Some time ago, I wrote a post entitled “Why I Don’t Care About Karl Rove” that provoked passionate criticism on a few other sites. I was concerned about all the excitement that the Plame investigation was causing on the left, because I thought the scandal was a distraction. The Bush administration is on its way out, and the only thing that matters now is the national debate about issues and ideologies.

The problem with the administration has always been its overt priorities and decisions, not the secret behavior of key players. If Rove is convicted of a crime, that will have little effect on the future of politics, because he and his chief client will not be on the ballot in ’06 or ’08. I doubt very much that voters will draw the conclusion that Republicans are law-breakers. They have plenty of experience with Democrats who have been convicted of more mainstream crimes. Instead, they will be reminded that politics is a hard-ball game played by crafty Washington professionals that has little to do with ideas and makes little room for citizens.

Those were the important points, but I realize that I have another qualm about the Plame investigation. If Karl Rove did identify Valerie Plame to reporters, then he shared information with the press. Our presumption should always be that such speech is protected by the First Amendment. It is precisely when we despise the speaker and his motives that we should be most careful about constitutional rights.

There is a law (“section 421”) against revealing the name of a covert CIA agent “when the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States.” I guess this law is constitutional. However, I’m not sure I like it; I’m not sure I like any law that is very little known and hardly ever enforced, especially if it prohibits the release of true information to the public. If the statute is enforced in this case, then it must apply to everyone who leaks the names of covert agents–not just political operatives like Karl Rove, but also patriots who want the press to know that the CIA is involved in bad behavior. If the Special Prosecutor ignores section 421 and instead uses a broad conspiracy or espionage charge, then we should be even more concerned about an expansion of state power and new restraints on the press.

William Kristol seems to think that Democrats are deliberately trying to criminalize conservative leaders, as shown by the ongoing investigations of Frist, DeLay, Rove and others. I don’t see how that can be true, since several of the investigations are controlled by Republican appointees or civil servants working in the Bush administration. Harry Brighouse has a simpler answer: Lots of criminal investigations are underway “because there seems to be prima facie evidence that prominent conservative Republicans were up to their eyes in criminal activities.”

My thought: People who are under investigation are innocent until proven guilty. The political consequences of any convictions would probably be bad for Bush, although they might provoke a backlash favorable to his interests. In any case, it is crucial not to focus on the short-term political consequences for any person or party, but rather on justice and the long-term consequences for law and our political culture. To be sure, failing to investigate people like Rove, Libby, Frist, and DeLay could create a culture of impunity. On the other hand, targeting politicians for prosecution can be just as damaging, if it makes public service appear dangerous, if it convinces the opposition party to rely on criminal convictions rather than arguments about policy, or if it causes us to ignore constitutional principles (as was clearly the case in the Ken Starr investigation). Rove has done “collateral damage” to American political culture, but that doesn’t excuse prosecuting him in ways that would make matters even worse.