March 7, 2007

Why Was Libby Convicted? Probably Because He's Guilty

Hatched by Dafydd

Reading the New York Times story on the guilty verdict against I. Lewis "Scooter" Libby, I have to say I find the jury's verdict convincing: I believe that Libby did in fact lie to the grand jury and others, that he did so to try to deflect danger from himself (needlessly, as it turns out), and that he was, therefore, guilty as charged.

Were I sitting on the jury, I think that is how I would have voted -- unless there is a whole bunch of exculpatory evidence that nobody is telling us, which I rather doubt.

Here is one of the strongest arguments: One of the major charges against Libby was that he told the grand jury that he did not know that Joe Wilson's wife Valerie was in the CIA until he was told so by TV personality Tim Russert, of Beat the Press fame. Later, Libby testified again, this time saying Vice President Dick Cheney had told him much earlier; but he "forgot" all about it:

One particularly important focus, Mr. Collins said, was testimony about a conversation Mr. Libby had with Tim Russert, the Washington bureau chief of NBC News. Mr. Libby had said Mr. Russert told him about Valerie Wilson’s job with the Central Intelligence Agency around July 10 or July 11, 2003.

Although Mr. Libby acknowledged that he had heard earlier about Ms. Wilson from his boss, Vice President Dick Cheney, he said he had forgotten about it until the July exchange with Mr. Russert, when “it was like hearing it for the first time.”

There was a problem with that story, however: As it happens, eight separate witnesses, many in the administration, testified about conversations they had with Libby... several of which predated his interview with Russert. In those conversations, either others told Libby or Libby told others about Valerie Plame (though he may not have known her actual last name).

But [jurors Rosemary Russo and Denis Collins] said it was just too much of a leap for them to think that Mr. Libby’s contradictory accounts were the result of a bad memory.

“There was no wiggle room about it, unless you think all these people who work for the administration were lying,” said Mr. Collins, who emerged as a de facto spokesman for the 11-member jury and later discussed the verdict in a phone interview.

Once they decided that one of the major charges was true, that Libby did indeed lie to the grand jury, his believability dropped. Thereafter, his explanation of forgetfulness (his only defense) was simply no longer credible. The jury believed the alternative explanation: that Libby lied.

Collins, by the way, is the guy who called Libby a "fall guy" and demanded to know why Karl Rove and other members of the administation weren't on trial for revealing Plame's status. Collins is a registered Democrat who thinks that somebody should be punished for the Iraq invasion -- but who agrees with the rest of the jury that this trial was not about Iraq:

There also was no discussion about the subtext of the trial — the decision to go to war against Iraq.

“This was not a question about who can we punish for going to Iraq,” said Mr. Collins, 57, a registered Democrat. “We just never allowed ourselves to go there, and I am not going to go there now.”

(The telling detail is Collins' diction: not "whether we can punish someone," but "who can we punish.")

Despite his obvious anti-Bush bias, Collins nevertheless believed that the administration witnesses were telling the truth about their pre-Russert conversations with Libby about Wilson's wife and the CIA.

I do not think it reasonable for President Bush to conclude that Libby actually forgot that he knew about Plame and actually told people; logically, the president must conclude that Libby really did lie and really did try to obstruct Fitzgerald's prove. Thus, as far as issuing a pardon goes, the question reduces to this: does the president believe that it's ever legitimate to prosecute a witness for perjury -- when the underlying issue is determined not to be a crime, as evidenced by the fact that, according to the special persecutor, nobody has been or will be charged for outing Valerie Plame.

If Bush believes that it is ipso facto wrong to prosecute for perjury in a case where there is no underlying crime, he can pardon Libby; but this is a radical step that would open up a whole 'nother kettle of worms: Shouldn't he then also pardon Martha Stewart? How about others who are convicted of the same crime? We could be talking about hundreds, even thousands of convicts clamoring for a pardon on the same grounds as Libby.

If Bush pardons them all, he would basically spend the remainder of his term doing so. But if he ignores the others, he opens himself to very appropriate charges of political cronyism: It's okay if Scooter Libby does it, but the rest of the public can drop dead.

I suspect that in the end, Bush will not pardon Lewis Libby. Libby may or may not ultimately have to serve time; but his exoneration, if any, will have to come from the judicial system itself -- not from the president of the United States.

Hatched by Dafydd on this day, March 7, 2007, at the time of 3:17 PM

Trackback Pings

TrackBack URL for this hissing:

Listed below are links to weblogs that reference Why Was Libby Convicted? Probably Because He's Guilty:

» In Stardom, Patterico Forgets the Little People from Big Lizards
...And in the blogosphere, there is nobody littler than Big Lizards! Once again, Patterico has overlooked this, ah, cozy little blog: Ever since he started regularly hitting 8,000+ visitors per day, he never calls, he never writes. Would it kill... [Read More]

Tracked on March 8, 2007 6:08 AM


The following hissed in response by: Big D


Are you kidding here? Sorry, but I believe that people should not be prosecuted for perjury when the underlying crime itself is not prosecuted. There is substantial case law that supports exactly this belief.

Let's do a hypothetical. Suppose Prosecutor X is firmly convinced that his neighbor, Mr. G, is in the mafia. But of course, since Mr. G is wholly innocent, has no evidence to prove his mafia connections.

Prosecutor X hatches a scheme. He indicts Mr. H, a good friend of Mr. G, on money laundering. He then hauls both before the grand jury to testify. No attorneys for the defense present.

He grills Mr. G for hours on his association with Mr. H. Convinces him that his mere association with Mr. H puts him in criminal jeopardy. Calls him back several times. Brings in several additional witnesses. Mr. G gets nervous, he contradicts himself. Finally he says "Mr. H, I...uh...barely knew the guy!...heh..." Bingo!

The prosecutor then drops the indictment against Mr. H (who was wholly innocent anyway) and indicts Mr. G for perjury.

Isan't this exactly what we have just observed?

By the by - I think Libby probably lied. BUT - when he did what he did - told reporters about Valarie Plame, I don't think he thought it was a crime to do so. And in fact (based on the indictments eventually handed down) it wasn't a crime. But the prosecutor went to great lengths to convince him (and everyone else) that a crime had been committed. So Libby tried to worm his way out of the mess, and got himself indicted for perjury for his troubles.

The whole thing sickens me.

The above hissed in response by: Big D [TypeKey Profile Page] at March 7, 2007 4:01 PM

The following hissed in response by: Dafydd ab Hugh

Big D:

Are you kidding here? Sorry, but I believe that people should not be prosecuted for perjury when the underlying crime itself is not prosecuted. There is substantial case law that supports exactly this belief.

Thus, you say that the judge did not correctly apply the law. If that is true, then Libby's conviction will be reversed upon appeal, and he won't need a pardon -- will he?

If it isn't reversed, then I suggest you have misread the law. If you think it should be the law, then change the law for everyone -- not just for Lewis Libby.

We had enough of presidential pardons being issued for personal reasons or for payback with the last president.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at March 7, 2007 4:20 PM

The following hissed in response by: Dick E


You are probably correct about the legal appropriateness of Libby’s conviction.

But Big D’s point is also valid, though it may have been somewhat obscured by his unfortunate use of the term “case law”. There obviously is no case law concerning perjury prosecutions that were not brought in cases that did not result in prosecution for the underlying crime. All you have is a list of perjury cases that prosecutors chose not to pursue. That does not amount to case law.

I don’t think Big D would claim that the judge in Libby’s case ignored proper precedent. If he has a bone to pick it is with Fitzgerald.

The above hissed in response by: Dick E [TypeKey Profile Page] at March 7, 2007 5:12 PM

The following hissed in response by: Big D

The pardon is a presidential power that exists for a purpose - to put a brake on the judicial system when it creates a gross injustice. Abuse by Clinton does not negate its value to other Presidents.

You say "all those others". I can't recall a case remotely like this one. There is not one iota of evidence that any law other than perjury was even broken here. The initial "crime" demonstrably did not even occur. Unless you are arguing that Plame really was a super secret agent?

Okay, other cases I know someone will bring up:

Martha Stewart - I understand that a crime did demonstrably occur, but under the various plea agreements she was only charged with perjury. This was aprt of a plea deal. Libby was not charged with anyhting but perjury. In this case perjury prosecution was entirely justified.

Clinton - He was sued in court. All the evidence suggests that he did indeed sexually harass Paul Jones. The case was dismissed by one judge solely because Jones had failed to show damages. On appeal it looked like the court would rule in her favor, so Clinton quickly settled for $800 k and some change. So, his perjury was designed to hide his crime from prosecutors. So...yeah, the law worked as it should. Or at least it would have if he had been impeached.

I believe that the judge, the jury, and the prosecutors did not correctly apply the law. This is based on my admittedly tiny legal knowledge, but heck, when I can type the words "perjury trap" into google and get a couple of thousand legal citations, all supporting Libby's case, I sense something is very wrong.

How about this - in the scenario above, should the conviction of Mr. G stand? I mean, he did perjure himself. He was found legally guilty by a jury of his peers.

What if Mr. G was a largely disliked Republican politician? Should we expect justice on appeal?

The above hissed in response by: Big D [TypeKey Profile Page] at March 7, 2007 5:50 PM

The following hissed in response by: DrMalaka


I think you changed my mind, although he should get a Sandy Berger sentence. If he gets a prison sentence then he should be pardoned. Thanks.

What was absolutely crazy in that article was this:

"Collins, by the way, is the guy who called Libby a "fall guy" and demanded to know why Karl Rove and other members of the administation weren't on trial for revealing Plame's status."

Are you telling me that this guy Collins spent this entire time listening to this trial and he did not understand that the trial was about perjury/obstruction of justice. There was no criminal leak. So why would Rove or "other members of the adminstration" be up on trial? Rove was not on trial becuase no crime ever happened.

A month on the same subject and he still can not grasp it. How can someone this thick get on a jury?

The above hissed in response by: DrMalaka [TypeKey Profile Page] at March 7, 2007 6:31 PM

The following hissed in response by: Dafydd ab Hugh

Big D:

Perjury trap? Not a chance. Fitzgerald was trying to obtain information about a possible criminal violation; he did not know it would turn out not to be a crime until he investigated it.

A perjury trap only occurs when the perjury was procured illegally. Department of Justice Criminal Resource Manual, Perjury Trap:

1756 Perjury Cases -- Special Problems and Defenses -- Perjury Trap

The perjury trap is a form of entrapment defense, and thus must be affirmatively proven by the defendant. The defense is rarely proven, even though the claim is relatively common when grand jury testimony gives rise to perjury charges. See Gershman, The Perjury Trap, 129 U. Pa. L. Rev. 624 (1981). The defense requires that the defendant show the false answer was illegally procured by the government. Thus, when the grand jury is attempting to obtain useful information in furtherance of its investigation, the perjury trap doctrine does not apply. United States v. Brown, 49 F.3d 1162, 1168 (6th Cir. 1995), cert. denied, 116 S.Ct. 377 (1995); United States v. Chen, 933 F.2d 793, 797 (9th Cir. 1991).

PRACTICE TIP: The United States Supreme Court has ruled that there is also no duty to warn the witness of the consequences of committing perjury. United States v. Mandujano, 425 U.S. 564 (1976). Department guidelines, however, require prosecutors to give warnings resembling Miranda warnings to subjects or targets of grand jury investigations and to advise putative defendants of their status as such. See USAM 9-11.151. When the defendant claims a perjury trap, those warnings demonstrate that the prosecutor did not call the witness to induce perjury, but rather to seek truthful testimony. United States v. Williams, 874 F.2d 968, 974-75 (5th Cir. 1989). Failure to give those warnings does not constitute grounds for dismissal of an indictment. United States v. Washington, 431 U.S. 181 (1977).

Libby was not even the main fish Fitzgerald wanted; he wanted Rove's scalp, maybe even Cheney's. He called Libby hoping he would implicate somebody else... so there was nothing illegal about the way he elicited perjury from Libby.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at March 7, 2007 6:40 PM

The following hissed in response by: Dick E

Dafydd and Big D-

Once again we have a problem with semantics.

Dafydd, I am sure you have properly quoted the DOJ’s definition of the “perjury trap” defense in a trial where the defendant is, in fact, charged with perjury. That, of course, is not the issue at hand.

Big D used the term “perjury trap” in the more colloquial sense that, while the prosecutor may not have intentionally lured the defendant into committing perjury, the defendant nevertheless felt “trapped”. Not necessarily trapped by the prosecutor, but by the circumstances surrounding the testimony that gave rise to perjury.

I don’t defend or condone the behavior, mind you -- as far as I’m concerned, perjury is wrong, stupid, and, of course, illegal. But, once again, it is very rarely prosecuted in cases where the underlying crime is not prosecuted. People feel “trapped” in the rare instances where it is prosecuted. (Their best defense would be not to have committed perjury in the first place, but …)

The above hissed in response by: Dick E [TypeKey Profile Page] at March 7, 2007 7:40 PM

The following hissed in response by: nk

The federal perjury law has a requirement of materiality. Libby's lies were material ... "to try to deflect danger from himself (needlessly, as it turns out)" ...?

The above hissed in response by: nk [TypeKey Profile Page] at March 7, 2007 7:41 PM

The following hissed in response by: RattlerGator

Dafydd, I believe you're being overly anal here. As was Patrick Fitzgerald.

This was a political question, pure and simple.

And please spare me the technical qualification that goes something like this: In United States law, a ruling that something is a political question is a statement by a federal court, declining to rule in a case because: 1) the U.S. Constitution has committed decisionmaking on this subject to another branch of the federal government; 2) there are inadequate standards for the court to apply; or 3) the court feels it is prudent not to interfere.

Fine, fine, fine. In the case of a Special Prosecutor, *this* special prosecutor, he functioned as prosecutor, judge and jury and scripted this affair out after -- AFTER -- being made aware that the substantive "crime," if there was one, was committed by Richard Armitage. This is how he did it:

1. He was the "functional equivalent of the Attorney General," and so was expressly answerable to no one at DoJ.

2. As such, he could and exempt himself from DoJ guidelines that he found irksome.

3. He had his target [Libby, who he wanted to flip so he could go after bigger prey] under oath before the GJ.

4. The target thinks this investigation is to uncover a substantive crime.

5. The target thinks [knows] he is innocent [of the "crime" supposedly being investigated] and has nothing to fear from the truth.

6. The target has been told by the President of the United States that he must not assert his rights under the Constitution of the United States.

7. Fitz knows that the FBI can be relied upon to write up their interviews in a prejudicial manner [did any of you follow just how outrageous all of that was?].

8. Fitz knows the target can't see those interviews until he's indicted.

9. Fitz knows the GJ will hear testimony from the FBI that the target won't hear and so won't be able to respond to.

10. Fitz knows he's after process violations and is simply trying to get Libby to say something that can be twisted when Fitz speaks to the GJ--without the target present to rebut.
[slightly paraphrased from a comment by "azaghal," Feb. 5, 2007, 3:23 p.m., JustOneMinute blog]

Yeah, Dafydd, that's a perjury trap and yeah, this was a political question that Fitzgerald should have had the good sense to leave the hell alone.

The above hissed in response by: RattlerGator [TypeKey Profile Page] at March 7, 2007 8:14 PM

The following hissed in response by: Stu707

Daffyd's analysis is spot on. Libby lied.

However, the leak that led to Fitzgerald's appointment was the Novak column and Fitzgerald learned early in his investigation that the leaker was Richard Armitage. Fitz not only did not prosecute Armitage, he gave Armitage immunity. There was no violation of the Intelligence Identity Protection Act.

I'd say that adds up to Sandy Berger/Martha Stewart type sentence if Libby's appeal fails. If Libby gets anything more than a few months in jail, I hope Bush will commute his sentence, not pardon him.

The above hissed in response by: Stu707 [TypeKey Profile Page] at March 7, 2007 8:41 PM

The following hissed in response by: nk

Martha Stewart, Scooter Libby and Judith Miller prove to me that the best strategy if called as a witness by a prosecutor is to simply refuse to talk. Even if you are jailed for contempt of court as Judith Miller was, you will be freed in six months, or when the grand jury is dissolved, and there will be no conviction or other disability.

The above hissed in response by: nk [TypeKey Profile Page] at March 7, 2007 9:26 PM

The following hissed in response by: Dick E



Or, as I was advised by counsel before a deposition, say "I don't recall". (Only if it's true, of course.)

Only problem is if opposing counsel knows you know. Then it's either tell the truth or pull a Judith Miller.

The above hissed in response by: Dick E [TypeKey Profile Page] at March 7, 2007 10:01 PM

The following hissed in response by: Davod

Let us not forget that the FBI knew about Armitage even before DOJ decided to use a "special Prosecuter". The question needs to be asked why DOJ felt the need to proceed further.

Did the FBI screw up and not tell DOJ about Armitage?

The above hissed in response by: Davod [TypeKey Profile Page] at March 8, 2007 3:19 AM

The following hissed in response by: wtanksleyjr

I find it interesting how often it's repeated that the jury "felt sorry" for Libby as being the fall guy for Bush/Cheney. I think there's room for a good lawyer to appeal there. The defense attorney was lousy, because he founded his case on "poor Libby was a fall guy" (that was his opening statement), and then he didn't present any evidence for that.

In essence, I think it could be argued that the jury convicted Libby based on their perceptions of someone else's guilt -- perceptions that were never brought before the court.

Ugh, what a bad lawyer.

With that said, I find your argument persuasive, Dafydd.

The above hissed in response by: wtanksleyjr [TypeKey Profile Page] at March 8, 2007 8:34 AM

The following hissed in response by: Big D

RattlerGator is correct - and even his lengthy post doesn't cover all the abuses performed in this case.

The entire purpose of this exercise was to somehow "unravel" the Bush administration a la Watergate. Libby was supposed to flip and start spewing the dirty secrets of the Bush administration, other crimes that could be prosecuted, allowing eventually for impeachment. They are still hoping for that.

Remember the left, rubbing their hands gleefully, waiting for "Fitzmas" to happen? This was scripted and planned by the Democrats solely for political purposes. A way to win the 2004 election by other means. Just look at the incredibly misleading media coverage the Plame thing has gotten from the start. They all know the score, but it is too important to somehow get Bush.

How do you reconcile the facts that Fitz knew who committed the "crime" of outing Plame early in his investigation, knew that what had occurred was not even a crime, but continued "investigating" anyway? The only purpose of continuing the investigation after he knew Armitage was the source of the leak was to get someone to commit perjury or flip.

The defense was weak because they thought (incorrectly) that there was no conceivable way Libby could be found guilty under the law. In such a case a smart defense attorney will limit the testimony of his client and witnesses, lest they create more trouble for him.

The above hissed in response by: Big D [TypeKey Profile Page] at March 8, 2007 9:55 AM

Post a comment

Thanks for hissing in, . Now you can slither in with a comment, o wise. (sign out)

(If you haven't hissed a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Hang loose; don't shed your skin!)

Remember me unto the end of days?

© 2005-2009 by Dafydd ab Hugh - All Rights Reserved