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Smears Before and After

NewsMax didn't wait for Scooter Libby's indictment to start attacking his prosecutor, Patrick Fitzgerald, as a partisan crony.

By Terry Krepel
Posted 11/4/2005
Updated 11/5/2005

Smearing a prosecutor with a generally bulletproof reputation is no easy task, but NewsMax is doing its best to try and do just that.

Apparently feeling that its tactics of attacking Ronnie Earle, prosecutor of ex-House majority leader Tom DeLay, as a partisan were successful -- a practice that, as ConWebWatch noted, contradicts its behavior in defending Clinton-era independent counsel Kenneth Starr from similar charges of partisanship -- NewsMax decided that the same service needed to be performed on Patrick Fitzgerald, special counsel in the investigation of the leaking of the name of CIA operative Valerie Plame, believed to have been done in retaliation for her husband, former ambassador Joseph Wilson, speaking out against the Bush administration's rationale for going to war in Iraq.

NewsMax started with some pre-emptive smearing of Fitzgerald prior to the indictment that was handed down Oct. 28 against Lewis "Scooter" Libby for perjury, obstruction of justice and false statements. An Oct. 21 article said reports that Fitzgerald's charges would focus on "perjury, obstruction of justice and false statement" raise "speculation that the Leakgate case may devolve into a Martha Stewart-like prosecution, which drew howls of derision from legal critics."

Wasn't President Clinton impeached on charges of perjury and obstruction of justice? We don't recall any "howls of derision" emanating from NewsMax about that.

The article also claimed that "it's hard to see how Fitzgerald could have ever believed that the 1982 law in question had been violated, when a quick check of Ms. Plame's work history would have rendered his investigation moot from the start." But Fitzgerald was never limited to investigating possible violations of the 1982 Intelligence Identities Protection Act, as Media Matters points out.

NewsMax then moved on to accusations of cronyism and nitpicking. In the first of two Oct. 25 articles, NewsMax called Fitzgerald a "longtime crony" of James Comey, the then-deputy attorney general who appointed Fitzgerald to the special counsel post in 2003, suggesting that an article calling Fitzgerald and Comey "best friends" somehow damning, the implication being that Fitzgerald is otherwise unqualified for the job (though he is). The second article played guilt-by-association in reporting Fitzgerald's defense of Comey's prosecution of Martha Stewart, suggesting that "any indictments he brings in the Leakgate case will mirror tactics used against Stewart -- where the prosecution pursues "process" crimes after determining that the original allegations were unprovable."

NewsMax's next step was to invoke its patented Clinton-Was-Worse Defense with an Oct. 27 article claimed that "potential crimes that are far more serious - were seldom if ever prosecuted during the 1990s." The key word here is "potential"; most of the examples NewsMax cites are liberally laced with the word "alleged."

Another NewsMax Clinton-Was-Worse article on Oct. 28, before Fitzgerald handed down the grand jury indictment of Libby, claimed that Fitzgerald's work over 22 months is "small potatoes compared to the results achieved by Independent Counsel Ken Starr's Whitewater probe over the same period of time," adding: "Starr was appointed to investigate Bill and Hillary Clinton's involvement in the corrupt land deal on August 4, 1994 - and by that December, his office had already secured a guilty plea from the number two man at the Justice Department, longtime Clinton crony Webster Hubbell."

But NewsMax botched the timeline. The Whitewater investigation actually began seven months earlier, in January 1994, with the appointment of Robert Fiske as independent counsel, as NewsMax's own archive points out. Fiske was replaced in August 1994 by Starr. So take all of Starr's achievements and add seven months, and they're not quite as speedy as NewsMax makes it out to be.

And about an hour before the indictment was released, NewsMax breathlessly repeated Fox News reporter Carl Cameron's prediction that Libby "will likely avoid perjury charges in the Leakgate case," a claim NewsMax also emailed to its readers.

Post-indictment (in which Libby was charged with two counts of perjury), NewsMax went for the old standby of distorting and misreporting Fitzgerald's findings. An Oct. 31 article by Dave Eberhart claimed that Fitzgerald "found no evidence that a federal law meant to protect covert operatives was ever broken by Scooter Libby or other administration officials." In fact, Fitzgerald has not indicated that any final determination as to whether any law was broken in Plame's outing. Eberhart also repeated Fitzgerald's claim during his press conference that "We have not made any allegation that Mr. Libby knowingly, intentionally, outed a covert agent" while ignoring his statement that the reason that no allegation has been made is because Libby obstructed the investigation, or as Fitzgerald put it, "the umpire gets sand thrown in his eyes."

An Oct. 30 article went back to smearing Fitzgerald, reporting that "the targets of his investigations into political corruption have been overwhelmingly Republican," and claiming that Fitzgerald, as U.S. attorney in Chicago, indicted more than 60 people in connection with wrongdoing connected to former Illinois Republican Gov. George Ryan, compared with two indicted in a probe of Chicago Democratic Mayor Richard Daley. Or, as NewsMax put it: "For those keeping score on Mr. Fitzgerald's political targets, the count currently stands at 60-plus Republicans vs. 2 Democrats - not counting Mr. Libby."

But in an Oct. 31 article, NewsMax corrected its numbers -- though it didn't call it a correction, of course (it doesn't do corrections, even when caught red-handed in a lie). In what it termed an "update," NewsMax noted not only that Fitzgerald "has prosecuted even more people associated with former Republican Gov. George Ryan than the 60 we noted yesterday," but that "it's also true that Fitzgerald has done a better job going after Democrats than media reports we cited yesterday would indicate." NewsMax's count of indictments in the Ryan case grew from 60 to 79, but its count of Daley indictments jumped from two to 29.

Since its numbers ceased to be the slam-dunk case of bias it hoped for, NewsMax then proceeded to spin the Ryan case as merely a "mini-scandal," making a point of Ryan being "long retired," compared to the "cesspit" regarding the Daley case. Of course, NewsMax can't prove that everyone indicted in the Ryan probe is a Republican.

NewsMax gets in another smear in a Nov. 2 article claiming that Fitzgerald was accused of "prosecutorial misconduct" in an unrelated case. It's not until the second-to-last paragraph that it's noted that a three-judge panel ruled that Fitzgerald did nothing illegal.

(Update: A Nov. 4 article takes one more whack at trying to paint Fitzgerald as a partisan by playing up his comment that had witnesses testified when he issued subpoenas, he could have issued indictments in October 2004. NewsMax interpreted this to mean that Fitzgerald "wanted to spring his Leakgate October Surprise a year earlier - at the eleventh hour of the 2004 presidential campaign." But to believe that, NewsMax must abandon another beloved conservative narrative -- the liberal media bogeyman. As Media Matters points out, the chief sources who didn't immediately testify were two reporters, Judith Miller of The New York Times and Matthew Cooper of Time magazine. A liberal, anti-Bush media would, presumably, have cooperated fully and immediately with Fitzgerald's investigation in order to grease the skids for a pre-election indictment.)

That's NewsMax for you -- incomplete, jumping to unwarranted conclusions and hopelessly biased.

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