest (Hannity, Franken, etc.).

Sandra Day and the Looming Fog

Thanks to Sandra Day O’Connor’s surprise retirement (though at age 75, it couldn’t have been too surprising), the Senate faces yet another contentious confirmation battle. As was the case with John Bolton, Janice Rogers Brown et al, there is likely to be a lot of overblown histrionics and rhetorical saber-rattling. This time, however, the voice of undue obstruction will probably come from the right.

While Democrats have already thrown in the towel and conceded (quite wisely, I might add) the fact that the next Supreme Court justice will be a conservative, right wing activists are already up in arms about the nomination. Conservatives have all but preemptively blockaded Attorney General Alberto Gonzales, claiming he doesn’t veer right enough on issues like abortion and affirmative action.

This objection underscores the conservative paradox with regard to constitutionality. If the goal of conservatives is to quell judicial activism and uphold the Constitution, they cannot support a candidate with a stated anti-abortion/anti-gay/anti-drug agenda. Since the Constitution is virtually mum on those issues, using the federal judiciary to set policy would be as egregious a form of judicial activism as the Warren court decisions, though conservatives aren’t likely to see it as such.

Furthermore, objecting to a moderate conservative at this stage of the game makes zero sense for practical reasons. As O’Connor was a moderate, replacing her with a moderate conservative wouldn’t ruffle any feathers. Replacing her with a rightwing activist, however, would cause a lengthy confirmation battle and pose problems when Justice Rehnquist finally decides to step down.

Given the recent turmoil in congress, it’s surprising that the Democrats (with the perennial exception of Ted Kennedy) have been the ones to show greater maturity as the nomination process begins. Chuck Schumer has spoken highly of several of the potential nominees and Harry Reid recommended Mel Martinez firsthand. Whether or not this newfound diplomacy holds will be something to keep an eye on for the future.

One name that isn’t being mentioned is Richard Epstein. A Chicago law professor, Epstein has a vision of jurisprudence that would likely result in overturning the recent Raich and Kelo abominations as well as a score of other bad decisions.

Regardless of who gets the nomination (and, more importantly, who gets confirmed), this will likely be a turning point in the history of the court. While O’Connor was a pragmatist in approach, she was guided by federal ideals. The rest of the Rehnquist court, however, was marked by spineless inconsistency (Souter, Kennedy) and judicial activism from the left (Ginsburg, Stevens, Breyer) and right (Scalia). The time is right for a judge of principle to take the bench, provided the senate and the president can agree on what the principle would be.