The “bogus scandal” theory bites the dust

Glenn Reyonlds, having declared the Valerie Plame scandal “bogus” ex cathedra, would prefer not to believe that Attorney General Ashcroft’s recusal from the case means what it almost certainly does mean: that the investigation now points at someone with whom Ashcroft has such a close personal or professional relationship (e.g., Karl Rove, his former campaign consultant).

So he comes up with two utterly implausible alternative theories, both courtesy of Eric Rasmussen:

1. The investigation is going nowhere — either no crime was committed, or the persons responsible remain unidentified, or the offense was so de minimis that a good prosecutor would decline prosecution — and the function of the special prosecutor is simply to announce those findings, which will come more credibly from someone not a member of the President’s official family.

2. The investigation has turned up crimes committed by Valerie Plame herself or by her husband or by someone in the CIA.: nepotism or security violations or thinking evil thoughts about the Beloved Leader or something, and prosecution of the President’s enemies would also come more credibly from someone not so close to him. (Well, Rasmussen doesn’t actually suggest that thinking evil thoughts about the Beloved Leader is a crime, but that’s no more absurd that what he does suggest, which is that it would have been a crime for officials in the CIA to send Wilson on his mission for the purpose of embarassing the President.)

Since #2 doesn’t pass the giggle test (even if Wilson or Plame or someone at the CIA had committed some sort of offense, there would be no particular reason for the Attorney General to recuse himself from its prosecution) let me address #1.

First, it rests on a legal analysis by Rasmussen indicating that, if someone in the White House had told reporters that Valerie Plame worked for the CIA, that disclosure would not have been prosecutable. That analysis, however, misreads the Intelligence Identities Protection Act and completely ignores the Espionage Act. (More on the legal questions, with citations, here; scroll down to the update.)

Second, the theory is not logically consistent with the timing of the recusal. On the Reynolds/Rasmussen theory, since Karl Rove is not to be prosecuted, John Ashcroft shouldn’t announce that decision. But certainly, if Karl Rove was to be prosectured, his former client shouldn’t be in charge. So a recusal would have been necessary, on this theory, whether Rove was the target or not. In that case, the time to recuse would have been in late September, not now.

Note that the recusal was personal, rather than institutional. (My earlier post missed that key point.) The Justice Department, in the person of the Deputy Attorney General, is still on the case. The Deputy AG is a Presidential appointee, just like his boss. So the conflict, or appearance of conflict, leading to the recusal must be personal to John Ashcroft. And the fact of that conflict must have been something that only recently became apparent.

If what has recently become apparent is that there’s nothing worth prosecuting, then what is the newly discovered conflict of interest? And if what has recently been discovered is that Karl Rove, say, committed some trivial offense not worth prosecuting, then why shouldn’t the Deputy AG be the one to sign off on the declination memo?

Third, if the investigation were merely to be buried, the question of which investigators and prosecutors to use on the case wouldn’t arise, but Comey’s announcement clearly indicated that Fitzpatrick would have the choice of what resources to keep, or add. And there would have been no need to add more resources to the investigative team, including a fourth prosecutor, only a week ago.

Fourth, it’s apparently the case that Comey, the Deputy AG, and Fitzpatrick, the U.S. Attorney now being put in charge of the case, are friends. On the Reynolds-Rasmussen theory, Comey has deliberately set up his friend for professional embarassment by handing him something that looks like a hot case, with lots of broad hints about how hot it is, knowing the whole thing was going to be a washout.

Since the only reason to believe the Reynolds/Rasmussen theory is the assumption that the case is bogus, and since the theory turns out to contradict fact, law, and logic at multiple points, perhaps it would be well to drop the assumption, rather than maintaining the theory and therefore swallowing the contradictions.

[Karl Popper points out that the readiness to abandon ideas that don’t fit the facts is a survival trait. “We make our theories die in our stead.” (Did Popper intend the apparent allusion to the Christian docrtine of Redemption?)]

Rejecting the “bogus scandal” theory would put one in agreement with the President of the United States (with his words, that is, rather than his actions) in thinking that that unmasking Valerie Plame was both “very serious” and “a criminal act.”

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

2 thoughts on “The “bogus scandal” theory bites the dust”

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  2. Plame Analysis

    Mike Allen has an article in the WaPo today quoting Republican sources explaining why it's possilble no crime was committed when a senior Bush administration official disclosed an undercover CIA operative. For some analysis on this article and this arg…

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