I also know it is likely that Patrick Fitzgerald could not care less. Law isn’t generally about equitable outcomes; it’s about enforcing the rules even if the outcome appears unjust. No group of lawyers is more attuned to this truth than prosecutors, and none more zealous in enabling it than special prosecutors like Fitzgerald. Unconstrained by budgetary or time limitations, they tend to become, as we have seen in the past, perpetual prosecution machines willing to man the barricades at every mole hill and treat recalcitrant witnesses on par with Mafia thugs. As Washington lawyer Chuck Tobin astutely noted in my piece, courts and prosecutors tend to see the administration of justice as an objective that trumps all other concerns. In that process, they view any act of defiance as defiance of the system of justice as a whole that must be crushed regardless of the underlying importance of the information sought.
I have little doubt that when the history of the Plame investigation is finally written, what Judith Miller knew and when she knew it will turn out to be of, at most, secondary importance. Despite that, if Fitzgerald had his way, she’d face criminal prosecution and perhaps rot in jail indefinitely. In a nasty but little-observed footnote in his brief, Fitzgerald argued that Miller’s confinement, now set to end when the grand jury expires at the end of October, could be “continued or reimposed” if she refuses to give information to “successor” grand juries.
Inspector Javert couldn’t have put it any better.
Fitzgerald is being a hard-ass to exert maximum pressure on Miller, and the prosecutor clearly believes time in jail will lead Miller to reconsider her stand. I wouldn’t count on that. Miller seems more than ready to go the full boat, if necessary, to make her point. Miller’s critics have often portrayed her as trying to place herself “above the law.” But before being led away to jail earlier this week, she plainly acknowledged that was not her view. Miller understands the law is against her, but through principled defiance, she hopes that will change in time.
It probably won’t, but disobeying the law in order to alter it is central to American history. “Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator?” Thoreau wrote in Civil Disobedience, “It is not desirable to cultivate a respect for the law, so much as for the right.”
It is dangerous to be right when the government is wrong. — Voltaire