Saturday, June 09, 2007

Scooter Libby: A Funny Thing Happened on His Way to Jail

Last week Judge Reggie Walton sentenced Scooter Libby to 30 months in the federal penitentiary for allegedly lying about a crime that never occurred and didn't exist. While everything about the case qualifies as script material for The Twilight Zone, acknowledging plot contributions from both Kafka and Heller, the newer developments owe more to One Flew Over The Cuckoo's Nest.

No Crime

During the trial Judge Walton ruled that Valerie Plame Wilson's role at the CIA would not be an issue. Good thing for the prosecution, as there is no evidence anywhere, even today, that Ms. Wilson was a "covered person" under the law that Special Prosecutor Fitzgerald was tasked with enforcing. In fact, the CIA itself had confirmed Ms. Wilson's employment to the reporter writing the original news story and the Agency today—almost four years later—remains unable to describe Ms. Wilson as an employee covered under IIPA. Not only did Judge Walton's ruling deprive the defense team of the argument that no crime was committed, it also deprived them of the strongest possible defense: No matter whose memories were more accurate two years after the fact, Libby's or the reporters, no matter who was more credible, the outcome would be exactly the same: There was no crime. If Libby had parroted the reporters' stories—remember there were only minuscule differences between his version and theirs—it would not have changed this most basic fact. It would not have created a crime where one did not exist. Nothing that Libby remembered or didn't remember about those conversations, no matter how farfetched, would have created a crime where none existed.

Most readers relate perjury to guilt, believing that guilty parties might lie under oath to prevent themselves being found to have engaged in a crime. We accept that we need prosecutions for perjury in order to minimize that bad behavior. It is a foreign and intrinsically uncomfortable leap for most of us to accuse a person of lying when there is no crime to defend or hide; when the lie alleged cannot be a lie to protect the guilty from prosecution, or to prevent the discovery of a crime. It's almost like one of those geometric shapes that can't exist. We think we've been shown something, but it's vaporous and disappears as we study it.

In this case, there was no crime. There could be no coverup of a crime. There was no perjury in support of a coverup that didn't exist of a crime that not only did Scooter Libby not commit, but more importantly and entirely glossed over by media, no one committed.

Libby could have testified that Dick Cheney himself personally ordered that he tell every reporter in Washington the name and role of Joe Wilson's wife. Still, no crime.

Smoker: "I quit smoking the day before the forest fire."
Witness #1: "He always smelled like a smoker in the years I knew him."
Witness #2: "He smoked heavily."
Witness #3: "I saw him with a cigarette the morning of the fire."
Verdict: The smoker is guilty of perjury, with no more evidence than he said/he said; even though it was known that the forest fire was caused by a lightning strike; that it was an act of God and therefore neither malicious nor negligent; and, that the smoker had absolutely nothing to do with starting the fire in the first place.
Libby Didn't Do It, Armitage Did

Almost literally from day one, Special Prosecutor Fitzgerald knew who "leaked" Ms. Wilson's name to columnist Robert Novak as the person who recommended her husband for the trip to Niger and who was a CIA employee. It was Richard Armitage, Deputy Secretary of State to Colin Powell, who outed Ms. Plame in an off the record conversation with Novak. Interestingly, the official State Department website describes Armitage as "the principal deputy, adviser, and alter ego to the Secretary of State." Armitage was, as they say, "widely known" around Washington as an inveterate gossip who was unable to keep his mouth shut and as no particular friend of Libby or his boss. Rather than declare "case solved and closed" with the knowledge of the leaker, roll up his office and call it a day, Fitzgerald continued to troll, seeking a worthy target to substitute.

Critical Witness Excluded

Judge Walton denied the defense the ability to call a critical witness, Andrea Mitchell, the well-connected Washington reporter who observed that it was "widely known" that Joe Wilson's wife worked for the CIA. According to Ms. Mitchell, in a 2003 interview with Alan Murray on CNBC:
Murray: Do we have any idea how widely known it was in Washington that Joe Wilson's wife worked for the CIA?

Mitchell: It was widely known among those of us who cover the intelligence community and who were actively engaged in trying to track down who among the foreign service community was the envoy to Niger. So a number of us began to pick up on that. But frankly I wasn't aware of her actual role at the CIA and the fact that she had a covert role involving weapons of mass destruction, not until Bob Novak wrote it.
Defense Experts Barred From Testifying

Finally, in a case entirely dependent on memories of three conversations two years prior, where the difference between participants was each less than a sentence, Judge Walton refused to allow the defense to put on the stand even one expert witness to testify as to the known frailty and fallibility of human memory.

Four Balls and He's Convicted

Would the verdict have been different if the jurors had known what was "widely known" everywhere but inside Judge Walton's courtroom:
  1. Ms. Plame was not a covered employee under IIPA. Sharing her name and knowledge of her position with the CIA was not a crime, no matter who did it.
  2. Ms. Plame's employment with the CIA was "widely known" in Washington circles.
  3. Richard Armitage first "leaked" the information to Robert Novak. There are no plans to prosecute Mr. Armitage because, again, no crime was committed.
  4. It is completely normal for two parties to a conversation to have different memories of who said what, and the disparities grow with the passage of time. This is true whether speaking of Scooter Libby or Tim Russert.
It's impossible to know, of course, whether "the rest of the story" would have had any influence on the jury's decision a couple of weeks ago. Nor can we know the reasons the Judge decided that the sentence he would impose in this case should be twice the recommendation of the corrections officers assigned to the case.

An Odd Development

What is newly very apparent is the personal animus that Judge Walton has displayed towards those who have sprung to Libby's defense.

Judge's written rulings are normally dry as dust, way less than 1% are fit for reading by anyone not connected with a particular case. Procedural rulings, the bureaucratic and managerial rulings that determine how a particular case is to be run in the court are drier than dry, they tend to be formulaic, short, curt and generally suck interest out of the reader. Only lawyers actually paid to read them do so.

Last week a group of 12 very distinguished law professors and legal practitioners, most notably including both Alan Dershowitz, the very liberal Harvard specialist in constitutional law, and Robert Bork, a conservative constitutional mind of the first order, asked to be allowed to enter a friend of the court brief in support of Libby's appeal. Their ten colleagues who joined in the brief are on faculties at such schools as Harvard, Rutgers, Pepperdine, Columbia, Georgetown, and Hastings. They are not representing Libby, they are not being paid. It is only because of their deep concerns over the handling and legality of the case that they have joined together to present an argument that Fitzgerald's original appointment coupled with his handling of the case may have deprived Libby of his constitutional rights.

Judge Walton's order allowing the 12 to file their brief was short, formulaic, curt. It contained only three sentences. What was unusual, and what perked up the legal community and law commentators watching the case was this striking footnote added to the order by Judge Walton and directed at Dershowitz, Bork and the others:
It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.
Keep in mind, the 12 are not paid and not representing Libby. Their concern is a potentially serious miscarriage of justice, one that may have lasting and detrimental effects if not corrected. For any federal judge, but particularly one in a case already rife with peculiar rulings, to engage in such snarky personalisms is… odd.

But, then, the whole damn case is odd.

Related Links: No Crime, Do the Time
Scooter Libby: The Witches in Salem Got a Fairer Trial

Hat Tip to The Last Hurrah

UPDATE: Professor Volokh comments on Judge Walton's footnote in What Exactly Is Judge Walton's Beef Here? with the lede "I too found it hard to see any sensible justification for Judge Walton's footnote." His central observation? It makes no sense.

Cassandra at Villainous Company weighs in with somewhat similar thoughts but a thoughtfully different perspective


Seattle Man said...

I have no idea why " lying about a crime that never occurred and didn't exist" is such a telling point.

Suppose a Federal prosecutor -- in the course of an investigation in which I am not even remotely a suspect -- asks me whether I saw X at a particular concert. (I am part of someone's alibi.) I say "Yes I was there at the concert." But I wasn't.

I lied.

Eventually the investigation proves from other sources that the original suspect is totally innocent.

What result?

I think that the prosecutor could charge me -- correctly -- with the crime of lying to a Federal Grand Jury (or whatever it's called.). No? What would be the problem with my indictment in such a circumstance?

Bob Leibowitz said...

I'd agree, on your example. The difference here is that no crime was committed.

Even if Dick Cheney had personally ordered Libby to go out and speak the name "Valerie Plame" to every reporter within 100 miles, in an effort to show that the Wilson trip to Niger was a CIA setup, there would have been no crime.

Even if the memory of each the reporters was perfect and Libby's not, there was no crime.

And, importantly, that was what Libby was unable to show during his trial, because Judge Walton ruled that Plame's position was not relevant to the case.

Cassandra said...

I think it matters here because we are talking about a crime and intent is always a critical element. Furthermore this is not a cut and dried question.

If I were asked specific questions about what I had done two years ago, I couldn't answer. I can't even remember conversations I had two *weeks* ago. When I was younger I could, but let's face it - around 40 or 45 your short term memory goes on you. And we've all told a story and then maybe told it another time and it is slightly different as we remember different facets of it (or if we have Old Timers disease, dismember it entirely the 2nd or 3rd time around). If Libby had something to hide, he could simply have taken the 5th or just said, "I don't remember". But unlike Miller, Cooper, et al, he cooperated willingly with Fitz.

And now he is in jail, unlike Judy Miller who miraculously "remembered" a meeting with Libby only after 85 days in the Alexandria detention ctr. and the promise of immunity. Of course this contradicted HER previous testimony but her "memory loss" wasn't a lie, you understand because she works for the NYTimes and not George Bush. You have to be Pat Fitz to engage in this kind of first class legal thinking - I leave it to lesser minds to puzzle out why Miller wasn't lying or obstructing justice.

Bob Leibowitz said...

Cassandra -- I agree with everything you've said but for one item: "I think it matters here because we are talking about a crime…"

What was the crime? Or, as a great word smith might have put it, Show me the crime.

If the only crime was perjury, and, no I don't mean to minimize perjury, then show me the intent. The only possibility that I've come up with is "Libby lied to protect himself from being tagged with a crime that he thought he had committed."

But, for that to hold water, Libby, and, importantly, his lawyers, would have to have have been less intelligent than anyone else in DC, all of whom apparently knew earlier than Libby what was going on.

If Libby had had the slightest concern about his culpability, he could have much more easily answered, "I don't recall specifically," and let it go.

We're already seeing the effects of this, note Monica Goodling's refusal to testify without immunity, even when she had nothing of interest to say.

In the future the Libby case will stand as a dark beacon of what can happen to a person who tells the truth, a truth that doesn't fit a preconceived but wrong theory, and is hounded into a 30 month sentence.

Cassandra said...

The crime here being perjury/obstruction, not the alleged violation of the IIPA which Fitz himself didn't seem to think important enough to establish that the most basic element of that offense - Plame's covert status - was present up front.

I agree that for intent/obstruction intent is a problem if the underlying "crime" of violation of the IIPA was never proven at trial. There was no "crime" to lie about (or at least this was never demonstrated to the jury beyond a reasonable doubt at trial), therefore where is the evidence of motive for the subsequent "crime" of perjury/obstruction. Last time I checked, motive was an element. Fitz is (I take it) arguing that motive can be inferred from the conflicting testimony, but since he barred a memory expert and he had other witnesses who also had 'memory issues' I have problems with that line of "legal reasoning", especially when it is being used to send a man to jail for 30 months on the strength of evidence never introduced at trial.

That is what I have argued for months. But hey - that's just me :p

Bob Leibowitz said...

Cassandra -- I agree. -- Bob

Seattle Man said...

It doesn't matter whether there was any crime or not.

Libby (or any liar) created a crime when he lied.

Take my hypo and change the facts so that the Prosecutor eventually determines that the not only was suspect X not the perp but that NO ONE did anything criminal.

Nevertheless, for reasons known only to me, I lied when the Prosecutor asked me if I had seen X at the concert.

That's the crime.

Bob Leibowitz said...

Seattle Man -- Thanks. And if the prosecutor knew from the beginning that there was no crime involved, then are the differences in memory a crime or prosecutorial abuse?

If your personal story of three conversations two years ago differs from others and a) there was no crime under investigation, b) the differences in the versions were not material in the determination of whether or not a crime was committed given that none was, and c) there was no support for your version or the other versions, then did you commit a felony?

Is that a standard to which we all want to be held?

I think not.

The witches in Salem got a fairer trial than did Scooter Libby.

Seattle Man said...

If you posit such a far-out condition such as "...if the prosecutor knew from the beginning that there was no crime involved.." then sure that would change the context to me at an emotional level...whether it would change the law I don't known — unless you could go further and show that the prosecutor was part of a criminal conspiracy to unlawfully imprison someone!

Good luck! :)

Bob Leibowitz said...

Thanks, Seattle Man.

We know that the special prosecutor knew from the very first day a) that Armitage "leaked" Plame's name to Novak and b) that it was "inadvertent," or at least that is Armitage's uncontroverted testimony. That goes to lack of intent on the part of the main player. We know that the CIA itself confirmed Plame's employment to Novak for his column, thereby making public whatever might not have been. We know that Plame was not covered under IIPA, in that Fitzgerald never claimed her to be and the CIA has refused to claim her as such, even to this day.

The statute is explicit as all get out: the person needs to be a covered person, the information needs to be not public, there must be criminal intent.

Given that, how could there be a crime?

I don't believe there was a conspiracy, at least in the beginning. I think Fitzgerald became focussed on his need to justify his efforts (2 years and unknown dollars and what, exactly to show for it?) He needed a scalp. I also believe that he developed a religious belief that Scooter Libby was guilty of something.

I believe Judge Walton fell into the same trap, though with different motivations. I believe that he is a true class bigot, given to distrusting and disliking those he perceives as privileged. This shows up in bold in his now-famous footnote.

The two of them became, at the end, a "conspiracy" of righteously avenging angels intent on convicting Libby and sentencing him as though he had violated IIPA.

Vigilantes in a courtroom.

Far-out? Yep. True? Yep.

Scary? Definitely.