Big Lizards:Blog:Entry “Despite Libby's Guilt, Prosecution Was Outrageous”

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March 8, 2007

Despite Libby's Guilt, Prosecution Was Outrageous

Hatched by Dafydd

I believe I. Lewis "Scooter" Libby was rightly found guilty by the jury a couple of days ago. But that doesn't mean the entire lengthy investigation, grand-jury antics, and eventual criminal charges filed by Special Persecutor Patrick Fitzgerald had even the slightest bit of merit. In fact, I agree with Ann Coulter's assessment of what actually happened:

It was not a crime to reveal Valerie Plame's name because she was not a covert agent. If it had been a crime, Special Prosecutor Patrick Fitzgerald could have wrapped up his investigation with an indictment of the State Department's Richard Armitage on the first day of his investigation since it was Armitage who revealed her name and Fitzgerald knew it.

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.

In this case, despite the actual guilt of Libby (that's my belief; Coulter believes he was actually innocent), justice was definitely not served: the crime would not even have occurred had Fitzgerald done his job properly... which in this case means he should have done the following:

Investigated the leak;

Discovered that Plame was not a covered person under the Intelligence Identities Protection Act;

Discovered that the leaker was State Department aide Richard Armitage, an outspoken opponent of the war;

Determined that Armitage leaked the information as a juicy tidbit of gossip, not by any political calculation or at the behest of Karl Rove, Dick Cheney, or George W. Bush;

Realized that it was the political fabrications and lies of Ambassador Joseph Wilson that forced the White House to go into overtime trying to rebut his libelous claims.

All of the foregoing Fitzgerald did; but based upon those results -- which he had very early in the investigation -- he had one more responsibility:

He should then have simply closed the investigation and dismissed the grand jury (or not even convene one in the first place), with a single curt statement: "Our office has found that no crime was committed, there was no conspiracy to out Mrs. Wilson, and there is no point to further interviews, subpoenas, or testimony.

Alas, like every other special prosecutor before him, after spending a few million dollars ramping up the prosecution in the first place, Fitzgerald found he simply could not stop gnawing on that hatchet. He couldn't just walk away, because people might think he was covering up for the president... or worse, they might think he was an incompetent prosecutor.

Most people tend to see the law as a bludgeon to achieve "cosmic justice." A very large percentage of people who believe Bush "lied us into war" likely saw Fitzgerald as the crusading lawyer who was going to "bring down this criminal regime" by indicting all the top people for... well, for something or other. Had he failed to indict anyone for anything, the hysteria would have probably exceeded the furor surrounding the 2000 vote.

Therefore, Fitzgerald went hell-bent for leather to get at least one notch on his belt: somebody had to be sent up the river. To paraphrase Pontius Pilate, Fitzgerald needed a crime.

Stupidly, and despite clear instructions from the president to cooperate and tell the truth, Libby gave the special prosecutor what he desperately wanted. It would have been easy enough not to; every other person Fitzgerald questioned managed to avoid lying. Libby could simply have invoked the Fifth Amendment; or for that matter, he could simply have told the truth, as his boss, Dick Cheney, and as Karl Rove did.

Nobody told him to lie; his lawyers did not present any evidence that anyone ordered him to lie, or even suggested that he lie: Although his attorneys promised to the jury that they would present such evidence, they broke that promise; the claim that he was a "sacrificial lamb" appeared only in their opening statement (and were I the judge, when they rested their case, I would seriously have considered a contempt of court citation -- or at least required them to explain why the hell they made such a serious charge in their opening statement if they had no evidence to back it up at trial).

Therefore, the following two statements are simultaneously true:

Lewis Libby was properly convicted of perjury and obstruction because he did, in fact, say two wildly different and contradictory things under oath, and the jury simply did not believe he had a brain seizure;

Lewis Libby would never have been put in the position where he panicked and lied if Patrick Fitzgerald had acted as a D.A., not as a "special persecutor."

What do I mean "acting like a D.A.?" Take Patterico, as an example (he's the only assistant D.A. I know personally). When evidence of a possible crime is forwarded to him by the police or by some other means, he does not go into the case determined to find somebody, anybody, to put in prison. Instead, he goes into the case with the first intent to see whether, in his expert opinion, any crime was even committed.

Just because the cops arrest someone doesn't automatically mean a crime was committed; and it certainly doesn't mean the detainee is guilty.

If Patterico determines that no crime was committed, then I would presume that marks the end of his investigation. He writes some sort of report to his boss, and he moves on to the next case. God knows, I'm sure he (and every other prosecutor) has enough cases on his plate that he's overjoyed when he can legitimately and in good conscience drop one!

He certainly does not begin interviewing hundreds of people only peripherally connected to the case (after he has determined no crime was committed), threatening dire consequences and hoping to frighten one of the interviewees enough that he perjures himself.

But that is exactly what a special prosecutor does routinely. And that is why I completely oppose the very existence of special prosecutors -- except in cases where it is the Justice Department itself that is being investigated for corruption... for example, if the Attorney General of the United States is suspected of accepting bribes. (Obviously, no one can be trusted to investigate himself.)

In this case, there was no reason why Alberto Gonzales could not have taken charge of this investigation; nobody had accused him of leaking Valerie Plame's name.

Fitzgerald came perilously close to having manufacturing the crime he later prosecuted. He didn't quite cross that line, because nobody forced Libby to lie; it wasn't legal entrapment. But Fitzgerald certainly realized early on that there was no underlying criminal conspiracy; yet he kept the process going, knowing there was a better than even chance that, if he interviewed enough people, one of them would do something stupid, retroactively "justifying" the original investigation.

It is that, rather than Libby's little black lie, that is the true "obstruction of justice," in a moral not a legal sense. Yet even so, I don't see any grounds for the president to pardon Libby: The purpose of the pardon is not to rescue idiots from themselves.

The president advised Libby to tell the truth; and the president, like every other boss, is, to quote Larry Niven, "not responsible for advice not taken."

Hatched by Dafydd on this day, March 8, 2007, at the time of 3:28 PM

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Comments

The following hissed in response by: Stephen Macklin

So in fact Scooter was a scapegoat. Not a scapegoat for the administration, but for Fitzgerald.

The above hissed in response by: Stephen Macklin at March 8, 2007 4:16 PM

The following hissed in response by: KarmiCommunist

Fitzgerald knew early on that no crime had been committed, but was probably distracted from that rather simple fact by a constant din from MSM...a din forced and supported by America’s fanatical Socialists. What’s that quote?

"There's nothing so absurd that if you repeat it often enough, people will believe it." William James

America’s fanatical Socialists *LOVED* being bogged down in Vietnam, still *LOVE* the power that came to them back then. Example: Dan Rather figured that he still had enough power to spread a lie, even if the so-called evidence was a forgery...so to speak of Dan's punishment was just getting 'fired'.

The line between fanatics, Communists/Socialists, and Fascists cannot be seen...under current (“existing at the present time”) microscopes. Fitzgerald basically 'tripped' on that line.

Guilty?!? Name one human who isn't guilty of something. In Nazi Germany, one was guilty if they were a Jew, a homo, a Gypsy, etc. In Islam countries, being a Girl or Woman seems to be a sign of some sort of guilt, unless wearing a bag makes sense?!?

Laws...'Guilt'...crime...etc. then go through a manmade Punishment process that sOmEhOw doles out the correct Punishment for ‘Da crime.

Anyway, at some point, Fitzgerald's prosecutorial past catches up with him, and he looks for a Rat...so to speak.

KårmiÇømmünîs†

The above hissed in response by: KarmiCommunist at March 8, 2007 5:19 PM

The following hissed in response by: charlotte

Could it have been personal, in addition to "mission momentum" and the salaries, press and prestige of being a SP? From the WSJ (sorry, no link):

"As it happens, Messrs. Fitzgerald and Libby had crossed legal paths before. Before he joined the Bush Administration, Mr. Libby had, for a number of years in the 1980s and 1990s, been a lawyer for Marc Rich. Mr. Rich is the oil trader and financier who fled to Switzerland in 1983, just ahead of his indictment for tax-evasion by the U.S. Attorney for the Southern District of New York. Bill Clinton pardoned Mr. Rich in 2001, and so the feds never did get their man. The pardon so infuriated Justice lawyers who had worked on the case that the Southern District promptly launched an investigation into whether the pardon had been "proper." One former prosecutor we spoke to described the Rich case as "the single most rancorous case in the history of the Southern District."

"Two of the prosecutors who worked on the Rich case over the years were none other than Mr. Fitzgerald and James Comey, who while Deputy Attorney General appointed Mr. Fitzgerald to investigate the Plame leak. Mr. Fitzgerald worked in the Southern District for five years starting in 1988, at the same time that Mr. Libby was developing a legal theory of Mr. Rich's innocence in a bid to get the charges dropped. The prosecutors never did accept the argument, but Leonard Garment, who brought Mr. Libby onto the case in 1985, says that he believes Mr. Libby's legal work helped set the stage for Mr. Rich's eventual pardon.”

The above hissed in response by: charlotte at March 8, 2007 8:07 PM

The following hissed in response by: Dick E

Dafydd-

You’re absolutely right. Special prosecutors need to find a prosecutable offense -- any prosecutable offense -- to justify their existence.

And, in theory, you’re also correct that investigating the DOJ is the only time such a sledge hammer should be wielded.

So let’s say the Attorney General had been tasked with the investigation into Plamegate, and he found no wrongdoing. Imagine the sturm und drang, the accusations of cover-up from the moonbats -- even if Gonzales had included members of the (dis)loyal opposition in the investigative team. The drive-by media would have spun the story into a major scandal. The whole ordeal would have been over many months before the 2006 elections, and the Republicans would probably have lost both houses. Imagine!

That’s why, unfortunately, a special prosecutor is used for this kind of case. It’s certainly not needed for legal reasons -- only political ones.

The above hissed in response by: Dick E at March 8, 2007 10:03 PM

The following hissed in response by: Dafydd ab Hugh

Dick E:

Unless I'm misremembering, after Ken Starr was appointed during Clinton's first term (August 1994), Attorney General Janet Reno refused to appoint any more independent counsels (as they were then called). She "investigated" all subsequent Clinton scandals herself.

While Republicans said it was a coverup, the American people never bought into any of it.

I know the special counsel was called into the Plame name blame game for politcal reasons; I am unconvinced that the politics of having the AG investigate instead would have been all that bad.

Dafydd

The above hissed in response by: Dafydd ab Hugh at March 8, 2007 10:59 PM

The following hissed in response by: hunter

Fitzgerald crossed the line completely.
And I doubt if Libby actually lied at all or was convicted in a way that would be sustainable on appeal. More than one juror has made statements that shows they were not judging the accusations but rather the politics of the case.

The above hissed in response by: hunter at March 9, 2007 3:31 AM

The following hissed in response by: Big D

Dafydd,

This was the post I'd hoped you posted before you posted the Libby is a liar post. Er. Or something to that effect.

I've not much to add, other than the media, left wing, and perhaps Fitz hoped this was a Watergate ordeal.

Watergate started as a minor criminal break-in. During investigation of that crime, Dean was flipped by being made to think he would be a scapegoat. A political crisis ensued, and Nixon was forced from the White House. Remember, Nixon didn't resign because the the burglary, it was the events of the subsequent investigation and cover-up that caused his resignation.

This is exactly why Fitz kept the investigation going. He has hoped from day one to "flip" Libby (a la Dean), get him to testify to other wrong-doings that have little to do with the Plame affair.

As the media and left relive their Vietnam fantasies in Iraq, so do they relive their Watergate wet dreams over Plame.

Which really goes to illustrate the baby boomer's narcissistic assumption that it their experiences define and shape the world to the exclusion of all others. It is like watching a 50 year old man talk about being the high scool quarterback. Tiresome and kinda sad.

The above hissed in response by: Big D at March 9, 2007 9:37 AM

The following hissed in response by: Dick E

Dafydd-

While Republicans said it was a coverup, the American people never bought into any of it.

Do you really think reaction from Democrats and from the public at large would have been the same had Alberto Gonzales done what you describe Janet Reno as doing? I sure don’t.

If Gonzales were to throw that kind of chum in the water, the moonbats and the MSM would go wild, and a large part of the population (the part that gets most of its news from the MSM) would follow suit. After all, Katie Couric said it, so it must be true. :-o

Republican reaction to Reno’s actions was typical: Express dismay but, in the absence of real evidence of malfeasance or a coverup, let it go. Would the Dummycrats be so restrained? Hah! (What a superior race are we.)

There really is a difference between the sophisticated, genteel Republicans and the stark raving Democrats. (Did you see the video on Powerline showing the confrontation between Rep. Obey and some liberals who ambushed him in a hallway? These guys are Obey’s allies.)

(Gag, choke. Whew! My tongue got stuck in my cheek for a while. I’m fine now.)

;-)

The above hissed in response by: Dick E at March 9, 2007 9:58 PM

The following hissed in response by: Don

ALright, sent Libby to jail. But in the cell next door lets put Fitzgerald - for abusing his power.

Libby was up in front of a kangeroo court run by an enemy of his. A kangaroo court which threatened to bankrupt him with legal fees unless he could get out from under quickly. He cut some corners - as anyone will who is confronted with fighting an unlimited government-funded legal budget with the resources of a private citizen.

Why was Libby put in this position? In an effort to make him hand over his boss, VP Cheney. Had Libby perjured himself to implicate Cheney he would not be headed to jail a bankrupt right now.

The above hissed in response by: Don at March 10, 2007 3:56 PM

The following hissed in response by: Badge 2211

The one thing that irks me in the whole charade is the forgotten heroine.

Whatever her faults, Fitzgerald's putting Judy Miller in a Federal lockup for 85 days and she wouldn't cave until Libby gave her license to testify about their conversations.

Meanwhile, every man involved, from Fitzgerald, Mr. Potato Head, Ari Fleischer, Marc Cooper, Pinch Sulzberger, the super-tough ex-SEAL Richard Armitage (who sang like Yentl), etc. has shamed himself to a basest level.

The above hissed in response by: Badge 2211 at March 10, 2007 6:27 PM