Patterico's Pontifications


Notes on the Libby Trial

Filed under: General — Patterico @ 7:09 am

Three somewhat unrelated points on the Libby trial:

1) Some say that Libby didn’t have a motive to lie. I’m not sure I buy that, but if you do, you might be interested in this Beldar war story about a witness who lied under oath with no apparent motive to do so.

2) I don’t understand why people fault Fitzgerald for being thorough. Libby was prosecuted in part for lies that he told law enforcement before Fitzgerald was even appointed. According to the partisan Republicans, Fitzgerald should have simply overlooked those lies, and/or not dug deeper. I’m not convinced by this argument.

3) I’ll grant the Libby defenders this: Tom Maguire raises some seemingly valid concerns about Fitzgerald’s conduct here. In an ideal world, some journalist would book Fitzgerald for an interview and ask him the questions raised by Maguire’s piece. Maybe Tim Russert could have him on Meet the Press!

49 Responses to “Notes on the Libby Trial”

  1. Thorough is good. Libby should not have lied under oath or to the FBI. Thorough can be expensive, though.

    If Fitzgerald was part of a prosecution team with multiple responsibilities and a limited budget, would he have been so thorough. Note that line of thinking is more to point out a disadvantage of independant special prosecutors, rather than to criticize Fitzgerald.

    Could it be that budgetary restraint is an important factor in prioritzing how we attempt to achieve justice in an imperfect world?

    And I think it’s important to apply the same concern to all the independant special prosecutors going back to Watergate, including Whitewater. Whitewater was productive in Arkansas, but did we get good value for the money?

    One reason a person might lie is that he is embarrassed or fearful about having a bad memory. He remembers incorrectly, then when his memory is jogged, instead of immediately correcting himself, he, because he is embarrassed about misremembering or because he is fearful of prosecution, sticks with his incorrect story. In another case, he doesn’t want to admit remembering nothing, or that his memory is vague, either because he is embarrassed about not remembering or because he is fearful of prosecution, so he firms up a vague memory with plausible details, especially if the questioning is leading in any way.

    I have a seperate question for you as a prosecutor. It seems my best courses of action, should I ever be involved in an investigation, would be to refuse to answer any questions without referring to notes or other established evidence, or to qualify every statement with reference to how rotten my memory is (and, as my family will tell you, it’s pretty bad). Would this undermine my credibility on the witness stand, or enhance it? Am I establishing my credibility as a careful witness, or impeaching my own testimony? Would you, as a prosecutor, find it irritating and unhelpful?


    Wince and Nod (931cf0)

  2. What’s the evidence that Fitzgerald was thorough? In my book it looks liek the opposite. How much effort did he put into finding out whether Russert knew about Plame before he spoke to Libby? How much effort did he put into finding out whether Andrea Mitchell (everyone knew) had heard of Plame, and where she might have heard it? he didn’t even speak to her. He knew from the get go that Armitage was Novak’s source. Why didn’t he look into who else Armitage might have leaked to? Nick Kristof of the Times had written articles that seemed to indicate he knew too. Why didn’t Fitzgerald talk to him?

    Fitzgerald’s investigation was so thorough that it missed the Woodward leak entirely.

    I don’t think anyone can fault Fitzgerald on conducting a thorough investigation. The problem is that his investigation was too narrow. And of course his bringing up the big case in rebuttal after having prevented the defense from addressing the big case is deplorable, although it was clearly effective.

    nittypig (da22a0)

  3. 2) I don’t understand why people fault Fitzgerald for being thorough. Libby was prosecuted in part for lies that he told law enforcement before Fitzgerald was even appointed. According to the partisan Republicans, Fitzgerald should have simply overlooked those lies, and/or not dug deeper. I’m not convinced by this argument.

    Thorough? You mean as in thorough enough to put Richard Armitage in front of the Grand Jury, which he never did although he knew from the outset that Armitage was the first to leak Plame’s name – in a case where said leak was the impetus for beginning the investigation in the first place?

    Not to mention the names not called to testify in post #2.

    So let’s get this straight:
    1- Armitage leaks Plame’s name to both Woodward and Novak.
    2 – Fitzgerald is appointed Special Counsel to investigate whether said leak is a violation of the IIPA.
    3 – Fitzgerald knows from the beginning that Armitage was the first leaker.
    4 – Fitzgerald never subpoenas Armitage to testify.

    Wow, if that’s what you call thorough, I’d hate to see what less than thorough is to you.

    thirteen28 (5ad670)

  4. I agree with the first 3 commenters. As they point out — and Tom Maguire has documented repeatedly — Fitzgerald showed an amazing lack of curiosity about who else was or was not telling the truth. But the important thing to note is that, from the get-go, Fitzgerald knew that the leaker was Armitage, and that no law had been violated. The only ethical thing to at that point was to close up shop. Maybe, if there was already slam-dunk evidence that Libby had lied under oath, one could argue that going after the perjurer was warranted. But there was no smoking-gun evidence of perjury; there was conflicting testimony by lots of people who remembered things differently. And what was Fitzgerald’s excuse for throwing Judith Miller in jail? Sorry, but this is a case of a prosecutor gone wild.

    Tim K (7e41e8)

  5. BTW, WSJ has a piece out today on their opinion that Walton’s refusal to allow Libby to call a memory expert as a defense witness might constitute reversible error. It’s subscription only, but Thomas Lifeson of The American Thinker excerpts here:

    thirteen28 (5ad670)

  6. Keeping in mind that Fitzgerald is also the U.S. Attorney for the Northern District of Illinois, appointed by President Bush, how about this theory:

    “No leaker is safe”. The administration may have been trying to send that message. The Bush Administration has been plagued by leaks damaging to national security — the NSA monitoring of terrorists’ telephone calls and the SWIFT program come to mind — from dissident holdovers in the State department and the CIA. That the message might not have the impact that the Administration wished will be because the current crony AG would not make a pimple on a real Attorney General’s (such as Ashcroft) behind and not because of Fitzgerald. Fitzgerald’s “overzealousness” is the threat the Administration wanted to make.

    nk (db0112)

  7. Look up the transcripts of the witnesses in the actual trial.

    There are quite a few flat-out contradictions between ‘trial testimony’ and ‘grand jury testimony’.

    Since one set is exculpatory, that makes this a material change, yes? And thus we need about 6 more perjury trials.

    Al (b624ac)

  8. P.S. Fitzgerald has also been sending a lot of Chicago Machine thieves, Republican and Democrat, to prison since he took office which kind of makes me like him.

    nk (db0112)

  9. Thanks for the link, and if 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.

    Tom Maguire (3f7e6c)

  10. “No leaker is safe”. The administration may have been trying to send that message. The Bush Administration has been plagued by leaks damaging to national security — the NSA monitoring of terrorists’ telephone calls and the SWIFT program come to mind — from dissident holdovers in the State department and the CIA. That the message might not have the impact that the Administration wished will be because the current crony AG would not make a pimple on a real Attorney General’s (such as Ashcroft) behind and not because of Fitzgerald. Fitzgerald’s “overzealousness” is the threat the Administration wanted to make.

    Comment by nk — 3/9/2007 @ 9:26 am

    So somehow this is Bush’s fault now?

    Your theory makes every bit as much sense as your “Libby fell on his sword to protect Rove and Cheney” theory on one of the other threads, i.e. none. If Bush wanted to send a message about leaks, why not go after the original leaker in this case (Armitage), or better yet, go after a leak that actually damaged national security, unlike this one?

    And of course, your theory assumes that the administration had some sort of control of this investigation, which is demonstrably wrong as well.

    thirteen28 (5ad670)

  11. The lesson I’ve learned from the Libby case is: under no circumstance every voluntarily cooperate with a prosecutor, even if you are absolutly sure that you did not commit the crime that you THINK he is investigating. And if compelled to testify, if you have any doubt whatsoever of your memory (99%) say you do not recall.

    If Libby had followed those rules he would be a free man today.

    Kazinski (03d26d)

  12. Thoughts in response to your three points:
    1. From Beldar

    It was about 6:00 p.m. when it was finally my turn, and everyone was pretty tired. Dr. M___ in particular was beginning to look kind of ragged. When I started my questions, he interrupted to ask, “Can you finish up in 15 minutes or less? I’ve got a headache, my allergies are acting up, and I’ve been up since 5:00 a.m. today making rounds and doing three different surgeries, and my wife and I are supposed to go to a charity function tonight.”

    I suggest the reason, stupid as it may have been, was right there. My personal record of being in the hospital was 126 hours in one week when I was an intern on surgery. Sleep deprivation can be a powerful motivator. The day he described may have been only the most recent of several. I suggest the doctor didn’t believe it was really going to be “just a few more minutes”, wanted to get out, and didn’t see the question as relevant and answered with the attitude, “I’m going to get out of here.”
    I don’t excuse the doctor, but I do disagree that, “He had no reason to lie”. Lawyers (at least some) work very hard, and I do not want to get into tit-for-tat nonsense, but to work to exhaustion, with actual real time potential for life and death mistakes, often getting more flack than anything else, can contribute to one’s patience being very thin.

    2. My original assumption was that Armitage’s leak was known very early in the investigation, it was decided no crime had been done, so why keep investigating? The answer, in part, to Fitzgerald’s defense, is that when he was given the case much testimony had already been given, and he reviewed it and followed up on inconsistencies.
    The charges of “selective” thoroughness by posters above is something I haven’t looked into enough to have an opinion.

    3. You and others have discussed some of the specific details of the trial proceedings. My MAIN problem, as said before, is it appears that Fitzgerald has played up, both in trial and after trial, the idea that a bigger crime and conspiracy had happened, but that nobody else could get caught. This is exactly what jurors have said, where’s the evidence??
    Where is there a cloud over the VP, except one given by Fitzgerald and those who had preconceived ideas? I think if Fitzgerald was simply interested in making clear you don’t get away with perjury, he didn’t have to go in that direction, but in the public interest could have stated what the triasl did not prove, and try to limit the nonsense you have already mentioned in the LA Times. Nonsense is nonsense, even if only the dog would read it!

    My secondary complaint is I don’t think he had an impartial jury of his peers. Do people let doctors be on a jury where a doctor is charged with malpractice? I don’t think so. Why should a WaPo journalist be on a jury where it is a he said- he said involving reporters?

    MD in Philly (3d3f72)

  13. Comment #10, thirteen28,

    What Bush wants and what his Attorney General delivers are two entirely different things. As an Attorney General, Alberto Gonzalez would make a very good gardener. And I only proposed it as a theory speculation. Even wishful thinking. I wish that the Administration would adopt a “no leaker is safe” policy and appoint an Attorney General who can implement it.

    nk (db0112)

  14. nk,
    I can’t say I know enough about AG AG to agree with you, but if a man is known by his enemies, AG doesn’t seem too have many in the press or among the Dems.

    We agree on a no leaker is safe policy. Let a new AG start with looking at the DOJ failure to handle the Berger case responsibly. Maybe Berger is off the hook by being free from “double jeopardy”, (unless he lied to investigators along the way), but justice was not served.

    MD in Philly (3d3f72)

  15. The message I got from the Libby trial was shut up, lawyer up, don’t cooperate. Else you may end up the target.

    That’s counterproductive to justice.

    And I was a JOM regular, so I sorta dug into it from a layperson’s perspective.

    I’m of the opinion Fitz went the way of Nifong, though not as far. He went as far as he needed to to get SOME conviction of some sort. He cherry-picked evidence and witnesses to prove his case, while ignoring anything that might prove exculpable. Finding truth was not at issue. “Justice” was in seeing that someone was punished for alleged out-of-control action by OVP. To see where I arrive at this you need only compare his press conference statements about the indictment, the indictment itself, and the actual case at trial. The divergence among these is not minor.

    No idea if Libby actually lied or not, not willing to accept that the just in question was close to impartial. I read the “transcripts” of the process of selecting them. If he did lie, he deserved conviction and any sentence the judge hands down. But Fitz did not prove beyond reasonable doubt to an impartial jury. That was a patchwork case where the witnesses were as guilty of the “crime” as was the accused. Russert lied on the stand. A far more provable case could easily be made to convict him than Fitz did with Libby.

    My best hope was a hung jury. I considered the whole process a farce once it came out that Fitz effectively (and legally in one case) immunized the two admitted leakers, both of whom did so before Libby might have. He just wasn’t interested in exploring the real object of investigation, probably because it was evident very early on that there was no crime.

    I don’t at all see constitutional grounds for the appointment of Fitz in the first place. In fact, the earlier actions of the legislative branch sent a pretty clear signal that such a powerful, but outside the three-branch structure, should not exist. Yet… there it was again. Politics before law in action.

    I’m a hardcase on journalistic priviledge too. I don’t believe that they should have any. The so-called priviledge is reading too much into the Constitution. Once it’s known a crime was committed, they should be compelled to cooperate as should any other citizen, including executive personnel.

    But, as I said, I’d expect any person, reporter or not, with sense to shut up and lawyer after seeing this process at work. And a lot more would resemble Judy Miller, sitting out contempt charges until the prosecutor or judge got tired of playing chicken. (Not that her performance made much sense in this context! But then I’m not meaning to suggest that sense and reporters correlate in any positive fashion statistically.)

    But there are appeals to come. If the system has any integrity left, I expect to see this overturned.

    Dan S (d617a4)

  16. Err, “just” should be “jury.”

    Dan S (d617a4)

  17. Tom Maguire,

    I think the prosecutor should pursue perjury charges against the Professor, if “only” to send the message you can’t lie with impunity to a grand jury.

    DRJ (0c4ef8)

  18. The message I got from the Libby trial was shut up, lawyer up, don’t cooperate. Else you may end up the target.

    That’s counterproductive to justice.

    Thanks DanS – excellent post. The only thing I would add is don’t talk to reporters either – which of course is counterproductive to the flow of information in a free society.

    thirteen28 (5ad670)

  19. Fitzgerald KNEW who first revealed Plame’s name PRIOR to even interviewing Libby. Plame WAS NOT a covert agent and no statute had been violated so no inestigation was necessary. So when Fitzgerald interveiwed Libby he was questioning him about something that HAD NOT HAPPENED. Subsequently he was asking questions of someone with an INTENT to get an incorrect answer.
    It apparently it took several members of the media, one of whom went to jail, to create an indication that Libby lied about something that didn’t happen in the first place. Only after days of deliberations and countless sticky notes did several angry Huffington Post readers find out a way to convict this poor fellow and still ask where Karl Rove was.
    They mention a guy who wasn’t even on trail and acted as if he’s been on trail. Talk about tainted. Still they had to be led with a baton by a prosecutor who said at the beginning the Libby indictment wasn’t about the war but it was about lying. And led they were as this same snake oil salesman said just that in his closing argument and that the trial was about a vice president (also not on trial).
    Nevermind a judge who allowed it to be trial about memeory yet did not allow expert witnesses to such.
    I’m sorry to have to so vehemently disagree with a blogger I admire so much but insert the smelling like a duck metaphor here.
    There have examples in recent years of what prosecutorial misconduct is. This smells like it.

    Bob (da4994)

  20. And another thing. Your faith in the jury system is touching. And maybe a bit naive.

    I guess you think know OJ is innocent too. Why aren’t you out defending him from the scurrilous charges being leveled against him?

    I’ve read your blog for years, literally. Never disagreed until now, literally. Which makes me think there’s something to that “fraternity” argument. You’re usually more questioning of authority. And you seem to be ignoring the political aspects.

    Motive. Oh, he had a motive. He desperately wanted to cover up a non-crime.

    And thoroughness? It’s fine, as long as you remember you’re supposed to seek justice and not necessarily seek convictions. Do you think that’s what Fitzfong did?

    I still can’t figure out why it was so important to investigate when it apparently wasn’t very important to ascertain whether a crime was (or even could have been) committed with the “disclosure” of Secret Agent Girl’s identity.

    Wasn’t that the point?

    jb (9723fd)

  21. Fitz had visions of flipping Libby and nailing the VP. Failing that, he tailored a prosecution to exclude exculpitory witnesses and condoned lying by his star witness, Russert.

    From where I sit, Fitz made a mockery of the “justice” system and the judge condoned it.

    Retiree (0c909a)

  22. I was intrigued by the item that the judge refused to allow a video presentation (Thre MTP program segments) to impeach Russert’s testimony that he didn’t know a lawyer was not permitted to accompany a client into the grand jury hearing. That would have been a mirror image of the charge against Libby.

    I was once involved in a trial as a plaintiff witness where that was an issue. I had testified that the defendent had used an obsolete method of performing a test. The defense attorney then impeached my testimony by making a false statement in court, one of two occasions where I have seen this. He said that my own hospital used the same method as the one I had criticized and would that information alter my testimony? I replied that I was unaware that his statement was correct. He represented that it was. After I completed my testimony, I called the hospital pathologist and was told that the test in question had not been used in 10 years. The defense attorney had lied. I was leaving town but arranged for the pathologist to make himself available as a rebuttal witness. I think it would have been impressive to show the jury that the defense lawyer lied. The plaintiff attorney, a rather languid character, declined and they lost their case. Oddly enough, the plaintiff was a high profile Hollywood lawyer who should have known better.

    Barring the impeachment of Russert’s testimony, even on a detail, was a mistake that should not stand.

    Libby was entrapped by contradictory memories. He should have kept his mouth shut when he wasn’t awfully sure but I don’t think that is lying. Part of his job is responding to attacks on the administration.

    Mike K (6d4fc3)

  23. It takes a person of extraordinary character to be handed a position of power, unlimited resources and constant, fawning media attention and then to say within shortorder “Sorry, everyone. No crime took place, we’re closing shop.”

    It seems that Fitzgerald gets an “D” in the character department (the MSM tools that keep up the fact-challenged schtick that the leak was a White House conspiracy come in with the “F” and the excreble Joe Wilson holds the “F-“)

    Darleen (543cb7)

  24. Question to those that favor this verdict since perjury is a crime, and particularly the prosecutors among us, including the host:

    In light of what is revealed in this story:

    … should Russert be indicted for perjury or obstruction of justice?

    thirteen28 (5ad670)

  25. I keep hearing that exculpatory witnesses were excluded. Which ones, pray tell, and what on earth would have prevented the defense from calling them?

    T.E.G. (1b40b2)

  26. I keep hearing that exculpatory witnesses were excluded. Which ones, pray tell, and

    what on earth would have prevented the defense from calling them


    Comment by T.E.G. — 3/9/2007 @ 2:57 pm

    The judge.

    The judge refused to allow Libby’s defense to call a memory expert. The judge refused to allow Libby’s defense to call Andrea Mitchell, who was a close colleague of Russert’s. And the judge refused to allow the defense to recall Russert to question him per the items discussed in the article I linked post #24.

    thirteen28 (5ad670)

  27. Another thought. What if there was no crime no matter who “outed” Ms. Plame because she wasn’t covert. Shouldn’t that have stopped the investigation before it started?

    I hope and pray that any Congressional hearings get more basic truth out. If it hurts the President, and it’s truth, it needs to come out. If it was another chapter in the established bureacracy in the CIA, State Dept., and DOJ warring against the president, I hope that comes out too, real clear.

    MD in Philly (3d3f72)

  28. From my favorite potty-mouth, Ann Coulter:

    “With no crime to investigate, Fitzgerald pursued a pointless investigation into nothing, getting a lot of White House officials to make statements under oath and hoping some of their recollections would end up conflicting with other witness recollections, so he could charge some Republican with “perjury” and enjoy the fawning media attention.”

    That pretty much nails it.

    jb (9723fd)

  29. The absence of a crime did not prevent Martha Stewart from going to prison. She was advised by her attorneys to talk to the SEC investigators without them present. She did and said some things that proved to be untrue. The insider trading charge never came. She was convicted on the misstatements to investigators. Her company lost a hundred million dollars and there was no charge of substance; only the perjury charge.

    Mike K (416363)

  30. Mike K,

    I appreciate your point.

    Let me put it concrete-If the CIA says, “Hey, who leaked our agents name?”, and the DOJ has no evidence she was covert to be “leaked”, why should there have been any investigation by the DOJ of anything, leading to potential perjury charges?

    MD in Philly (3d3f72)

  31. just as long as those of you who are defending libby and saying “no crime” realize that your arguments apply with equal force to kenneth starr’s investigation of bill clinton. it’s perfectly legal for you to give and receive fellatio from another consenting adult.

    assistant devil's advocate (9466a2)

  32. A somewhat long time ago, the mayor of Chicago and the governor of the State of Illinois were called before the IRS for failing to report certain “income”. The mayor showed up with a lawyer and a court reporter. The governor came in alone and freely answered all the questions the Special Agents put to him. Can you guess which one went prison?

    nk (db0112)

  33. ADA, Clinton was the chief executive, committed sexual harrassment on a grand scale, as governor and president, and lied to a grand jury. No mistaken memory. He sent his cabinet, the cabinet of the president of the United States, out to lie for him. There was no mistake, no confusion, no memory failures.

    If you ask should he have been impeached, I would say he should not have been but he dared the Congress and the courts to make something of it. All he had to say was that he had made a mistake and apologize. He chose not to do so. His words to Dick Morris were, “Well, we’ll just have to win.” He lost.

    Mike K (416363)

  34. ada-

    My point is not that there was no crime as much as the original accusation re Wilson and Plame was unsubstantiated, the question whether Libby had a fair trial before impartial jurors, and whether the prosecutor was misleading the jury and continues to mislead the public.

    Concerning Clinton, there was the charge of sexual harassment that was allowed to be brought against him while in office, and any pattern of inappropriate behavior would have been relevant, yes?

    Whether President Clinton did anything illegal or not is almost beside the point. If any other senior professional or executive in the US was found to be behaving with an intern in the same manner, what would be the odds that the person would keep their job? Could I get away with that with a 23 year old med student? Could Patterico with a law student? It just seems strange that the person in the most powerful and responsible position in the country could get away with a level of irresponsible conduct that the rest of us would have no chance of surviving.

    MD in Philly (3d3f72)

  35. Troll 31: contrary to popular opinion, adultery is illegal in DC, and in any event, sexual harassment is not “perfectly legal” anywhere. And no, there is no fellatio defense to otherwise unlawful conduct. Nice try, though.

    Xrlq (9b185a)

  36. Re: nk’s comment #32…

    The Republican?

    cthulhu (ccb965)

  37. They were both Democrats.

    nk (db0112)

  38. re: nk #37

    I rather assumed they were.

    I meant to be evocative of an old joke. For those who haven’t heard it before (probably told better), it concerns a propertied young man who knew three young ladies. As a test to see how suitable each might be as a bride, he gave each one $2000 for no special occasion.

    The first one came by the week afterward and said, “thanks for the $2000, I went shopping and bought myself beautiful dresses and shoes and enjoyed myself thoroughly, because I knew that’s what you would like — that I found pleasure and was beautiful for you.”

    The second one visited the family manse a week after her gift, and said, “I got some his-and-hers exercise gear, and bought some tickets to some events, because I thought that lovely gift should buy something we could use together.”

    The third one showed up a week after her gift, saying, “It was so sweet of you to give me $2000, but there’s not much I really want other than to see you happy….so I bought you that set of golf clubs you’ve been telling me that you admired.”

    So, which one did he marry? The one with the biggest t***s.

    In just the same way, who did Fitz prosecute — the guy who actually leaked? The reporters who lied like rugs? The partisan hack who spilled disinformation through the MSM?

    No, he went after the Republican.

    Unfortunately, such is my impression of the “justice” available today, that I’d take the answer to your hypothetical as dependent on just such reasoning.

    cthulhu (ccb965)

  39. Tom Maguire (#9):

    Your hypothetical is a pretty good one. I like it a lot. Your hypothetical is effective, but not because it illustrates a close legal question. It does not. If your hypothetical were asked in a law school criminal law examination, any law student who answered “No” would absolutely, positively get zero credit for that answer. It’s not a “maybe yes, maybe no” situation where someone gets partial credit. The only correct answer to your hypothetical is “Yes.”

    Your hypothetical is particularly effective for people trying to understand the Libby situation because it strips the political confusion away that covers that case. Thus, your hypothetical can be used to effectively split people into two groups: First, there are those who do understand what the crime of perjury is, all of whom will answer “Yes” to your hypothetical. Second, there are those who think that perjury can only happen if the questioning is about an actual crime that was committed, and that can be prosecuted with a resulting conviction, all of whom will answer “No” to your hypothetical.

    I’m guessing here, but my guess is that what may have led to some of this confusion is a poor understanding of the concept in perjury law of “materiality.” If the intentional false statement is on some matter that is not material to the subject of the testimony, then it may not be able to support a prosecution and conviction for perjury. Thus, for example, if Prof. Jones is asked before the Grand Jury, “How old are you,” and being vain, he lies and says he’s 39 even though he’s really 49, that’s a deliberate and intentional false statement, but it’s not on a material matter because that’s not something that relates closely to the reason for him giving sworn testimony to that grand jury. (His age doesn’t relate to anything that grand jury is trying to find out.) But some people blur this “materiality” requirement in their minds, and come away with the impression that to be “material,” the testimony must relate to a crime.

    Well, no, that’s not at all what “material” means.

    As a civil trial lawyer, I take testimony under oath day in and day out. Almost never in the twenty-six years in which I’ve been taking sworn testimony has the underlying subject of my questions been a crime — either actual or alleged.

    Instead, in the cases I handle, what’s material may be whether someone did or didn’t sign the contract, or whether the supermarket manager did or didn’t know that there was a crushed grape on the floor (resulting in a slip-and-fall). The witness who deliberately lies to me about the signature on the contract will be subject to prosecution and conviction for perjury if his testimony was in my lawsuit about that contract, even though he wasn’t being asked under oath about anything having to do with any crime. “Signatures” are material for purposes of my contracts lawsuit. By contrast, who saw the crushed grape is material for purposes of my slip-and-fall lawsuit. Whether the witnesses in my contract or slip-and-fall case are actually 39 or 49 isn’t any more material in those cases, though, than it would be material in the grand jury investigation of who killed the Dean.

    But if Prof. Jones was being examined before the grand jury that was convened to decide whether a crime had possibly been committed in connection with the death of the Dean, and Prof. Jones is a suspect, then yes, indeed — Prof. Jones’ whereabouts are very material to his testimony, and if he deliberately lies about them, that is indeed perjury, regardless of whether the Dean turns out to have been murdered or not. The materiality doesn’t depend on proof of the dean ever having been murdered by anyone. Rather, it has to do with the purposes of Prof. Jones having been put under oath for questioning before the grand jury.

    Likewise, Libby’s testimony about who told him what and when, and who he told what and when, was absolutely “material” to Mr. Fitzgerald’s grand jury’s investigations. “Materiality” doesn’t depend on whether there really was a crime committed, or whether an indictment is ever returned, or on whether a conviction is ever obtained. The grand jury is entitled to get truthful testimony on the subjects that are material to its investigation even when — as here — it never finds probable cause to believe an underlying crime has been convicted, and therefore never indicts anyone. That’s why both Libby and Prof. Jones can later be found guilty of having committed perjury.

    Anyway: Let’s argue sometimes on each other’s blogs, and not just on our fine mutual friend Patterico’s!

    Other readers: If you thought the correct answer to Tom’s hypothetical was “NO: Are you kidding – there was no crime!?!,” then you’re wasting bandwidth by even commenting on the Scooter Libby trial. You’re working on a completely flawed set of assumptions that guarantee that any conclusions you draw are going to be unfounded.

    Best regards from your old friend,

    – Beldar

    Beldar (24e978)

  40. One more thing: DRJ (#17 above) is definitely in the category of “those who understand what perjury is.” His answer presumes (as mine just above, #39, argues at great length) that Prof. Jones has indeed committed perjury, that there is ample evidence of it, and that Prof. Jones will be properly convicted. DRJ read your hypothetical differently than I did, though. DRJ read it to be asking about prosecutorial discretion. (I read it to be asking about whether perjury had or hadn’t been committed.)

    But let me add that I absolutely, positively agree with DRJ as well on the prosecutorial discretion reading. With the clean set of facts you propose, the prosecutor is almost certainly going to be able to get a conviction if he does indict. Is there some reason why he shouldn’t?

    The fact that the Dean wasn’t murdered is no good reason not to indict, for exactly the reason DRJ points out: You don’t let people off the hook for committing perjury just because it’s later established that the correct result of the grand jury proceedings would be a no-bill (non-indictment).

    For grand juries to perform their essential screening function in the criminal justice system, they must get accurate (non-perjured) testimony on all of the facts that are material to the possible crimes they’re investigating, without regard to whether that testimony tends to sway the grand jury toward believing that there is probable cause for an indictment, or that there is NOT probable cause. Indeed, for the protection of the innocent, it’s arguably more important that grand juries get absolutely truthful and accurate (non-perjurious) testimony in exactly those cases in which they end up returning no indictments!

    So DRJ is right: No prosecutor who understands the nature of the criminal justice system and the importance of witnesses giving truthful testimony — as compelled, in part, by the possibility of punishment through a perjury prosecution — would “walk on by” the clear case of perjury you’ve postulated.

    That’s what Fitzgerald was trying to say in his press conference for which you pilloried him on your blog. You point out that he may have “walked on by” a lot of other potential perjury indictments, and maybe so; obviously you and he disagree on how strong those potential indictments might have been. The Libby situation has many more players, and many more political and military ramifications, than your nice, clean hypothetical. And in the real world, prosecutorial discretion is much harder to exercise, and much more subject to second-guessing, than in your nice, clean hypothetical.

    But again, in your nice clean hypothetical, not only is it clear that Prof. Jones is guilty of perjury, but it is equally clear that any honest prosecutor would chose to prosecute him (notwithstanding the Dean’s natural death).

    Beldar (24e978)

  41. Why Libby can still have been guilty of perjury even though no one was prosecuted or convicted for leaking about Plame…

    My honored friend Patterico has privately chided me from time to time in the past for putting too much of my energies into writing comments on other blogs, whether his or someone else’s, when I ought to channel that energy into more posts on my own bl…

    BeldarBlog (72c8fd)

  42. You can listen to 25 of America’s top talk show hosts for free at the Internet Radio Network…

    Steve (28ce7c)

  43. As you’ve probably gathered, I can be a bit of a hard-ass on prosecutors. However, I’ve never been comfortable with the “why would I” reply to the question “did you do X.” A simple “no” would have sufficed, and if you instead respond with “why would I” you probably did, in my experience…..

    Lucius (28d602)

  44. Tom’s question above is a good one, but it presupposes that perjury was actually committed. If so, the prosecutor has every right to bring charges, and other considerations notwithstanding (i.e. budgets and other resources) should definitely do so. It might seem a waste to me, but I certainly couldn’t argue whether or it was justified.

    My own defense of Libby is not predicated on whether or not there was an underlying crime, but rather, I do not believe that it was proven beyond a reasonable doubt in court (not by a country mile in fact), nor do I believe he was given a fair opportunity to call certain witnesses, and thus was denied the opportunity to face his accusers.

    I would hope that those that believe in prosecuting based on principle, in Tom’s hypothetical example, also believe in the priniciples of proof beyond a reasonable doubt as well giving a defendant an ample oppotunity to face his accusers. Based on what I’ve seen in debates about both this case as well as others, I really am beginning to wonder.

    thirteen28 (1da714)

  45. Of course, everyone who is now saying “perjury is a crime even if there was no other crime” was 100% behind the effort to remove Clinton, right?

    I mean, Clinton’s perjury was

    1) a felony,

    2) in defiance of his professional responsibilities as a lawyer,

    3) in direct violation of his oath of office to faithfully execute the laws, and

    4) committed to avoid the consequences of a law he himself signed (courts had made sexual history inadmissible in sexual harassment cases; Clinton’s signature on the Violence Against Women Act reversed that).

    So Clinton managed to commit a felony, a violation of his professional code of ethics, a violation of his constitutionally-defined responsibilities, and hypocrisy in a single act. If Libby should go to jail, at the very least Clinton should have been removed from office, right?

    Warmongering Lunatic (531a5b)

  46. W.L.,

    You betcha. I was 100% behind that effort.

    Patterico (04465c)

  47. If you thought the correct answer to Tom’s hypothetical was “NO: Are you kidding – there was no crime!?!,” then you’re wasting bandwidth by even commenting on the Scooter Libby trial.

    Wow. If someone even thought that they’re so stupid they are wasting bandwidth even commenting.

    You know, I bet I have asked the question about materiality at least 5 times over the last 4 years on blogs (its been discussed repeatedly on JOM) that are covering this case, blogs heavily attended by lawyer types, and I never saw an answer that actually explained materiality so that lay people could understsand it the way you did in your post Beldar.

    Fortunately Patterico welcomes an open discussion even with people that disagree with him, at least as long as they don’t attack his family or call him a liar. That’s apparently how he likes to spend his bandwidth. I’m certainly glad of that as it gives me an opportunity to learn about a subject that interests me though it is outside my baliwick.

    Dwilkers (4f4ebf)

  48. 46: you are just another example of the “Clinton got away with it, so I want Republicans to get away with it also”. You care more about your football team winning than about the rules being followed. I don’t want you next to me in a foxhole or a POW camp. You are stupid or weak. Maybe both.

    TCO (9c1776)

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