Wait a Sec -- What Is a Bush Administration Official Supposed To Do?

I. Lewis Libby is being indicted for lying to the government -- a substantial offense, if he's indeed guilty. But Jeralyn Merritt of TalkLeft complains at the Huffington Post that Karl Rove might avoid serious punishment because he told the truth to the government. Merritt outlines a scenario (which as best I can tell has to be strictly theoretical at this point) in which Rove would "make a plea deal with Fitzgerald under which he agrees to plead guilty if Fitzgerald agrees to request a sentencing reduction to probation, because of his cooperation against others." She then concludes:

As a devout critic of the Bush Administration, I bring it up because I don't like rats. If Karl Rove isn't indicted, or gets a sweetheart deal, I can't conceive of any reason why other than he sang his heart out.

So what's a Bush Administration official supposed to do? I would have thought that telling the truth to investigators about criminal misconduct, including your colleagues' misconduct, is generally part of a government official's job. It's also sometimes the self-interested thing to do, but while that might mean you deserve less credit for it, it doesn't mean you should be condemned for it.

Merritt's view, though, seems to be that Rove would be a "rat," whom she "do[es]n't like," for "s[i]ng[ing] his heart out." Should he compound his initial offense (if he had committed an offense) by failing to do his duty? I've heard people condemn the Bush Administration for placing too much premium on loyalty over other virtues -- but surely few (on the Left or on the Right) would think that Administration officials should place such a premium on loyalty that they refuse to testify about others' criminal conduct? Or is it damned if you do (covering up your colleagues' crimes; shameful!), damned if you don't ("singing" about your colleagues' crimes; shameful!)?

I'm not trying to defend Libby, Rove, or anyone else here against allegations that they committed a crime -- I have't been following the details closely enough to have much to add about that. But I do want to speak out against this facile condemnation of people who actually do what the legal system rightly wants them to do, which is to reveal information that they have about crimes that the legal system is investigating. Loyalty is a virtue in some contexts; but not in this context.

Thanks to Mark Moore, who takes a similar view, for the pointer.

I always thought it was particularly juvenile for adults to complain about "rats" and "tattletales." That's grade-school stuff.

If some White House flunky had spilled the beans and the entire Administration got indicted, they'd be a hero to the Left. But if Karl Rove told the truth (an unlikely scenario, mind you, given the WH's public statements), he's a rat?
10.28.2005 3:53pm
Bob (mail):

It is not the truth telling part that Merrit dislikes. It is the part where Rove would refuse to tell the truth unless given a deal.
10.28.2005 4:08pm
DRJ (mail):
I think the preferred liberal approach is to sing your heart out in a manner that doesn't rat out you or anyone in your clan. For example, require the prosecutor to define "is" and then repeat ad infinitem.
10.28.2005 4:12pm
Eugene Volokh (www):
Bob: But that's not what "rat" means -- rat means someone who tells on his friends, not someone who refuses to tell on his friends unless given a deal.
10.28.2005 4:16pm
Hei Lun Chan (mail) (www):
Isn't she a defense attorney? Isn't it her job to advise her clients to refuse to tell the truth unless given a deal?
10.28.2005 4:19pm
Noah Snyder (mail):
There is always, how to put this, not committing crimes in the first place?
10.28.2005 4:21pm
TJ (mail):
Merrit's position is stupid. Her dislike for Turd Blossom (as Mr. Rove is apparently called by President Bush) is getting in the way of her good sense.
10.28.2005 4:21pm
Shelby (mail):
Or is it damned if you do ... damned if you don't ...?

Considering the source, I think this pretty much answers itself.
10.28.2005 4:24pm
Crime & Federalism (mail) (www):
Should he compound his initial offense (if he had committed an offense) by failing to do his duty?

The issue isn't whether Rove is "failing to do his duty." The issue is whether he is ratting out others to protect himself. Rove would do his duty, as a public servant, by telling the truth without regard to his own interest. He isn't doing his duty by making a deal. Indeed, by conditioning his cooperation upon receipt of a favorable deal, he failed to do his duty. After all, telling the truth is a requirement of public service, but here, Rove might have sought private gain before telling the truth. That's a major moral failure, and I'm disappointed you failed to see that.
10.28.2005 4:29pm
I think she is suggesting that Rove fibbed initially, but then turned on Libby. She doesn't want Rove to be forgiven for the first fib just because he "sang" later.

I don't think this is a damned-if-you-do-damned-if-you-don't argument.
10.28.2005 4:30pm
Teresa (mail) (www):
Since everything I've ever read about Karl Rove in the MSM and the liberal left has always been severely critical - I think you are quite correct. It doesn't matter what Rove does or doesn't do - he is ALWAYS wrong. Even if the argument put forth makes no sense at all... he's still wrong. The man could come up with a cure for cancer and he'd be in the wrong for not curing heart disease. Strange world.
10.28.2005 4:32pm
Bob Bobstein (mail):
Prof. Volokh-- That someone at the Huffington Post may have said something silly about this whole matter is not too surprising. I hope that later we get to hear your thoughts about the matter at hand: the indictment and continuing investigation.
10.28.2005 4:35pm
The headline for the post is a question: "What is a Bush Administration Official Supposed to Do?".

For most of the left, the answer to this question is that Rove should announce that he has known all along that we need to raise taxes, shut down the Pentagon, nationalize most industries, and create a better welfare state than Sweden, but that he has refused to say so publicly because Enron was secretly paying him to work for the Republicans. Once he admits all this and starts driving a Prius the left will happily embrace him.
10.28.2005 4:40pm
keatssycamore (mail) (www):
Well, in fairness to Karl Rove, it only took him four visits to the grand jury to roll over on Scooter. Damned if you don't the first time, damned if you don't the second time, damned if you don't the third time, damned if you DO the fourth time.

Strange world for sure Teresa.
10.28.2005 4:40pm
Justin (mail):
Merritt's surely guilty of using the wrong word, and nothing else. After all, I'm sure Merritt would have no problem with Rove singing like a canary if it meant he, too, would go to jail. So while I understand why EV thought it neccesary to make this point, I think he's arguing against a straw man. As Bob noted, its the getting out of jail free card that Merritt doesn't like.
10.28.2005 4:45pm
Mark Buehner (mail) (www):
Look, the left and the MSM are going to be furious that Rove wasnt kind enough to incriminate himself. That what this comes down to. Do Merritt's words seem to indicate he would have been happier if Rove pergered himself? Seemingly yes. Obviously. Because then Rove would be indicted and all his deams come true. How dare the man ruin a perfectly good news cycle acidic to George Bush?
10.28.2005 4:46pm
LizardBreath (mail):
The 'don't be a rat' imperative is an esthetic rather than a moral one (that is, if you want to reject it as silly romanticism, I'm not going to argue with you) but it isn't quite the 'damned if you do, damned if you don't' situation you paint it as.

What makes Rove a rat is not that he spoke truthfully to the investigators, if he did -- no one would carp at the behavior of someone who had been honest and aboveboard from start to finish -- but that he was intimately involved in the initial wrongdoing, and then turned his partners in crime in to the authorities to protect himself. Someone who neither does wrong himself nor protects others who do is an honorable man. Someone who does wrong, but keeps faith with his fellow wrongdoers, has at least what honor is possible among thieves. Someone who (as Rove appears to have) does wrong and then cravenly turns on his friends is a rat -- it is better for the enforcement of law that he should be a rat, but that doesn't make associating with him an attractive proposition.
10.28.2005 4:52pm
Not to disrespect, but:
Interesting choice of aspects of the case to comment on.

Are you praising Rove for eschewing loyalty for the sake of principle, hypothetically?

The opinion you quote, I'd say is a rare outlier. The much bigger complaint of the Bush administration is that it puts loyalty before anything else. I've been pleased to see this issue come to the forefront recently, after having been ignored for so long.

If your hypothetical praise is an indirect criticism of the administration's usual behavior, then I guess I agree with you...
10.28.2005 4:54pm
Crime and Federalism: It's not a "major moral failure." It's what a person does in our system of justice. The idea that Rove should be the target of a prosecutor, but refuse to protect himself legally, is absurd. Would /anyone/ possessed of a modicum of sanity agree to serve in the Federal Government under the "moral" rules that you suggest? One doesn't suspend one's right to a vigorous defense against prosecution when one joins the Federal workforce. Should Rove, then, refuse to hire a lawyer?

I suppose Rove should feel morally compelled to tell all, damn the consequences, under very different circumstances--if, say, lives hanged in the balance. But today's filing /is not/ an indictment of the decision to go to war in Iraq, however much we shall be hearing the opposite from Reid, Kennedy, and Dean. The only thing hanging in the balance now is Fitzgerald's case. No one is under an obligation--moral or legal--to incriminate himself in these circumstances.
10.28.2005 4:57pm
Anand H (mail):
Eugene: Bob: But that's not what "rat" means -- rat means someone who tells on his friends, not someone who refuses to tell on his friends unless given a deal.
There's usually an at least implicit assumption that the "rat" sold out his friends for personal gain (or to avoid personal consequences). Some dictionaries make this clear, some don't. The honorable thing to do is to confess to one's own misdeeds, and to take punishment for them, without mentioning the misdeeds of others (possibly even taking responsibility for their crimes). I personally don't think honor is all it's cracked up to be, but at least it isn't inconsistent in the way you think it is.
10.28.2005 4:58pm
jallgor (mail):
I disagree with Eugene's definition of rat. "rat means someone who tells on his friends, not someone who refuses to tell on his friends unless given a deal."
We call people who come forward of their own volition to talk about wrongdoing "whistleblowers" and we usually respect them. We call people who are forced to tell the truth by threat of prosecution (such as Sammy the Bull Gravano) "rats." We don't respect the rats, we just thank god that someone got their nuts in a vice long enough to get some truth out of them. That being said I have no opinion on whether Rove is a rat or not.
10.28.2005 4:59pm
Daniel Chapman (mail):
So Rove was investigated by a Grand Jury, and they refused to indict. At this point, is it proper to be assuming that he "sang" in the first place? Shouldn't he be entitled to an assumption of innocence?

Or is there some evidence of a "deal" that I'm not aware of?
10.28.2005 5:07pm
Al Maviva (mail):
I wonder if Ms. Merrit counsels her clients to avoid being rats. After all, plea deals, confessions and cooperating with police generally involves being a rat.
10.28.2005 5:10pm
Bill (mail):
"Rat" is a term of abuse for someone who tells on someone else. The person told on does not have to be (but can be) a "friend of" he rat. The person told on does have to have some common interest (perhaps an interest in continuing mutual trust) with the rat that had led the "rat-ee" to believe that he would not be told on.

Ratting happens when the rat tells to further some goal that the ratted-on did not want to further, at least not enough to rat out himself. Often this goal has to do with protecting the rat. But that is not essential, I don't think. Not does the rat have to be acting in his self-interest. The rat can be acting to further any goal that is incompatible with and more important to him than protecting the person ratted on.
10.28.2005 5:10pm
keatssycamore (mail) (www):

We don't know that they refused to indict. Fitzgerald may have just said, "I can't indict because I don't have enough," or (and given Rove's FOUR appearances before the GJ I think it's more likely) there may be a deal for Rove's testimony against Libby.

It's hard for me to believe that if Fitzgerald could indict Libby on something as small as 'false statements,' (no opinion expressed on the more serious charges) that he couldn't have done the same to Rove had he desired it.

So why didn't he? I don't think we know yet. And given that there'll be a plea, we probably won't know for certain.
10.28.2005 5:13pm
Bill (mail):
I meant, "nor does the rat have to be acting in his own self-interest."
10.28.2005 5:13pm
Daniel Chapman (mail):
Exactly. We don't know, we'll never know, so why are we assuming the worst?

A Grand Jury almost always indicts if the prosecutor thinks there's enough evidence to prosecute. The fact that they didn't means that either he didn't think he could prosecute, or for some other reason (a deal?) he chooses not to. Either way, secrecy is supposed to PROTECT the subject of an investigation if no indictment is returned.
10.28.2005 5:17pm
Crime & Federalism (mail) (www):
A public servant, by telling the truth, even at cost to himself, performs a public service. When a public service withholds information crucial to an issue of national security (and unmasking a CIA agent, I hope we can agree, is an issue dealing with national security), he has failed to perform his public duty. He has breach the public's trust.

Now, I don't know if Rove "sang" or "ratted" anyone out. But if he had information crucial to determining who committed a crime against national security, and he withheld this information until obtaining a personal benefit, then he is a moral failure.

Yes, it's what a our legal system allows. But just because it's legal doesn't make it moral.
10.28.2005 5:22pm
keatssycamore (mail) (www):

I guess just because curious minds like to know.

"Exactly." What exactly is that?

I was just pointing out that we for sure don't know that "the Grand Jury refused" to indict Rove. That seems to me to be the most unlikely of scenarios. I don't think Fitzgerald said, "Indict this ham sandwich," and the GJ said, "No thanks." I think this is why we are all curious. Seems only natural.
10.28.2005 5:30pm
Nikki (www):
If Rove did something for which he would have been indicted (and thus forced to resign), and made a plea bargain to avoid indictment and forced resignation ... that I think would be shady.

Of course, I have no evidence that that is the case.
10.28.2005 5:33pm
Houston Lawyer:
I'm still waiting for the evidence that Rove did anything wrong. As far as I can tell, the only thing he is guilty of is getting Bush elected for a second term.
10.28.2005 5:39pm
Cruel and Unusual:
Maybe I'm missing something, but as some have suggested above, it doesn't seem that complicated. Either Rove committed perjury or he did not. If he did not, then any testimony he gave that leads to Libby's arrest is indeed just the fulfillment of his civic duty (though it might beg the question why it's taken so long for him to come forward with such information.)

If Rove did commit perjury, and either escapes prosecution or receives a downward departure, it will presumably be because he cut a deal to, yes, rat out Libby. It is his prerogative to do so, but he deserves no moral credit for covering his own backside at the expense of his colleague. Of course Rove has no obligation to incriminate himself in front of the grand jury. But this does not mean he can properly lie to them either. That's what taking the Fifth is all about, eh?

I just don't see the "damned if you do, damned if you don't" element to this scenario except "damned if you lie the first time in front of a grand jury then tell the truth the second (third, and fourth) times around in order to save yourself." And that doesn't bother me.
10.28.2005 5:40pm
keatssycamore (mail) (www):
Houston Lawyer,

My guess is "Official A" is Rove and that he had to go before the GJ four times in order to correct misstatements he made to the GJ the first time (and maybe the second and third) and then on the fourth, he dropped dimes on Libby for a deal. Hence he is called "Official A" in the indictment.

But I don't think we are ever going to know what Rove did wrong, or for that matter, what he didn't do wrong.
10.28.2005 5:55pm
gab (mail):
To criticize someone's commentary on a day when the VP and President's assistant is indicted is funny as hell. Not focusing on the big picture is indicative of the bias of Dr. Volokh.
10.28.2005 5:57pm
You cannot "unmask" someone who was in no real sense "masked." So far, Fitzgerald has not indicted on the basis of revealing the name of . . . oops. Now *I* almost unmasked her.

Perjury and obstruction are illegal. Libby will now have his day in court. On these charges. But not on charges related to damaging the ability of the US to conduct intelligence gathering, and, by extension, damaging national security. Or, if we do, shouldn't we be calling for Fitzgerald to be fired for incompetence?
10.28.2005 6:06pm
Master Shake:
Eugene - it's pretty clear that Merritt is using the term "rat" in the (what I believe to be commonly-understood) sense of someone who finds themself in a jam and realize they can get out of that jam by ratting somebody out. Merritt is clearly not saying that if Rove were asked a straightforward question and gave a straighforward answer with no risk to himself that he would be a "rat". I think this point is a non-issue.
10.28.2005 6:16pm
Scipio (mail) (www):
Is the White House a vessel for seagoing snitches?

10.28.2005 6:37pm
Mark Buehner (mail) (www):
Ok, upon further review things are becoming a bit clearer. Libby seems to have thrown caution to the wind and compounded his small lies with brazen lies. He claims to have learned of Plame from reporters (Russert, who denies it) when apparently many WH officials testified to having conversations about Plame with Scooter (Rove among them apparently). So is Rove really a rat for distancing himself from a self-conflagrating Libby? Recall that there is still no evidence that Rove broke any laws to begin with. The thread of this conversation seems to assume he did but skated.
10.28.2005 6:39pm
B. B.:
I don't think anything Rove could have done would make him any more of a 'moral failure' than he already was. It's why he's so damn good at what he does -- politics is a dirty game, and having, with apologies to Ric Flair, "the dirtiest player in the game" has been a boon to the GOP, which would be why the left hates him so.

I mean really, is it surprising that a guy who plots the campaign against McCain in SC spreading the rumor that he has an illegitimate black child would later rat out (assuming that's the case) others for personal gain?
10.28.2005 6:51pm
alkali (mail) (www):
Merritt aside, I don't believe there's any general liberal or conservative position on "rats."

Apropos of this subject, it is always remarkable to me that the NY Post, which has a very law-and-order editorial line, frequently uses the loaded terms "rat," "snitch," "sing," "canary," etc., in headlines. That may be one of the compromises a tabloid-format paper has to make.
10.28.2005 6:55pm
Thorley Winston (mail) (www):
Merritt's supposed to appear on the Hugh Hewitt show in a few minutes. You can listen live here.
10.28.2005 7:41pm
_Jon (mail) (www):
This doesn't address the "rat" comment, but I feel obligated to point out that "indicted" is not the same as "convicted".

Ask DeLay.
10.28.2005 8:38pm
AST (mail):
If it were I, I'd probably get indicted because I couldn't remember what I'd seen or not seen. I'm always finding things I wrote and don't remember writing. And my wife is always telling me things she told me but I didn't hear.

If I had a position like Libby's, I'd just make sure I never spoke to reporters about anything. But to be absolutely safe in Washington, you'd have to quit communicating to anybody, so how could you do your job?

This whole story seems like much ado over nothing. There's much to be said for prosecutorial restraint as well as judicial. If anybody had actually been harmed, I'd feel differently, but the whole Niger yellowcake story and the "Bush lied" claim based on it have never been more than left wing desperation. It offends me that anybody treats this so seriously.

Maybe the best conclusion is, if anybody asks you to take a job for the government, don't walk, run. Who needs the grief?
10.28.2005 8:55pm
dk35 (mail):
Once again, Volokh takes a sentence out of context, construes it in a light most damning to his subject, and makes moral judgments. And this on a subject that he admits in his own post he doesn't have many details. Sounds a bit like an "ad hominem" to me. Well, if that isn't "facile" I don't know what is.
10.28.2005 9:31pm
tom scott (mail):
As a retired correctional officer it is interesting to read this thread. Rather than "rat" or "tattle tale" I am more used to the term "snitch."
Someone who does wrong, but keeps faith with his fellow wrongdoers, has at least what honor is possible among thieves. Someone who (as Rove appears to have) does wrong and then cravenly turns on his friends is a rat --
LizardBreath, have you ever done time? You sound like you have the convict code of honor down pat.
10.28.2005 9:47pm
Elliot123 (mail):
Does anyone find it odd that a woman drives through the gates of the CIA everyday and the CIA thinks it's a big secret?
10.28.2005 11:13pm
The Drill SGT:
The LLL believe that Rove is a Evil genius. Well maybe he is smart enough to have read a bit of political history and knows that it's seldom the crime but rather the coverup than brings down politicos

It's always the coverup that will get you. That's why the FBI always talks to you in pairs. One asks questions, both take notes, and if you aren't completely honest, FBI2 is a witness to your false statement charge, made by FBI1.

Note the 2 "Making false statements" charges. The first time the FBI talks with you they ask question, once you answer, they take notes, very carefully. You are then locked in to a story. Once that happened things go down hill, with more lies compounded in later FBI interviews and the Grand Jury.

I think that Rove was smart enough to tell the truth as best he remembered it each time he met with the investigators or the GJ. He did the right thing and the Bush political machine also deserves credit for not trying to destroy the Special Prosecutor, as the Clinton WH did.
10.28.2005 11:19pm
tefta (mail):
Be patient everybody. In no time, there'll be a dozen or so books revealing all and Fitzgerald will play himself on a made-for-TV movie. After that screen offers will pour in and he'll be the next James Bond.

Prediction: Rove will also resign if he doesn't get assurances that he isn't the target of the "ongoing" investigation Fitzgerald revealed at his press conference. Otherwise, the White House will be hamstrung with reporters fixated on Rove and rumors will keep flying around.

Rove, Libby and Miers should start up their own law firm specializing in helping those unfortunates who get in the media cross hairs.
10.29.2005 10:38am
Sylvain Galineau (mail):
Merrit's position is first and foremost based on a presumption of guilt. Anything which appears to 'save' Rove from punishment would therefore be bad.
10.29.2005 10:39am
Frank Drackmann (mail):
I thought it was the late Strom Thurmond who had fathered a black child.
10.29.2005 11:31am
syn4me (mail):
Dear Frank D
Love your comment. Can't stop laughing.

Dear Elliot123
And, in a convertible with the top down!
10.29.2005 1:12pm
For those of you who don't read Jeralyn Merritt, she's criminal defendants first, Democrats second. Exhibit A is that she's refusing to say anything bad about Tom DeLay. The principle she's defending here is one she'd defend no matter who was involved: she doesn't like to see guilty defendants given sweet plea deals to testify against their no-guiltier colleagues (ie rats). And yes, that includes her own clients (though she might be forced to do it occasionally out of her ethical obligations to represent their best interests.)
10.29.2005 2:08pm
Bruce Crawford (mail):
Prof. Volokh,

Apparently Jeralyn Merritt believes only political crimes exist. I've seen her on TV many times and one gets the impression there is no crime because there are no criminals. No matter how heinous the crime nor how damning the evidence, according to her the perp just isn't guilty. But she seems convinced Karl Rove has committed a crime and is "ratting out" others to keep himself from suffering Joseph Wilson's "frog-march."
10.29.2005 2:30pm
Eric Scharf (mail) (www):
What is a Bush Administration official supposed to do?

Resign. Every last one.

Ask me a hard one....
10.30.2005 1:14am
Bottomfish (mail):
In connection with "ratting", note that many people, Nicholas Kristof and Novak among others, have said that Plame's identity was not that much of a secret. In a formal bureaucratic sense her status seems to have been a secret, but apparently a lot of people knew about it. Quite possibly Libby and his associates were aware of this. Or they may have had shifting ideas about her status. Possibly the CIA may be reflectively acting on her behalf in asserting her covert status, as all organizations have built-in defensive tendencies. For Libby's purposes at trial, that may not be much help. If the agency says she is secret, for the court she IS secret, period. But Libby might argue that he was genuinely confused about her status, which would shift blame onto his associates for not keeping him clearly informed.
10.30.2005 4:53am