More diGenova/Toensing Nonsense

Last week on TPM Cafe I picked on former prosecutor Joseph diGenova, who asserted knowledgably that the CIA gave "materially false" information to prosecutor Patrick Fitzgerald to provoke the Plame investigation, when in fact no crime had occurred. I commented there that diGenova's "only competition for the title of worst partisan hack disguised as impartial legal expert comes from within his own household."

That would be his wife, Victoria Toensing. Yesterday she reclaimed the title in a video interview with the Washington Post's Terry Neal. It took me a long time to watch it -- the video kept pausing -- so to spare you the difficulty, here are some of Toensing's points that might be of interest to you:

* The Intelligence Identities Protection Act, which Toensing claims to have written, was really meant only to go after people like rogue CIA agent Philip Agee, who disclosed agents "for purposes of having them assassinated. That's what the law is all about." Since Plame was not assasinated, evidently no crime occurred.

*Rove, in his conversation with Matt Cooper, said, "you can't use this" about the information about Plame. This is a spin that Rove's lawyer, the world's dumbest Luskin, briefly tried to use, but Toensing spends enough time talking to reporters that she doesn't seriously believe that telling a reporter something on "double super secret background" is the same as keeping it an actual secret. Reporters, after all, aren't in the secret-keeping business.

*"Rove's lawyer was told he was neither a subject nor a target" of the investigation. This is a new spin on an old canard. Yes, Luskin says his client is not a "target." Being a "target" is tantamount to being indicted. Luskin has never claimed that his client was not a subject, saying only that lots of people might be subjects of the investigation.

* "You know who's really responsible for this whole mess? The Press. It's the press that demanded an independent counsel." And independent counsels always make a big deal of things and seek indictments that aren't justified.

This is wrong on several counts, but most notably, Fitzgerald is not an "independent counsel." It is true that under the expired Independent Counsel act, IC's had no other responsibility and set their own budget; they had every incentive to do stretch out their investigations for years and then seek indictments that a normal prosecutor, allocating resources carefully, would not seek.

The quintessential example of that phenomenon is the case of David Barrett, an independent counsel who has been investigating Clinton's first secretary of Housing and Urban Development, Henry Cisneros, since 1995, and is still spending $2.5 million a year six years after securing a misdemeanor conviction against Cisneros for misleading the FBI about a non-criminal personal matter. Toensing's husband was an exception to the typical independent counsel rule: he spent three years on the public dole investigating whether the first Bush administration had illegally searched Clinton's passport file; he found that they had but didn't bother to indict anyone. Hmm.

Fitzgerald, on the other hand, is a regular prosecutor with a special assignment. He has a real job, in which he is aggressively chasing down corruption in Chicago government. He has every incentive to conclude the Plame investigation quickly and efficiently so he can get back to that work.

To his credit, Terry Neal did the best he could to force Toensing out of the spin and into a normal conversation, asking, for example, "Isn't it equally pernicious to exonerate Rove before the facts are out." But the mistake is in allowing either half of this couple to pose as an "expert."