In a prior diary, I argued that it was a distraction to focus too much on the question of whether Valerie Plame was a "covert" agent of the CIA for purposes of the statute which Victoria Toensing keeps citing whenever she appears on television.
However, that is not the limit of the misleading arguments she makes.
She also argues that Scooter Libby should not have been charged with perjury and obstruction because no one has been charged with an underlying crime here.
Now, there is a false impression a person can come away with when Victoria Toensing points out repeatedly that no one has been charged with an underlying crime, and it is this:
Patrick Fitzgerald already has all of the evidence he needs to figure out whether someone should be charged and decided not to do so.
However, anyone who thinks that would be wrong. But, by only telling a part of the story here, Victoria Toensing allows that false impression to remain out there. And in my opinion that is exactly what she wants to happen.
Patrick Fitzgerald used a baseball analogy when he was explaining what Scooter Libby did wrong. I didn't think that got the point across well enough, so I'm going to try a different one.
Investigations like the one Fitzgerald is conducting require the prosecutors and the grand jury to evaluate evidence.
They can't determine whether to charge anyone with a crime until they have that evidence. And at the beginning of the investigation, the prosecutors don't have it.
So, think of the investigation as a room with a number of locked doors in it. The investigators call witnesses, who give them the keys to unlock the doors.
Once the prosecutor has a key to a particular door, he opens the door and looks. Sometimes there's evidence inside and sometimes there isn't.
Once all of the doors are unlocked and the prosecutors have taken out all of the evidence, they can determine whether someone should be charged with a crime.
In the Plame case, Patrick Fitzgerald has not opened all of the doors. In fact, he still doesn't even know how many doors there are to open. Why?
Because Scooter Libby has a key to at least one of those doors and he won't give it up. Instead, he chose to lie rather than answer the questions put to him truthfully or to assert his fifth amendment rights.
It is all well and good that a jury found Scooter Libby guilty of lying and obstructing an investigation. But Scooter Libby still hasn't told the truth.
And because Libby still hasn't told the truth, Fitzgerald cannot bring the investigation forward. He cannot unlock any more doors, even though he knows that there is at least one more door to open. That is why Fitzgerald characterizes the investigation as "inactive" and not "closed."
What will happen if Libby now decides to tell the truth? Does that mean that the evidence he gives will lead to someone's indictment?
Maybe. Maybe not. Fitzgerald cannot say where the investigation will go if Libby co-operates. I cannot say where it will go. And certainly, Victoria Toensing cannot say.
One possibility, however, is that Scooter Libby, if he told the truth, would give Patrick Fitzgerald enough information to unlock a door to evidence which will allow him to charge someone with a crime. Scooter Libby's refusal to tell the truth prevents us from ever pursuing that possibility.
Now, Victoria Toensing, as a former U.S. Attorney herself, surely knows all of this. Surely she knows how misleading it is to say that no one has been charged with an underlying crime here unless you also point out that Scooter Libby, by lying and obstructing, is preventing the prosecutor from finding out if an underlying crime should be charged.
Now, before anyone thinks that this is a "slam dunk" case and someone ought to be charged with a crime and that it is all so obvious, think again. If everything were so clear, I don't think Fitzgerald would be so cautious in his comments.
The reason people like Victoria Toensing have an opening to make the kind of dishonest arguments they do is because the outcome is truly unknown in this case.
Patrick Fitzgerald cannot say "If only Libby told the truth, I could charge someone with a crime." If he was able to say that, I am sure that he would.
The problem is that the most Fitzgerald can say is that if Libby tells the truth, the investigation can continue. Maybe that will lead somewhere and maybe it won't. But at least Scooter Libby won't be determining when and why the investigation ends. The U.S. Attorney who is in charge of the investigation will, which is the way it ought to be.
So, Victoria Toensing can go on all of the talk shows she wants and make her incomplete and therefore dishonest argument. But she shouldn't be taken as an objective reporter on this case because she obviously is not.