Politicizing Crime: The WSJ and the Politics of Libby

First, let's flashback to October of 2005. A brash young intrepid journalist named Robert Novak penned an op-ed called Criminalizing Politics.

In today's polarized climate, both parties have contributed to the criminalization of politics. But Democrats, losers in both elections and the world of ideas, have turned to using the criminal process over the last two decades. That means depicting DeLay not as a mere reactionary politician but the cause of national corruption. This resolve was furthered by the reckless DA in Texas and a retreat by House Republicans.

And now today in the WSJ:

The word "guilty" had barely crossed the airwaves yesterday in the perjury case of Scooter Libby before critics were calling it proof that President Bush "lied us into war" and demanding that Dick Cheney be strung up next. Maybe now Mr. Bush will realize that this case was always a political fight over Iraq and do the right thing by pardoning Mr. Libby.

The conviction is certainly a travesty of justice, though that is not the jury's fault. The 11 men and women were faced with confusing evidence of conflicting memories in a case that never should have been brought. In the end, they were persuaded more by prosecutor Patrick Fitzgerald's story line that Mr. Libby, a former aide to Mr. Cheney, had lied to a grand jury about what he knew when about the status of CIA official Valerie Plame, the wife of Bush critic Joseph Wilson.

In hindsight, the defense seems to have blundered by portraying Mr. Libby as the "fall guy" for others in the White House. That didn't do enough to rebut Mr. Fitzgerald's theory of the case, and so the jury seems to have decided that Mr. Libby must have been lying to protect something. The defense might have been better off taking on Mr. Fitzgerald for criminalizing political differences.

DeLay and Libby broke the law. They were charged within the law. And now one has been convicted by the legal system. So what could these conservative commentators mean by "criminalizing politics"?

It's quite true that DeLay and Libby's crimes were done for political gain. So clearly these were political acts. But they were also criminal acts. Libby wasn't prosecuted for his politics, but for obstructing justice. DeLay wasn't indicted for his politics, but for violating Texas election law. It's tempting to cynically dismiss these conservative arguments about 'criminalizing politics' as empty rhetoric - offering an empty offense as a futile defense. But I think the only sense that can be made of this is the assumption by some conservatives that anything done in the name of politics is okay, allowed, protected, because it is political in nature.

Novak, in his op-ed, made something of a play towards acknowledging this. " DeLay, praised and condemned as the epitome of hardness in politics..." Novak is bringing DeLay's criminal activity into the political by characterizing it as "hardness in politics". Novak is assuming a tacit acceptance of all activity of any nature as political hardball so long as its for political gain.

The WSJ goes at from another angle, assessing the political motives of the prosecution of Libby from the political conclusions that others have made about it. But in both cases the underlying idea remains: the political nature of the crimes erases the criminal nature of the politics, or at least renders it unimportant.

This matters because it's a fundamental assault on the rule of law. If we cannot prosecute crimes when they have political implications, what we've done is render the law subservient to the politicians that use it. What we've done is politicize crime.

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