So it seems clear to me that an indictment under either of these statutes would be a gross injustice. It is a general principle of law that when the government wants to criminalize acts other than traditional common law crimes like murder or theft, it must set out with great specificity the conduct that is forbidden. To visit the rigors of criminal indictment, trial and punishment on someone who has done nothing that is specifically forbidden is unjust -- the very definition of injustice.
That leaves the question of whether Rove, Libby or someone else will be indicted for perjury, obstruction of justice or making false statements in the course of the investigation. But why should there be indictments if there was no crime?
True, Rove and Libby did seek to discredit Joseph Wilson -- as they should well have done. As the Senate Intelligence Committee concluded in a bipartisan report in July 2004, just about everything Wilson said publicly about his trip to Niger was untrue. He said that he had discredited reports that Iraq sought to buy uranium in Niger. But the CIA people to whom he reported concluded that, if anything, he substantiated such reports. He said that he pointed out that certain other intelligence reports were forged. But the forgeries did not appear until eight months after his trip. He said his wife had nothing to do with his trip to Niger. But it was she who recommended him for the trip. And on and on.
In the absence of a violation of the underlying espionage acts, any indictment here arising from the course of the investigation would be, in my view, unjust and an abuse of prosecutorial discretion.
Barone goes on to make the same point that I quoted in this post:
Rooting for Rove's indictment in this case isn't just unseemly, it's unthinking and ultimately self-destructive. Anyone who cares about civil liberties, freedom of information, or even just fair play should have been skeptical about Fitzgerald's investigation from the start. Claiming a few conservative scalps might be satisfying, but they'll come at a cost to principles liberals hold dear: the press's right to find out, the government's ability to disclose, and the public's right to know.
But when you are dealing with people in the grip of mass hysteria, common sense gets lost in the feeding frenzy.