Tuesday, March 06, 2007
The Libby verdict
I've blogged a whole bunch on the subject of various journalists, especially Judith Miller, who've claimed in connection with the Plame affair that they were entitled to an absolute privilege against testifying about their communications with confidential sources. But comparatively speaking, I have not written very much about the underlying investigation, and I don't think I've written anything at all about the Libby trial itself. That's been deliberate on my part. Others in the blogosphere and the mainstream media have provided an incredible amount of detailed reporting and thoughtful analysis during the trial. I simply didn't feel that I had anything particularly wise or important or clever to add.
That's probably still true, but I've gotten a few emails encouraging me to get back to regular blogging in general, and asking me to comment on the Libby case in particular. So now that there's a verdict, for what it's worth, and as a start:
Way back in October of 2003, I wrote at considerable length in favor of the appointment of a special counsel, explaining in the process the difference between "special counsel" and "independent counsel." Back then, of course, before Patrick Fitzgerald had been appointed (I was suggesting Rudy Giuliani for that role, in fact), all of the focus was on whether there was reason to believe that a crime had been committed in the "outing" of Valerie Plame. (I took no firm position on that subject then, although I did say that "my gut hunch continues to tell me that there is less to this whole affair than meets the eye.") No one could know back then that the only eventual indictments would focus on statements and events from the investigation process. Nevertheless, the paragraph from that post that jumps out at me today is this one (italics in original):
Even if you think (as I do) that Ambassador Wilson is a bozo, you probably hope (as I do) that his wife and any agents she may have run or contacts she may have made are all safe from retribution by enemies of the US. But the crime — if one has been committed — was against the people of the United States. There would be genuine value to the republic in reassuring its public that possible spy-outers are taken very, very seriously during wartime, and that political connections cannot shelter any such criminals. Dubya's administration has always had an anti-leak passion that dates back to his personal fury at leakers who undercut the GHW Bush Administration for fun and profit during 1989-1993. A nationally televised perp-walk would be a very good thing for the war effort if there are indeed grounds to believe — after a more detailed investigation than can be done in the popular press and the blogosphere — that a crime has in fact been committed here. We can warm up the cell in between Jonathan Pollard and Aldrich Ames, perhaps.
In retrospect, I was obviously naïve about how much purposeful and authorized leaking was being done by high officials within the Bush-43 administration. And the Libby conviction today ends up not relating very much at all to anything regarding the global war on radical Islamic terrorists. Nevertheless, I'll stand by the central theme of that paragraph: There is indeed value to the republic in reassuring its public that even such crimes as perjury and obstruction of justice, during wartime or not, are taken very, very seriously, and that political connections cannot shelter any such criminals.
A jury has now pronounced Scooter Libby guilty. Its verdict, and the actions of the trial judge that led up to its verdict, will be scrutinized through the normal and scrupulous process of a motion for new trial and then appeals, and one must allow for the possibility that the verdict will be set aside. Others who have more expertise than I do in federal criminal procedure and who have been following the trial more carefully than I have would be in a better position to make informed predictions about the likelihood of that. But for today, anyway, subject to that possibility, Scooter Libby has been found guilty of crimes that are still serious ones — even if they're not as dramatic, or as cosmically significant to national security, as what Aldrich Ames or Philip Agee did. And if, indeed, the guilty verdict stands up after post-verdict proceedings and appeals, then he ought to be punished.
I have two additional observations, neither of which are particularly profound or unique, but that I will nevertheless offer up for what they're worth. The first relates to the change in my own thinking about how the verdict probably ought to turn out, and the second relates to the possibility, now being widely speculated about, that Dubya might grant Libby a presidential pardon.
I'm saddened by the conviction because I support the Bush-43 administration, and I wanted to believe that none of its top officials would ever have committed the type of crimes of which Libby has now been convicted. And in October of 2005, I was struck by the poetic eloquence of Libby's letter to Judith Miller in which he urged her to end her defiance of the grand jury subpoena and to cooperate in giving her testimony. That seemed to me to be something that someone who knew he was guilty would be unlikely to write.
But the one fact that jumped out at me amidst all the other details of the trial was the decision by Libby and his defense team that Libby would not take the witness stand to testify on his own behalf. Prosecutors are not permitted to argue to juries that one's assertion of his constitutional right against self-incrimination is an indication of one's guilt. I don't know whether this jury actually did draw any adverse inferences from Libby's failure to take the witness stand.
Nevertheless, a defendant's failure to take the stand is the proverbial elephant standing there in the room that everyone must pretend to ignore. Whether this jury did or not, you and I are indeed free to draw adverse inferences. And the inference I draw is that Libby's defense team — who certainly must have spent countless hours previewing what his testimony would be, both on direct and on cross-examination — must have concluded that the risks from his taking the stand were not worth the benefits of him doing so, and that him taking the stand was likely to hurt his defense rather than help it. Put even more bluntly: Libby and his lawyers must have jointly decided that his own testimony at trial was more likely to convict him than to acquit him.
The inference here is strengthened by two other factors: First, the defendant's own knowledge and intent and state of mind are especially crucial in perjury and obstruction of justice cases; the obvious witness to negate those charges, or at least to raise a reasonable doubt about them, is the defendant himself. Second, the most common reason why defendants decline to take the stand in their own defense is that it will expose them to impeachment via facts that would be otherwise inadmissible. Typically the impeaching fact is a prior conviction, about which the jury would never be advised but for the defendant's decision to take the stand. But Libby had no such worry that his defense would be prejudiced through such exposure. So his and his lawyers' concern had to be with how he would hold up on cross-examination specifically with respect to the facts pertaining to these charges.
A genuinely innocent man — a man with no criminal history (and indeed, a superb record of accomplishments), an articulate man who himself is a skilled attorney who is unlikely to be trapped by unfairly clever cross-examination, a man who is confident of his innocence and his ability to demonstrate it — ought to have taken the witness stand to deny the charges against him.
And Scooter Libby ... didn't.
A man whose inevitable demeanor and presence on the witness stand, whose fundamental and unalterable and obvious nature, was completely inconsistent with the main theme of his defense lawyers — that theme being that he has a poor memory, and that he was so preoccupied with other matters that he simply forgot who told him what and when, or who he told what and when — would not take the stand.
And Scooter Libby ... didn't.
With respect to the possibility of a presidential pardon, I think all of that speculation is vastly premature. There is no doubt whatsoever that such a pardon would create a firestorm of public opinion that would further undercut such political capital as the Bush-43 administration may still claim. It's altogether possible that Libby's post-verdict motions and (assuming they are unsuccessful) appeals will not have run their full course before January 2009. He's likely to remain free on bail while his appeals are pending. There is no realistic possibility that he could return to a position in the Bush-43 administration even if his conviction were set aside, and certainly not if he were pardoned. So even if one indulges in the assumption that Dubya thinks Libby ought not be punished, there still is no good reason why Dubya would not wait until the closing moments of his term as president to issue a pardon.
Moreover — and I admit that I may again be naïve in thinking this, but I do think it — I'm not convinced of the premise: I'm not yet persuaded that Dubya does think that Libby is deserving of a pardon, nor that he will come to that conclusion over time. It's entirely probable that, as a White House spokesperson has already announced, President Bush is saddened by the conviction. He certainly cannot be happy about the collateral damage to his administration, and in particular to Vice President Cheney, from the conviction. (The Office of the Vice President has issued a terse statement that Cheny is also saddened by the verdict, but will otherwise not be commenting pending further proceedings.) But I continue to believe that one way in which Dubya is the "anti-Clinton" has to do with his personal character. It would be contrary to that character for Dubya to pardon Libby if his post-verdict motions and appeals are unsuccessful, just as much as it would be consistent with the poor character of Bill Clinton to issue such a pardon. I believe that non-lawyer Dubya is as committed to the concept of the rule of law as lawyer Clinton was contemptuous of it.
If Libby is guilty — and right now, he's no longer presumed innocent, notwithstanding the chance that the guilty verdict may still be set aside — then he ought to be punished. I just don't think Dubya will get in the way of that process, even if he may be sympathetic to Libby on a personal basis (as, apparently, at least some of the jurors also were).
UPDATE (Tues Mar 6 @ 6:30pm): I'm singularly unpersuaded by arguments — like those made over on the Corner by Mark Levin — to the effect that crimes of the sort that Libby has now been convicted of shouldn't ever have been prosecuted. Does that not smack of all of Bill Clinton's defenders who tried to excuse his perjury before a grand jury on grounds that it was okay to lie about sex? That Wilson is a lying bozo, and that there was no crime connected with the "outing" of his wife, did not authorize Libby or anyone else to lie in sworn grand jury testimony or to obstruct the path of prosecutors as they reached that conclusion!
Instead, I find myself mostly in agreement with former federal prosecutor Andy McCarthy's take on these events:
... The administration had every good reason to refute Wilson — it was essential for the public to be told that what Wilson said in his op-ed was disingenuous; but I wish administration officials had done that openly and without apology, rather than in confidential leaks to reporters.
All that said, though, there was an investigation, and nobody, especially public officials, should lie to the grand jury or to investigating police. We can't (or at least we shouldn't) take the position that the obligation of truth-telling applies only to the investigations we approve of — especially when we live in a country where you are privileged to decline to answer any questions. What Libby did here was not the worst wrong in the equation, but it was still wrong.
The exception is that I don't agree with Andy's suggestion that there should never have been an investigation in the first place. I continue to believe that to rule out even any remote appearance of impropriety, the appointment of a special counsel was appropriate, and an exceedingly thorough investigation had to be made even if, as was probably true here, the prosecution would have exercised its discretion to wrap things up sooner but for the political overtones of the case. Fitzgerald had to be meticulous lest he be accused of being part of a whitewash. It was apparently Libby's very bad judgment to be caught having lied, for reasons that still are largely inexplicable, as he was floating along with many others in the wake of an investigation that was already headed to a fully justified but grandly ceremonial burial at sea.
Other weblog posts, if any, whose authors have linked to The Libby verdict and sent a trackback ping are listed here:
» In Stardom, Patterico Forgets the Little People from Big Lizards
Tracked on Mar 8, 2007 8:08:46 AM
(1) The Drill SGT made the following comment | Mar 6, 2007 6:03:47 PM | Permalink
Personally (meaning with out a basis in fact) I think it is likely that Libby is guity of covering up and lying about what effectively was not a crime.
I think you'd agree that, setting aside for a second the Fitzgerald angle, that the FBI HATES being lied to, and will go out of its way to make the miscreants pay.
I was struck however, by the difference in the way that the press, the DoJ and the courts handled Berger compared to Libby. I think Berger's behavior was far more damaging and willful, yet his was a non-punishment.
Drill SGT, I completely agree with you about Berger. At one time I thought he got such a light punishment because the prosecution's case against him was thin. Later revelations have caused me to change that view; Berger got far, far too light a sentence, and he should have been tried in public, rather than permitted to plead out. The greatest travesty of the Berger story, however, is yet to come: When he's "rehabilitated" and takes his place in the next Democratic presidential administration.
(3) craig mclaughlin made the following comment | Mar 6, 2007 9:45:39 PM | Permalink
"Libby and his lawyers must have jointly decided that his own testimony at trial was more likely to convict him than to acquit him."
My sense from reading Maguire's site was that most of those observers thought that Fitzgerald didn't come close to meeting his burden and that Libby's testimony in addition to the six hours of Grand Jury testimony the trial jury heard was not necessary. We can second guess that decision, but I think you can allow as how it was a reasonable choice without being forced to conclude that a truly innocent man "ought to have taken the witness stand to deny the charges against him. "
I don't think that's entirely fair to Mr. Libby, guilty or not.
Perhaps one day we will find out why Libby testified the way he did before the grand jury. Regardless, the law (including perjury law) needs to be respected.
One aspect of the trial process that should not be forgotten is the example that this trial offered of the frailty of human memory. Reporters' memories were soft. One of the FBI agents had memory problems. The memory expert Loftus (disallowed by the court)had memory lapses. Even contemporary notes were inconclusive and added to confusion.
Mr. McLaughlin, others certainly have followed the trial more closely than I claim to have done. But hearing Libby's taped grand jury testimony is in no way remotely comparable to hearing him live from the witness stand especially when the ultimate issues in the case turn on the truthfulness of the grand jury testimony. That's no reason not to call the defendant at trial.
Nor, when the trial court has denied your motion for a directed verdict meaning the jury will get to decide guilt or innocence, and the judge believes there has been enough evidence adduced by the prosecution in its case in chief to support a guilty verdict is it a safe bet to rely on a strategy of arguing to the jury that the prosecution has failed to meet its burden of proof. That the prosecution has the burden of proof in general does not mean that the defense need not, or ought not, present its own evidence. If you've got exculpatory evidence that you believe will be more helpful than harmful, you damn well better use it!
When the defendant's truthfulness is the key issue, and when there's no other obvious reason for him not to testify (like a prior conviction that would otherwise be kept from the jury), deciding not to put the defendant on the stand absolutely and positively has to be viewed as a high-risk strategy (rather than an "obviously reasonable" strategy). No well-advised defendant would run that risk unless he and his lawyers were convinced that there were countervailing risks of greater weight. And I can't think of any countervailing risks other than the risk that his live testimony would be harmful rather than helpful i.e., that his live testimony would make him appear more, rather than less, likely to be guilty.
That he chose not to take the stand does not prove his guilt. It certainly meant that he didn't have the benefit, whatever it would have been, of his own testimony as to his innocence, though. And the inference raised by the defendant's failure to take the stand, although not logically conclusive, can nonetheless be extremely probative to outside onlookers (even though the jury isn't supposed to consider it). In my view, given these particular circumstances, it's a particularly persuasive inference.
As to memory lapses of others be it Tim Russert or whoever it's common knowledge, not requiring any expert testimony to prove, that human memories are indeed frail. Others' memory failures say absolutely nothing about whether a memory failure was the genuine explanation for Libby's own inconsistencies (whether with his own prior testimony or with others' testimony). No one else was on trial. Libby, and therefore Libby's memory, was on trial. It was the key to the trial. But the jury never heard from him with his own explanations for his grand jury testimony or his own version of what he'd told the FBI investigators.
Others' truthfulness and accuracy was at issue, but only incidentally that is, insofar as such things affected the weight and credibility of their own testimony. But no other witness was in a position to make as powerful an argument about Libby's memory and truthfulness as he himself was in. Indeed, attempts to prove anything about Libby's memory or truthfulness or distractedness through other witnesses were necessarily lame in comparison to what he himself could potentially have said on his own behalf.
Yet Libby and his counsel deliberately chose not to put him on the stand. I may be wrong, but I cannot read that as anything other than a calculated decision on their part that however hard Libby might try to appear to be scatter-brained and forgetful, he actually isn't, and he couldn't pull off such an act from the witness stand. I just can't come up with any other persuasive explanation for why he wouldn't testify. I've seen suggestions that if he'd taken the stand, he would have been exposed to impeachment from his prior inconsistent statements to the grand jury. But that entirely begs the question: The reason for him to TAKE the stand would be to confront the prior statements head-on, because they were damn well going to be used against him whether he took the stand or not.
(6) craig mclaughlin made the following comment | Mar 6, 2007 11:58:56 PM | Permalink
I think it is possible that a truly innocent man--and I'm not arguing that Libby is one of those-- could be convinced--wrongly as it happens-- that the proscecution case was so weak that there wasn't a need to testify or that further testimony might just confuse that point. All of this is very speculative, of course, which is the basis of my hesitation to take that leap with you.
Thank very much, Beldar, for taking the time to share your perspective on the trial tactics. It was time well spent because it doubled my (admittedly still inadequate) understanding of the case.
(8) Pat Smith made the following comment | Mar 7, 2007 8:01:01 AM | Permalink
Beldar: your comments are informed; will there be a release of official jury records to specify exact language or actions which constitute the obstruction and lying? I am not a lawyer, only a community college poli sci instructor and we had a class discussion on how the media will proceed with it> The media will still likely spin from both sides, I always hope for precise information as to the actual criminal acts. Again, a perfect example of how complicated the system has"evolved" as the crucial charge of "outing an agent" was never legally determined, but a cover up during the investigation in front of FBI and a Grand Jury were the convicted acts even from a trained lawyer like Libby. The usual conspiratorial claims of the fall guy and scape goat especially by the voiciferous journalist juror about Where are Rove and Cheney will be the sensational saturated spin from the left for some time to come. Your legal comments will be appreciated.
(9) The Drill SGT made the following comment | Mar 7, 2007 9:27:08 AM | Permalink
When he's "rehabilitated" and takes his place in the next Democratic presidential administration.
He could get a NSA job again, but I would think he'd want the Sec State slot and I can't see a Senate giving him 60 votes, and that's what it would take.
(10) Dwilkers made the following comment | Mar 7, 2007 1:08:24 PM | Permalink
I'm not yet persuaded that Dubya does think that Libby is deserving of a pardon, nor that he will come to that conclusion over time.
I'm not so sure either. I think you're spot-on with your comment about this being contrary to Bush' character.
And I also agree about Libby not testifying. I've been on juries and jurors do wonder when people don't take the stand to deny they commited the crime. But I also think that contrary to 'presumption of innocence' in fact juries tend to presume guilt.
(11) James B. Shearer made the following comment | Mar 7, 2007 6:38:47 PM | Permalink
Regarding the strength of the case against Liddy, Maguire was rooting for Libby and therefore not the best person for an unbiased assessment of the evidence. Even so I believe he predicted a conviction on some counts. And I believe the betting odds were about 70% for conviction when the case went to the jury.
(12) TCO made the following comment | Mar 8, 2007 12:10:24 AM | Permalink
I think it is likely that Libby is neither as intelligent or as unflinchingly unhonest as we would wish. Based on what I've seen from the JOM crew, I'm disappointed in my fellow Republicans. They should join the Democrats. They are weak and need to do a lot of pushups...
(13) Matt made the following comment | Mar 8, 2007 8:56:48 AM | Permalink
I am new to this blog. Please explain to me...if Libby was innocent and no one had done anything wrong, then why bother lying? Who was he lying for? I don't get it.
I think your interpretation of the jurors' sympathy towards Libby is incorrect. They were sympathetic because they felt he was the fall guy for someone above him, i.e. Rove or Cheney.
(14) Stuart made the following comment | Mar 8, 2007 10:17:30 AM | Permalink
Beldar, how much do you think this will affect the willingness of people in the government to cooperate with an investigation in the absence of a grand jury subpoena?
(15) James B. Shearer made the following comment | Mar 8, 2007 12:15:39 PM | Permalink
Beldar, if it would show poor character for Bush to pardon Libby, what does this say about the character of the people asking Bush to pardon Libby?
(16) Jinnmabe made the following comment | Mar 8, 2007 4:08:41 PM | Permalink
With regard to Stuart's question above, I know I've already made up my mind. I'm not a criminal attorney, just civil stuff, but I'll be damned if I say anything other than "I refuse to testify" if I'm ever asked to cooperate in an investigation. It's been my (admittedly limited) experience that trying to hedge your statements with "To the best of my recollection, Valerie told me that..." doesn't do any good and wouldn't have helped Scooter here to avoid a perjury charge. Maybe I'm wrong, but without a subpoena, I'm going to dummy up every time, rather than take the chance.
"Motive" appears to me to have been the weakest part of the prosecution's case, and it's part of what makes Libby's conduct so inexplicable. But motive isn't an element of any of the crimes; rather, intent was. The motives suggested by Fitzgerald weren't terribly persuasive, but frankly, they didn't need to be. People sometimes deliberately and intentionally tell lies even when their motives for doing so are weak or confused or even nonexistent. I certainly agree that in that sense, Libby's was a "senseless crime," but that doesn't mean it's not a crime at all.
Saying "I don't remember" when you actually do remember can indeed be perjury. It is indeed hard to prove, but the way it's done is very much like what Fitzgerald did here: You build an inferential case through circumstantial evidence as to the speaker's state of mind -- specifically, that beyond a reasonable doubt based on that inferential and circumstantial evidence, the speaker must indeed have known/remembered. An example of this is Fitzgerald's pointing to the two hours Libby spent lunching with Judith Miller to talk about the Plame/Wilson matter during the week when he was supposedly so distracted with other unrelated and important matters of state. If it was worth two hours of Libby's very precious time during such an important week in his life, how could he then have forgotten about it when he talked to the FBI or the grand jury? You need many such examples, and a persuasive pattern of circumstances, to get to the "beyond a reasonable doubt" point, but it can be done. And it's certainly easier for the prosecution to get there with only a circumstantial case when the defendant fails to take the stand himself to offer his own competing and direct (i.e., non-circumstantial) evidence as to his state of mind, intention, and memory. Libby and his defense team deliberately chose to withhold from the jury the only witness in the world who could give direct evidence on those topics Libby himself. Having done so, they took a huge risk that they'd lose the battle of circumstantial evidence, and they did lose it.
Invoking the Fifth will, inevitably and appropriately, put you under closer scrutiny. You have a constitutional right not to incriminate yourself; you don't have a constitutional right to refuse to incriminate yourself and suffer no consequences from that. The prosecutor can't argue to the jury that your refusal to take the stand is evidence that you had something to hide. But in doing his investigation, the prosecutor certainly can, and probably should, use his own common sense in deciding whether to dig deeper and look harder at someone who's refusing to cooperate.
Mr. Shearer: I would not attack the character of anyone who's defending Libby's position, and in particular, I would not attack those who suggest a pardon would be appropriate.
There are some important points to be made that might weigh in favor of a pardon even if Libby is genuinely as guilty as the jury found him to be. It's entirely appropriate, for example, for the President to consider Libby's public service record, which by every other measure seems to have been exemplary. I think it would be appropriate, too, for the President to consider the lack of genuine harm to national security and the absence of anyone being indicted, much less convicted, for the originally suspected underlying crime (a criminal leak). Those things aren't inconsistent with Libby being guilty, but they may nonetheless cut in favor of a pardon.
Byron York and Andy McCarthy were on Bill Bennett's radio show this morning, and they made some excellent points among them that Libby's conduct, even assuming it was criminal, was trivial in comparison to government workers who've leaked to the press on a series of matters that genuinely have damaged our national security and undercut the ongoing war against terrorists. But that means those people should be prosecuted not that Libby was authorized to lie in what turned out to be an investigation of a non-crime.
I don't suggest, though, that anyone who feels troubled, or even outraged, at the Libby prosecution and verdict thereby is demonstrating bad character. I don't interpret anyone as being for perjury or obstruction of justice in general, and there are indeed troubling aspects of this case. Even Fitzgerald, in his post-verdict remarks, volunteered that it is a "sad" thing for someone like Libby to have had to be prosecuted and convicted for this.
And I'm not arguing that Dubya ought not pardon Libby. I do think it won't happen until the end of his term, if it ever does. And I'm not convinced that Dubya won't grant the pardon; I'm just saying that it wouldn't much surprise me too much if he didn't.
McCarthy also pointed out on Bennett's radio show this morning that contrition, or the lack thereof, is oftentimes a factor in deciding whether a pardon is appropriate. I would like to hear Libby's explanation from his own mouth, and I haven't heard it yet. That explanation might involve contrition; it might only involve explanation, justification, or mitigation. But whatever would come out of Libby's own mouth, it wouldn't surprise me if Dubya would want to hear that, too, before deciding on a pardon. Given that Libby didn't take the stand at trial, though, it's unlikely that anyone will hear that until his appeals have run their course which is another reason that a pardon would be premature.
(19) Jinnmabe made the following comment | Mar 8, 2007 8:07:42 PM | Permalink
I understand that taking the Fifth puts you under close scrutiny, but if there really is no underlying crime (as seems to be the case in this matter), that shouldn't be a problem. Does that mean that Libby (or his attorneys, who should have been in close contact with him throughout the investigation) actually thought there was a crime that had occurred? Or was he just the kind of guy that thought he could talk his way out of trouble?
As for saying "I don't remember", I think you're right that it can be proved, but I think it'd require exceptional circumstances, and what information the question was asking for. I mean
"what's your wife's name?"
"I don't remember"
is probably a little easier to prove than
"what did John Doe say to you on the night of March 13, 2003?"
I don't know if Libby should be pardoned or not; it's a tough call. But I would like to point out to anyone who doesn't know yet that someone put PardonLibby.org up for sale on eBay. I wonder what it'll go for. Here's the address:
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