Now Clinton Knows How Scooter Libby Felt

(Bloomberg View) -- As Democrats exhale after FBI director James Comey's announcement that his probe into Hillary Clinton's private e-mail server remains closed, my thoughts turn to Scooter Libby.

You may remember him. He was the aide to Vice President Dick Cheney who Democrats said disclosed the identity of an undercover CIA officer named Valerie Plame to the late columnist Robert Novak.

Like the e-mail scandal that obsesses Washington on the eve of the election, Plamegate on its surface was about the mishandling of state secrets. Also as in the investigation into Clinton's e-mail, Comey played an important role. After being confirmed as deputy attorney general, Comey recused himself from the case and recommended that his friend Patrick Fitzgerald take it up as a special prosecutor.

But the main similarity between Libby's ordeal and the ones facing Clinton and her aides is how both targets were tried and convicted in the press before facing a trial. So it's worth noting that last week on Nov. 3, Libby was reinstated to the DC bar -- a signal that the bar considers his perjury conviction to be less than convincing.

This wasn't how it was supposed to turn out. Eleven years ago many of the liberal journalists who today deride the FBI for leaking about its probes into Clinton were gobbling up leaks from Fitzgerald's office about Libby.

But those leaks were all wrong. He was not the source for Novak's column about Plame. That was Colin Powell's deputy, Richard Armitage. Like his boss, Armitage opposed the neoconservatives in the George W. Bush administration and was spared the wrath of Democrats and journalists who were turning against the Iraq war.

The press also exaggerated the damage done by the disclosure of Plame's identity. As the CIA's former general counsel, John Rizzo, wrote in his 2014 memoir, "There was no evidence indicating that any CIA source or operation -- or Plame herself, for that matter -- was placed in jeopardy as a result of the 'outing.'" Rizzo went onto say the whole four-year investigation and prosecution was a "colossal waste of time and money," and that he was surprised such a "marginally harmful leak" would be investigated, given how many more damaging leaks are never investigated at all.

Fitzgerald never charged Armitage with a crime. Instead he nailed Libby on obstruction of justice, and a grand jury concluded that he lied to FBI investigators, even though Libby to this day maintains his answers to the bureau were because of his faulty memory. President George W. Bush commuted Libby's sentence but never pardoned him.

A pardon of sorts came last week when he was reinstated to the DC bar. According to the National Law Journal, the disciplinary counsels to the bar concluded that Libby did not have deficiency in his character despite his convictions. They also noted that "Libby has presented credible evidence in support of his version of events and it appears that one key prosecution witness, Judith Miller, has changed her recollection of the events in question." Indeed, Miller in her memoir released this year wrote that Fitzgerald tricked her into falsely testifying against Libby by withholding relevant information he had obtained in his investigation. 

All of this is relevant as we consider the disclosures about the FBI's investigation of the Clinton Foundation and Clinton's e-mail server. As the Libby affair shows, leaks about investigations are not only often wrong, but also undermine the investigations themselves. The fact that Fitzgerald never prosecuted Armitage, the actual leaker, and instead focused on Libby was itself an injustice. So was the decision of Fitzgerald's office and the State Department to let Libby twist in the wind, instead of acknowledging Armitage was the leaker all along.  

But the Democrats went along with this because it was a chance to go after higher-up officials in the Bush administration. As Senator Chuck Schumer, Democrat of New York, said after the sentencing: "Scooter Libby ended up being the fall guy." This is how the game has been played by both parties when they are out of power. From Iran-Contra to Whitewater, the investigation itself is often a tool to delegitimize one's political opposition. Is it any wonder that Donald Trump has run his campaign on Clinton's crookedness? Just making the allegation exacts a price.

But there is another abuse of power endemic to this cycle of criminalized politics. The investigators themselves wield enormous sway over our politics through the selective disclosure of information. It took until 2006 for it to come out that Armitage leaked Plame's identity to Novak, when Michael Isikoff and David Corn disclosed this fact in their book about the Bush administration. But by then the damage was already done.

In light of this pattern, it's worth savoring the following absurdity. As the superb Reuters correspondent Mark Hosenball reported last week, Comey decided to inform Congress on the eve of the election of his decision to check Anthony Weiner's computers for new e-mails in part because he feared it would leak out if he didn't.

Think about that for a minute. The FBI director worried his own investigators would mishandle highly sensitive law enforcement information about an investigation into Clinton's own mishandling of highly sensitive national security information. It's a reminder of the time when a barrage of leaks destroyed a man for a leak he never committed. Only this time Comey prevented a prosecution in court against someone already convicted in the press.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story: Eli Lake at elake1@bloomberg.net.

To contact the editor responsible for this story: Philip Gray at philipgray@bloomberg.net.