A KAFKA PROSECUTION

Scooter Libby must feel as if he were a character in a Seinfeld episode written by Franz Kafka.

Seinfeld was the fabulously successful  1990s sitcom "about nothing."  In Kafka's novels, his protagonists are trapped in situations that are incomprehensibly complex, bizarre, or illogical.

The fate of Mr. Libby, who used to be chief of staff to Vice President Dick Cheney, is now in the hands of the jury.  He is charged by Special Prosecutor Patrick Fitzgerald with having lied about something that isn't a crime, because his memory of an event differs from that of journalists, whose memories also are faulty.

Mr. Fitzgerald was appointed to determine whether the leak to reporters that Valerie Plame Wilson worked at the CIA violated the Intelligence Identities Protection Act.
Ms. Plame is the wife of former Ambassador Joseph C. Wilson IV, who charged President Bush was lying when he said in his 2003 State of the Union address that: "the British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa."

He knew the president was lying, Mr. Wilson said, because he'd been sent by the CIA to Niger in February, 2002 at the request of Vice President Cheney, and had found no evidence of uranium sales.

When columnist Robert Novak reported on July 14, 2003, that the CIA had sent Mr. Wilson to Niger at the suggestion of his wife, who worked there, Mr. Wilson charged White House officials had "outed" her deliberately to punish him for his "truth-telling."  Democrats kicked up a fuss, and Mr. Fitzgerald was appointed to investigate Mr. Wilson's charges.

But everything Mr. Wilson said was false.  Saddam had tried to buy uranium in Africa, said the Senate Intelligence Committee, the Robb-Silberman commission on prewar intelligence, and the British Butler Commission. 

Ms. Plame did recommend her husband for the Niger mission, and did so the day before the vice president had asked his CIA briefer about reports Saddam was trying to buy uranium in Niger.

Mr. Novak's source was Deputy Secretary of State Richard Armitage, not anyone in the White House.  Mr. Fitzgerald learned this shortly after his appointment, and knew also that the Intelligence Identities Protection Act had not been violated, because Ms. Plame had been working as an analyst at CIA headquarters for more than five years prior to publication of Mr. Novak's column.

But even though Mr. Fitzgerald knew there was no underlying crime and no conspiracy, he proceeded against Mr. Libby as if there were.

Mr. Libby told the grand jury he first learned of Ms. Plame from the vice president on June 11 or 12, promptly forgot about it, but was reminded again in a telephone conversation with NBC's Washington bureau chief, Tim Russert, in which, Mr. Libby said, Russert told him "all reporters knew" that Valerie Wilson was with the CIA.

The information about Ms. Plame was so important Mr. Libby couldn't possibly have forgotten it, Mr. Fitzgerald argued, so Libby committed perjury when he said he relearned it from Mr. Russert, and was obstructing justice when he passed it on as reporter gossip to Judith Miller of the New York Times and Matt Cooper of Time magazine.

Mr. Russert testified at the trial that he'd learned of Ms. Plame from reading Mr. Novak's column, so it was "impossible" he could have discussed her with Libby.  But an advance copy of the column moved on newswires on the 11th, so Mr. Russert could have read it before he talked with Mr. Libby.

In addition, former White House Press Secretary Ari Fleischer testified he'd told NBC White House correspondent David Gregory about Ms. Plame on the morning of the 11th, and Andrea Mitchell, who covers the State Department for NBC, said in a 2003 television interview that it was "widely known" that Wilson's wife worked for the CIA.  Mr. Russert testified that if Mr. Gregory or Ms. Mitchell had known about Ms. Plame, they'd have told him.

And in a November, 2003 interview, Mr. Russert told Special Agent Jack Eckenrode that he did not remember mentioning Plame to Libby, but could not rule it out.  (Intriguingly, the prosecution has lost the notes of the FBI interview with its star witness.)

Cross examination revealed that virtually every prosecution witness has serious memory problems.  But only Mr. Libby's memory is on trial.

Since there is no evidence of a White House conspiracy to "out" Ms. Plame, and it wouldn't have been a crime if there had been, no motive has been established for Mr. Libby to lie.  His prosecution makes sense only if everything we now know to be false were true. 

Kafka would be proud of Patrick Fitzgerald.