Patterico's Pontifications

3/10/2007

Should Libby Have Been Prosecuted Even Though There Was No Underlying Crime? Beldar Responds to Maguire

Filed under: Crime,General,Politics — Patterico @ 12:00 pm



Tom Maguire left a comment on my site recently with a hypothetical relevant to the Libby trial:

[I]f I may be indulged for a moment, let me pose a legal question in the form of a short story:

A controversial University Dean is found dead in the cafeteria; because the Dean had been in good health, poisoning is immediately suspected as the cause of death (OK, a bit far-fetched, but work with me).

The Science Dept. Chair, Prof. Jones, is a suspect – he has access to weird chemicals *and* had been leading a faculty revolt against the Dean.

But Prof. Jones, in grand jury testimony, offers an alibi – he was in Atlantic City all weekend, five hundred miles away.

Well. One fine day, two reports reach the prosecutor’s desk:

(a) Prof. Jones lied – he was, in fact, in town meeting with a group of trustees to plot the overthrow of the Dean.

(b) the medical examiner’s report is unambiguous – death from natural causes due to a rare, previously unnoticed heart condition.

SO – does the prosecutor file perjury charges against Prof. Jones?

YES: Jones lied during a good-faith murder investigation.

NO: Are you kidding – there was no crime!?!

The parallels to the Libby case may (or may not) be obvious, but I am curious to see what folks think.

OK, I am curious to see what I think, too.

I began drafting a post last night in which I would answer the question with an unqualified “yes.” I understood the question to be about prosecutorial discretion, and there’s no question that I would exercise that discretion to prosecute the professor, assuming that the evidence was sufficient to prove the perjury case beyond a reasonable doubt.

I intended to expound on this at some length. But Beldar beat me to it, and I thank him for saving me the effort. He covers both the issues of materiality (which I also meant to address in my post) as well as prosecutorial discretion. He says to Maguire:

Your hypothetical is particularly effective for people trying to understand the Libby situation because it strips the political confusion away that covers that case.

Indeed.

Beldar’s responses were set forth in comments here, but he has reproduced his responses in a clear and coherent fashion in an excellent post at his own site. Go read his response at this link.

The hypothetical is relevant because Libby was prosecuted in part for statements that he made before Fitzgerald was appointed — a subtlety that some of you seem to ignore. Libby spoke to the FBI in October and November 2003. Fitzgerald was appointed on December 30, 2003. In getting to the bottom of the unauthorized leak, Fitzgerald would naturally want to look at the truth or falsity of the statements that major players had made to the FBI. Libby’s statements — especially the ones concerning his conversation with Russert — turned out to be implausible, when viewed in the light of testimony from numerous other witnesses.

As Fitzgerald pursued that investigation, Libby made other false statements in front of the grand jury. I don’t consider that to be Fitzgerald “ruining Libby’s life” — I consider it to be Libby compounding his original error, while Fitzgerald pursued a thorough investigation that included crimes already committed before he was ever appointed.

Beldar notes that real life is not as simple as Maguire’s “nice, clean hypothetical.” But the answer to Maguire’s “nice, clean hypothetical” is indeed an easy one.

46 Responses to “Should Libby Have Been Prosecuted Even Though There Was No Underlying Crime? Beldar Responds to Maguire”

  1. Hm. How many jurors have called for a pardon now? Jurors picked from a DC jury pool, which, if statistics hold, is 90% Democrat?

    Not a thing wrong with that trial. Nope, nothing.

    Everybody had a bad memory. Everybody made conflicting statements. Russert lied, provably, under oath, and the judge wouldn’t let the defense impeach his testimony. Russert submitted a false affidavit. But only Libby was persecuted.

    Not a thing wrong with that trial. Nope, nothing.

    Armitage told Novak, who told the world. So Libby gets persecuted. Armitage wasn’t even called as a witness. Not even deposed.

    Not a thing wrong with that trial. Nope, nothing.

    No crime was committed, as far as we can ascertain, which strikes me as curious. Millions of dollars and years of investigation, and we don’t even know if Secret Agent Girl was covert. So how was anything Libby said material?

    Not a thing wrong with that trial. Nope, nothing.

    http://frum.nationalreview.com/post/?q=ZDg0MTY3NWFlNzAwNzdlYmJkYzFjNzQ4NTBjYTZhMTE=

    “You must think that lying about Joe Wilson is morally reprehensible.

    You mustn’t think that lying by Joe Wilson is morally reprehensible.

    You must believe in a conspiracy to blow Plame’s cover.

    You musn’t believe that the conspiracy included the man who actually did blow Plame’s cover.

    You must think that Plame’s employment at the CIA was a vital national secret.

    You mustn’t think that Plame or her husband had any obligation to help protect that secret – by for example refraining from posing for magazine photoshoots etc.

    You must think that the Bush administration lied about WMD.

    You musn’t remember that the Bush administration was surprised by the absence of WMD.

    You must hunt down and punish any untruth or false statement or even memory lapse by senior officials.

    Except of course you musn’t when those untruths or false statements are sworn under oath by a Democratic president of the United States.”

    Not a thing wrong with that trial. Nope, nothing.

    Clinton lied under oath. And admitted lying under oath afterward. No reasonable doubt. Are you telling me you don’t think there’s ANY reasonable doubt about whether Libby lied or misremembered?

    How in the world is it seeking justice to persecute only one of many folks who made conflicting statements?

    Does your fraternity have a secret handshake?

    jb (d1ee42)

  2. Did you even read the post? Did you even read Beldar’s post?

    You’re asking questions that are already answered.

    Patterico (04465c)

  3. In particular the materiality point.

    Patterico (04465c)

  4. That one’s too easy.

    Suppose that the professor had said that he was at the plotter’s meeting, but he REALLY was in Atlantic city with a young-man-not-his-wife. He repeats this lie to a grand jury.

    You then discover the truth. Do you indict (and, BTW, also destroy his family)?

    Part 2: His defense is that he was confused about the dates when he was in Atlantic City and when the murder was, although he was questioned only two days later. Do you, as a juror:

    1) Convict, as the defense isn’t likely.

    2) Ignore the lie, since he was “only lying about sex”, and acquit?

    Kevin Murphy (0b2493)

  5. Libby’s statements — especially the ones concerning his conversation with Russert — turned out to be implausible, when viewed in the light of testimony from numerous other witnesses.

    Patterico – are you capable of even entertaining the idea that maybe Libby didn’t lie, maybe he just didn’t remember things correctly – as was the case with virtually every prosecution witness as well as with the jury itself during deliberations, by their own admission? Is it even possible in your own world that a jury that convicts could possibly ever be wrong?

    thirteen28 (1da714)

  6. Absolutely.

    Convince me. With links.

    Are you capable of entertaining the idea that he did lie?

    Patterico (04465c)

  7. The fact that some of the jury are calling for a pardon, and all seemed to be pretty sympathetic to Libby’s situation (according to that WaPo reporter juror), gives me even more confidence that the conviction was justified and that Fitz presented charges that were legit and not BS.

    They were presented evidence from which to determine facts, and were presented with the law, and went over everything carefully (10 days) and found they were obligated to convict even though they weren’t eager to do so.

    This gives me much more confidence in the jury system than a case involving jury nullification, where the jury refuses to convict because they decide the law is stupid, or because they think the defendant deserves a break despite the law and evidence.

    aplomb (4c3235)

  8. Aplomb:

    This gives me much more confidence in the jury system than a case involving jury nullification, where the jury refuses to convict because they decide the law is stupid, or because they think the defendant deserves a break despite the law and evidence.

    Well said.

    DRJ (0c4ef8)

  9. #

    Absolutely.

    Convince me. With links.

    Are you capable of entertaining the idea that he did lie?

    Comment by Patterico — 3/10/2007 @ 12:55 pm

    I’m absolutely capable of entertaining the idea that he did lie. But it’s much more difficult for me to entertain the idea that Fitzgerald proved his case beyond a reasonable doubt.

    You want links? I already directed you to Tom Maguire’s site – go though some of the posts there that took place during the trial. The testimony is very well fleshed out. If you do, you will see that virtually every single prosecution witness either had trouble recalling certain facts or made statements that were demonstrably untrue (whether intentionally or not). We are expected to believe that Libby’s memory was pitch perfect and that there is no way he could have misstated things through faulty memory but it’s perfectly reasonable for every other witness to forget critical details, including details of their conversations with Libby. In light of that, there is no way IMO Fitzgerald came close to proving, beyond a reasonable doubt, that Libby did indeed lie.

    thirteen28 (1da714)

  10. Perhaps there should be a checkbox on the juror form, where they rate the counsel and the charges.

    Charge: Guilty
    Law: Particularly silly
    Prosecutor: Rabid jerk
    Defense: Condescending moron
    Judge: Solomon

    Kevin Murphy (0b2493)

  11. Patrick, is the perjury charge the real sticking point here? Would you still have prosecuted if Libby had recanted and then told the truth to the grand jury?

    Kevin Murphy (0b2493)

  12. Kevin,

    In jurisdictions where it’s allowed, attorneys frequently do interview the jurors after a verdict to see why they decided the case the way they did. Often the answers are not flattering to the participants. In addition, good trial attorneys can tell what the jury thinks about them. That’s why they’re good.

    DRJ (0c4ef8)

  13. P.S. What effect will this case have on witnesses called to testify in future grand juries?

    Instead of doing their best to remember and give testimony, they’ll take the safe and unhelpful “I don’t recall” route.

    Prosecutorial misconduct.

    You’re focusing only on the verdict. While ignoring everything else in the universe. So, based only on the verdict, I agree, Scooter is guilty.

    Seek justice, not convictions.

    jb (d1ee42)

  14. thirteen28:

    I simply don’t have the patience to go to Tom Maguire’s site and read every post he’s done on this trial.

    Separate the wheat from the chaff for me. Tell the top three or five reasons Libby isn’t guilty — with a link for each one.

    Patterico (04465c)

  15. Would you still have prosecuted if Libby had recanted and then told the truth to the grand jury?

    Possibly not.

    Patterico (04465c)

  16. In the hypothetical there was no underlying crime.

    In the Libby case nobody was prosecuted for the underlying crime.

    Those aren’t the same thing, they’re pretty far from each other.

    Gary Carson (c536f6)

  17. Mr Carson wrote:

    In the hypothetical there was no underlying crime.

    In the Libby case nobody was prosecuted for the underlying crime.

    No one was prosecuted for the “underlying crime” in the Libby case because there was no underlying crime.

    Our friends on the left have been all over themselves with the notion that Dick Cheney and Karl Rove got away with a crime in all of this, to the point that they’ve persuaded themselves, but the facts are simple: the White House played political hardball with Joe Wilson, but there was no actual crime committed in doing so.

    Dana (a90377)

  18. You say: “But Prof. Jones, in grand jury testimony, offers an alibi – he was in Atlantic City all weekend, five hundred miles away.” But, the prosecutor knew the death was from natural causes and thus not a crime before the grand jury was convened.

    You say: “The hypothetical is relevant because Libby was prosecuted in part for statements that he made before Fitzgerald was appointed — a subtlety that some of you seem to ignore.” As I recall the reports of testimony, the FBI said that Russert could not be sure that he had not discussed Plame with Libby in his FBI interview. It was known that there was no crime, including lying to the FBI, before the grand jury was convened.

    Charles Harkins (971090)

  19. If you do, you will see that virtually every single prosecution witness either had trouble recalling certain facts or made statements that were demonstrably untrue (whether intentionally or not)..

    Hypo:

    Guy walks into insurance office and announces that his mom died. He wants to collect on the insurance money. He has a noticeable scar on his face. Nine people (five employees, and four customers with no stake in the company) hear him make the announcement that his mom died and he wants to collect.

    He’s later prosecuted for insurance fraud, and nine witnesses say they remember him coming in to say his mom died. They all say it was weird the way he said it — like he was pleased or something. He was smiling ear to ear when he said his mom died. They’d never seen anything like it before. And they remember the scar.

    His visit is on video, but you can’t hear what he’s saying.

    He testifies and says, yes, he went to the office that day (well, it’s on video, so he’s gotta admit that). But he didn’t say his mom died.

    Of the nine witnesses, everyone gets something wrong.

    One says he had on a blue shirt. In the video, it’s clearly green.

    A second says he was 6 feet. But he’s 5’8″.

    A third says the scar was on the right side of his face. It’s on the left.

    A fourth says there were eight witnesses. But there were nine.

    A fifth says he said his mother died that day. All other 8 witnesses say he had claimed it had happened the day before.

    A sixth says it was a Tuesday. It was a Wednesday.

    A seventh says she has a bad memory in general.

    An eighth says the guy was in there 5 minutes. But the video shows it was 15.

    The ninth says he had a button-down shirt on. The video shows a pullover.

    All nine agree on what he said, and how he said it.

    Now: virtually every single prosecution witness either had trouble recalling certain facts or made statements that were demonstrably untrue (whether intentionally or not).

    A juror who really wants to acquit can always look at the inconsistencies I mentioned and scream reasonable doubt.

    But applying common sense, this is a memorable event, given the way the guy announced — with a big grin — that his mom had died.

    Witnesses misrememeber the irrelevant details and remember the important ones.

    That’s how memory works.

    But you can always call anything reasonable doubt.

    Patterico (04465c)

  20. Doesn’t that follow the argument, “Should Clinton be impeached even though there was no underlying crime?”

    Kevin (e89cee)

  21. Would you still have prosecuted if Libby had recanted and then told the truth to the grand jury?

    I think that explains Rove’s five trips to testify and why he was not ultimately charged with anything.

    Tracy (63e43e)

  22. Witnesses misrememeber the irrelevant details and remember the important ones.

    That’s how memory works.

    But you can always call anything reasonable doubt.

    Comment by Patterico — 3/10/2007 @ 1:48 pm

    Are you sure that’s how memory works? Libby wanted to call a memory expert to dispell some of the common misconceptions regarding how memory works, of which there are many. The judge wouldn’t let him. I expect that issue will be explored on appeal.

    With regard to your post #14 addressing me, I don’t have that time either, but contrary to your admission that you didn’t follow this case or this trial closely, I did. And I already gave you reasonable doubt – Libby could have just as easily forgotten details about his conversations with Cooper, Miller, and Russert just as easily as they forgot certain details of those conversations as was shown on cross examination for them and every other prosecution witness. I’d love to hear your explanation as to why it’s not reasonable to believe otherwise.

    thirteen28 (1da714)

  23. Does anyone know why Libby’s defense was not allowed to present the two other cases in which Russert’s memory was clearly shown to be false?

    Michael Smith (b8378c)

  24. #

    Does anyone know why Libbys defense was not allowed to present the two other cases in which Russerts memory was clearly shown to be false?

    Comment by Michael Smith 3/10/2007 @ 4:27 pm

    The judge wouldn’t allow it.

    [I keep reading things about what the judge wouldn’t allow, e.g. Andrea Mitchell’s statements from Imus. But did the defense propose to call Mitchell, have her testify that what she said on Imus was wrong, and impeach her with the Imus tape? Or just play the Imus tape? Because the latter would be blatant hearsay. — P]

    thirteen28 (1da714)

  25. On a different but allied subject —

    I want a Federal post, equivalent I suppose to Poet Laureate: something that isn’t even connected to the political process.

    The post would be styled “Explainer of the Law.” And the hon. Mr. Dyer (“Beldar”) should be appointed to it, having been frogmarched there by Federal Marshals if necessary.

    Regards,
    Ric

    Ric Locke (570410)

  26. I do have a question on this. While I’m not convinced that Libby intentionally lied, I’ll accept that as as stipulated for the example. So let’s extend it to be a little more analogous to the actual facts in the Libby case.

    Assume that the lie was told to investigators, not the grand jury. And subsequent to this the prosecutor gets the medical examiners report. At that point, is it appropriate to call the Professor in to the grand jury, without letting him know the facts of the report? You’ve got him nailed on at the minimum obstruction of justice already.

    That’s a serious question, by the way. I’m not intimating that it is, or isn’t.

    Skip (df95da)

  27. I got a blowjob from an intern in my office once. The only person I lied to about it was my wife. Is that a crime?

    The Liberal Avenger (b8c7e2)

  28. Nah. Good thing you lied to far fewer people than Bill Clinton did in a similar situation. And unlike him, you didn’t lie under oath.

    Patterico (04465c)

  29. Does the number of people Clinton lied to about the blowjob really matter, P? That’s weak.

    The Liberal Avenger (b8c7e2)

  30. No, the fact that he lied to about 280 million people about the blowjob is not the important thing. The fact that he did so to people other than his wife — while he was under oath — that’s what was important.

    Patterico (04465c)

  31. Is there a stained dress, LA? ‘Cuz I’m not buying it. That story has John Mark Carr written all over it.

    Pablo (08e1e8)

  32. Re: #24

    Thanks, thirteen28, but I am aware the judge would not allow it; the question is, why? What was the legal basis for keeping it from the jury?

    Michael Smith (b8378c)

  33. Last I heard she was a VP at Petronas. Some intern!

    The Liberal Avenger (b8c7e2)

  34. I dont know this, perhaps Mr. Maguire, you, or Beldar does. Did Fitzgerald believe that Libby committed perjury before or after he knew the source of the leak was Armitage?

    bains (dd1157)

  35. Did we ever find out how it was that Armitage was privy to the information in the first place?

    The Liberal Avenger (b8c7e2)

  36. [I keep reading things about what the judge wouldn’t allow, e.g. Andrea Mitchell’s statements from Imus. But did the defense propose to call Mitchell, have her testify that what she said on Imus was wrong, and impeach her with the Imus tape? Or just play the Imus tape? Because the latter would be blatant hearsay. — P]

    Russert stated that if Andrea Mitchell would have known about Plame, then he would have as well. Mitchell said on Imus that “everybody knew she worked at the agency” (paraphrasing; not sure of the exact quote). Thus, the value would be in putting her on the stand and under oath and asking her if she had ever discussed the matter with Russert.

    Couple that with Russert’s original statement to FBI investigators that he “could have” told Libby, and this adds up to another rock the defense wasn’t allowed to overturn.

    32 – I don’t recall what the legal basis was for that ruling.

    thirteen28 (1da714)

  37. Assume that the lie was told to investigators, not the grand jury. And subsequent to this the prosecutor gets the medical examiners report. At that point, is it appropriate to call the Professor in to the grand jury, without letting him know the facts of the report? You’ve got him nailed on at the minimum obstruction of justice already.

    That’s a serious question, by the way. I’m not intimating that it is, or isn’t.

    You might want to read my latest post on Libby, and in particular Beldar’s post cited therein. It addresses that question.

    Patterico (04465c)

  38. Russert stated that if Andrea Mitchell would have known about Plame, then he would have as well. Mitchell said on Imus that “everybody knew she worked at the agency” (paraphrasing; not sure of the exact quote). Thus, the value would be in putting her on the stand and under oath and asking her if she had ever discussed the matter with Russert.

    But you didn’t answer my question. I remember reading that Mitchell had recanted that statement. You can’t just play a tape from Imus; you have to call the witness, ask them the question, and if necessary impeach them with the tape. Otherwise the tape is rank hearsay.

    Did the defense propose to call Mitchell? Or just play the tape? Because proposing to just play the tape would be nothing more than a publicity stunt — something that every lawyer knows is not allowed.

    From everything I’ve read, that’s what the defense wanted to do. Correct me if I’m wrong.

    And he might not have been allowed to call Mitchell anyway, even if he’d wanted to, if there was no evidence that Russert had been told. And they may not have wanted to call Mitchell if she was just going to get up and recant her statement.

    Couple that with Russert’s original statement to FBI investigators that he “could have” told Libby, and this adds up to another rock the defense wasn’t allowed to overturn.

    The defense wasn’t allowed to ask Russert about that point? That assertion is not consistent with my memory. I think what you mean is that the notes were lost (some of you think deliberately disposed of) and therefore the cross-examination was not as effective as it could have been. But I believe there was a summary that the defense used to ask Russert about this. Again, am I wrong about that??

    Patterico (04465c)

  39. The defense proposed to call Mitchell, not just play the tape. Fitz moved to limit the testimony. Judge Walton granted the motion on several independent bases, but in general, that the proffer by the defense called for too much speculation by the jury.
    .
    The defense proffered that it would use Mitchell’s “everyone knew” statement (whether true or not) into a possibility that she knew, and from that, that if she knew, she would have told Russert, and therefore, that Russert could have told Libby, just as Libby’s theory of the defense recites.
    .
    Links to Pleadings
    .
    See near the bottom of “4. Rulings on Motions in limine”

    cboldt (a60d7f)

  40. Thanks cboldt, you beat me to it. P, there’s the answer to your question about calling Mitchell.

    With regard to you other question, the defense wasn’t prohibited from asking, and I’m pretty sure they did. I think the defense could have made the point stronger by bringing in Mitchell to answer questions about what she said on Imus and asking her directly under oath if she would have told Russert. If Russert’s original statement is that he could have told Libby, and Mitchell testifies that she could have told Russert, it potentially impeaches Russert’s later testimony that there’s no way he could have told Libby.

    thirteen28 (1da714)

  41. So it’s like I said:

    And he might not have been allowed to call Mitchell anyway, even if he’d wanted to, if there was no evidence that Russert had been told.

    Sounds like there wasn’t.

    Patterico (04465c)

  42. #

    So it’s like I said:

    And he might not have been allowed to call Mitchell anyway, even if he’d wanted to, if there was no evidence that Russert had been told.

    Sounds like there wasn’t.

    Comment by Patterico — 3/11/2007 @ 11:10 am

    And by not putting Mitchell under oath, either during the investigation or during the trial itself, the prosecution was able to ensure that no evidence would surface that Russert had been told. Brilliant!

    thirteen28 (1da714)

  43. Liberal Avenger asked:

    Did we ever find out how it was that Armitage was privy to the information in the first place?

    According to Armitage, he found out from Joe Wilson. Armitage says Wilson was “calling everyone and telling them” because he was pissed off that no one would take his Niger report seriously and he wanted them to know that his wife, who worked on WMDs at the CIA, had sent him and believed his report.

    So there is your ultimate leaker: Joe Wilson.

    Michael Smith (b8378c)

  44. And by not putting Mitchell under oath, either during the investigation or during the trial itself, the prosecution was able to ensure that no evidence would surface that Russert had been told. Brilliant!

    If the defense could have represented to the judge that Mitchell would say that, they would have been allowed to put her on the stand.

    Patterico (04465c)

  45. Just one more point. The defense had an offer on the table, from the Court, to put Mitchell on the stand OUTSIDE the presence of the jury. This offer was not conditioned on the defense offering that Mitchell would testify one way or the other as to whether or not she did or could have told Russert that Mrs. Wilson works at the CIA, sometime before the Russert/Libby conversation.

    cboldt (a60d7f)

  46. Sure. That’s standard. Put her up and see what she’d say.

    My guess: they knew she couldn’t provide evidence that provided the connection required by the Court.

    Patterico (04465c)


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