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.
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?Defense Experts Barred From Testifying
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.
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:
- 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.
- Ms. Plame's employment with the CIA was "widely known" in Washington circles.
- Richard Armitage first "leaked" the information to Robert Novak. There are no plans to prosecute Mr. Armitage because, again, no crime was committed.
- 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.
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.