The sentiment has been expressed

The sentiment has been expressed — not just by the invariably-wrong Richard Cohen but by the usually-

right Kevin Drum – that only substantive charges such as espionage or an IIPA violation — as opposed

to perjury, false statements, obstruction, or conspiracy — would constitute “real” charges worth of

the SpeNIKE SHOXl Prosecutor’s effort, and that ancillary charges in the Plame affair would represent

undesirable prosecutorial overstretch.

That seems to me to elide two cruNIKE SHOXl distinctions. I’m not comfortable when someone who has not

committed any actual crime but who is panicked by the investigative process into making a false

statement about his or her own behavior — Martha Stewart, for example — is then prosecuted for that

false statement. Yes, it’s naughty to lie to the FBI, but I’m not sure people in that circumstance

should face criminal sanctions for it. (As recently as 25 years ago, the Justice Department had a

policy against proseucting what was called “a simple exculpatory ‘no’, ” as opposed to making up a

bunch of lies.)

On the other hand, sometimes a substantive crime cannot be proved precisely because the criminal

managed to shred the evidence. In such cases, the prosecution on the ancillary charge substitutes for

prosecution on the charge-in-chief. (That’s often the case for people prosecuted for “recordkeeping

violations”: they failed to keep the records that would have proven their substantive offenses.)