NO ONE really noticed, but Patrick Fitzgerald made an unassailable point last week about the timing of the indictment that his CIA leak investigation has produced so far.
''I would have wanted nothing better," he said, ''that when the subpoenas were issued in August of 2004, witnesses testified then, and we would have been here in October of 2004 instead of October of 2005."
Give or take a nuance and some garbled syntax, the prosecutor was in effect showing that the quixotic pursuit of a nonexistent right or privilege by some news organizations is one reason President Bush was reelected last year.
John Kerry is still easy to lampoon, as if his narrow loss were in fact a 20-point landslide. But imagine last week's astonishing developments unfolding in the fall of 2004. Imagine not only the large book of perjury that Fitzgerald threw at I. Lewis Libby, but also the still-tangled web of the infamous Official A in the grand jury's indictment and imagine President Bush trying to explain in the midst of a presidential campaign what that official is still doing on the public payroll.
Karl Rove's management of a campaign based on government-inspired fears of imminent terrorist attacks and of a cartoon portrait of Kerry as Osama bin Laden's soul brother, Rove's friends' assaults on a distinguished military record during the Vietnam War, and his allies' efforts to make the entire nation fearful that gay people who love each other might get married, not to mention Kerry's own mistakes as a candidate, might have been seen in a very different context.
Obstruction of justice is an elegant legal term for a felony that prosecutors take personally. Fitzgerald noted that the victims of this crime are not just the people who work under the protective shield of anonymity in the world of intelligence, but all of us who are injured when our system is prevented from working.
I would add that the obstruction of justice alleged in this case kept us from knowing material things about our leaders at the moment we were deciding whether to keep them in office. In more common speech, obstruction of justice is a coverup, and the coverup worked -- just as the Watergate coverup in 1972 kept facts from the public that would have guaranteed Richard Nixon's defeat.
By the summer of last year, the indictment makes clear, Fitzgerald already had Libby on the hook. He had testified twice before the grand jury, claiming that his knowledge of Valerie Plame Wilson's classified CIA position and status as former ambassador Joseph Wilson's wife had come from reporters. Fitzgerald had already taken a statement from NBC's Washington bureau chief, Tim Russert, flatly contradicting Libby's entire story. Russert had made his statement under ground rules that kept Fitzgerald from asking for anything beyond Russert's end of a phone conversation with Libby, thus protecting what Libby said to him.
That largely unnoticed fact shows Fitzgerald being sensitive to a journalist's desire to shield a source from disclosure while pressing for the information (what Russert said to Libby) that was most material. Deals between the prosecutor and reporters for The
Time magazine and its correspondent Matt Cooper, and The New York Times and its correspondent Judy Miller contested their subpoenas, which postponed the final stages of the investigation until this summer. Fitzgerald prevailed in each case -- no surprise, since the governing constitutional law is clear. Even in victory, Fitzgerald was careful to limit his questioning of reporters and examination of their notes; this was no fishing expedition but a diligent search for evidence from what amounted to witnesses to an alleged crime.
As one of the victims of this farce, Kerry has carried himself with dignity. Not enough people noticed, but he made an important speech here last week about the ongoing war in Iraq, offering a plan to gradually withdraw US troops over the next 15 months as Iraqis shoulder the burden of their own security. The timetable is responsive to a request by a third of the country's Parliament.
By contrast, President Bush was back before a handpicked audience in Virginia last week, insisting that Americans are at war in Iraq so they won't have to battle terrorists in this country.
Kerry was merely offering ideas responsibly in the public square. Can anyone seriously claim that Bush is doing that and that he could have survived the surfacing of the truth a year ago?
Thomas Oliphant's e-mail address is email@example.com.