David Boies and Scooter Libby
Robert Novak is dead-on in his Washington Post article (which is rare for Robert, in my view, since he is, generally, such a mean-spirited, snarly son-of-a-bitch).
A Verdict on the Wilson Affair
If David Boies, the lawyer for Vice President Gore in Gore vs. Bush, is arguing that Libby shouldn't have been prosecuted because there was no underlying crime, for which I have seen zero evidence that there was and which the Judge specifically ruled inadmissable because, in all likelihood, there was no underlying crime - Valerie Plame was not likely covert, and certainly not within the 5 year timeline needed to make this the alleged crime - then liberals, Democrats, conservatives, and Republicans should be taking a second look at this case. Boises arguments are strong ones for an appeal in this case, and if they lose on appeal, President Bush should pardon Scooter Libby on the merits of the case, assuming that this is the case.
The truth is exactly what Robert Novak argues in this article. This was a political prosecution that was not sound on its own merits. If Valerie Plame was covert and Scooter Libby knew that fact and he and anyone or a conspiracy of folks in the Administration set out to expose her for political purposes, I have much less sympathy for Scooter Libby, even as I doubt this prosecution would do much good.
But the much more serious situation, here, is that it is very likely that David Boies is right. That there was no underlying crime here. And that liberals and the press have gotten wrapped up in their animus for the Administration and convicted a man for a crime for which there was no underlying crime. There is a very strong case to be made that this was a misunderstanding of an argument about the relationship between Joseph Wilson and his trip to Niger and the Administration and not an effort to out a covert CIA agent who, at this point, it does not appear was covert, and for which this case should likely be dismissed, unless evidence is produced to demonstrate otherwise. And even then, I, personally, would be open to a pardon, unless I hear a clear case for why his prosecution would do some actual good, for which I have not heard, for all of the cheerleading coverage I've heard on the conviction in this case.
The truth is that our bloodlust and eagerness to get tough and force our way through difficult issues has likely gotten the best of us in this situation. And a potentially and very likely innocent man's freedom may be hanging in the balance while we try to see past all of our animosities.
Lewis Libby still has my presumption of innocence in this case. Not because I don't think that he lied. I do think that he lied. I just think he lied about nothing out of his fear of being prosecuted, not necessarily because he had done anything illegal. The ever-feeding cycle of cynicism in this case and in Washington should not be a reason to put a man in jail. To the contrary, we should face up to the consequences of our zealous efforts to muscle our way through difficult issues if we ever want to get Washington on the better track.
Love,
Ben
4 comments:
People keep talking about this "lack of an underlying offense" as some kind of flaw in the verdict. They act as if it makes Libby not guilty. That is NOT true.
It DOES raise questions about Fitzgerald's motives, as one usually would OPT not to prosecute a false declaration absent a related criminal offense either under prosecution or concluded. However, that is a matter of prosecutorial discretion and not a matter of law.
Here's the Libby indictment. The actual indictment, not some kind of evening news encapsulation:
http://i.a.cnn.net/cnn/2005/images/10/28/indictment.pdf
The false declarations counts are brought under Title 18 of the US Code, Section 1623 (18 USC 1623).
Here's the law:
http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001623----000-.html
There's absolutely NO requirement to prove a related or underlying criminal offense in a prosecution for false declarations.* Never has been. Never will be.
Law Professor Ellen Pogdor from Stetson says this about the "no underlying crime" argument:
"From a legal perspective this is a tough argument as perjury (actually false declarations here) does not require a motive and a lack of a motive does not negate the elements of the offense. From a practical perspective, however, this may be a hook for a jury, if it is so inclined, to find that he did not have the mens rea to commit the offense."
In other words, it might make you seem less naughty in the eyes of a forgiving jury or in the eyes of Robert Novak, but it doesn't have shit to do with the law.
Just in case you didn't follow that link and read the code, Pogdor summarizes the elements of an offense under 18 USC 1623:
"The basic elements of this charge are that the accused acted "1) under oath; 2) before or ancillary to any court or grand jury of the United States; 3) made a false; 4) material statement; 5) with knowledge of its falsity.'"
The lack of an underlying crime requirement isn't an accident or an oversight. There's a damn good reason why it IS NOT required. Although I'm reluctant to crutch on Fred Barbash from the Washington Post instead of using my own words, I'm lazy. And he actually manages to hit the nail on the head:
"Then and now, the theory has been essentially the same: If people are allowed to lie during the investigation of a crime, the crime cannot be proven. It may go unpunished or an innocent person might be wrongly punished.
That is why perjury has never required proof of an underlying crime. Without access to the truth, there may be no way to show the underlying crime. (A perjury indictment unaccompanied by a charge of an underlying crime remains, nonetheless, controversial because critics sometimes see it as the product of a failed probe.)"
You can make all sorts of valid arguments against the Libby prosecution. Prosecutors DO have discretion to bring charges and Fitzgerald could (and maybe should) have passed on this one.
You can question Fitzgerald's motives. You can make arguments about partisanship. All potentially valid and compelling.
Novak does some of that, but no more effectively than you or anyone else.
He is, however, adding his voice to the chorus of those using the "no underlying offense" thing to portray Libby as an innocent, which is laughable.
Usually, you slide by without prosecution if you lie to a grand jury and a charge on the offenses under investigation don't materialize. Usually. It's not your right to skate by if you're lying. It's not the law, which is the idea some folks (ironically the same ones who screamed "rule of law" over the Clinton BJ false declarations) are trying to seed.
Ben, I understand your reservations and complaints about this whole deal. At the same time, though, we have an administration that seems to run roughshod over just about anything when it suits their needs. This might not be an optimal way of creating accountability or bringing that to people's attention, but it is one way.
I don' back it necessarily, but I refuse to pretend that the motivations behind the snipes going after Libby somehow invalidate the need for this administration to stop acting above it all and doing what it wants, when it wants.
CDB
I completely agree, Carson, that the Administration needs to stop running roughshot over anything that suits its needs. And I think Patrick Fitzgerald does too. He clearly pursued something that followed the liberal line on what was going on and then after figuring out that it wasn't what they thought it was, he went after Libby to teach the Administration a lesson. The question is, now, whose going to teach Patrick Fitzgerald a lesson? And while we're at it, whose going to teach every asshole with too much power running roughshot over the world. Because there's a lot of them out there. And no party or ideology has a monopology on them all.
This was a case of prosecutorial zealotry that needs to be checked by either an higher court or by the Bush Administration. And contrary to all of the assertions of what the law says, the law ultimately says that the President or those higher courts make the final call on whether or not this was a legitimate prosecution or prosecutorial zealotry. And every time one of these kinds of things stand where someone does something human out of fear rather than something seriously wrong, it undermines the court and the criminal justice system. The court should overrule it because it was a politically motivated prosecution. And President Bush should pardon it if they don't.
See, Carson, this is my problem. As long as assholes take power in each party and in a million different offices, then I have to rely on assholes from the other party to check their power. But then, again, that is what democracy and a court system with checks and balances was designed to do, when you have assholes abusing their powers.
Would have made a lot more sense for Fitzgerald to just say, "Looks like there wasn't a crime, here, and that Libby lied because he was afraid in case there was, even though there wasn't. Human, and not a reason to put a guy in prison. And certainly won't do any good."
But he didn't. So now the law says that Lewis Libby should use all of his options to overturn this thing.
And I hope he's successful.
Ben
Even if his option is to call in the favoritism of his particular bunch of cronies?
I don't see an appellate issue with respect to the prosecutor's actions. I can't imagine any grounds for an appeal on the basis that the prosecutor acted within his law-derived authority to pursue the charges. Political motivation isn't grounds for an indictment being tossed out. If the facts prove the elements of the offense beyond a reasonable doubt in the eyes of the jury, that's a wrap.
If we could toss out convictions due to political motivations, every crackhead who got more time than a cokehead would be out. So would every hippie pot-smoker from the Great state of California. Hey, I'm all for that (politically), but I notice that it doesn't work that way.
I haven't looked at the sentencing guidelines, though. That may be the "out" for Scooter. The judge's discretion in sentencing may serve as a check on Fitzgerald.
As for a pardon, that would be just as dirty, if not more so, than the prosecution. And just as politically biased.
I don't want to seem like the world's biggest defender of Fitzy or this prosecution, but I am a little nauseated by the sudden chorus of R-voices who are doing their damnedest to PRETEND like there wasn't a LEGAL basis for it. There was.
Whether the pursuit of the charges was right is another question, but this whole "no underlying crime" thing is bullshit tailor-designed for TV and Novak columns. Nothing more.
If people want to argue that Fitzgerald is a prick and that the judge should go lightly, I am cool with that. When people start pretending that Libby's behavior didn't fall within the statutory guidelines constituting a false declaration, it's an insult to intelligence.
I don't think Libby is the devil. I don't think he should rot for a quarter of a century. I'm willing to listen to authentic arguments (and you make many) about poor judgment and twisted motivations.
I'm not willing to pretend the US Code doesn't say what it says, though.
It's an ends/means things. Too many people are copping out on the "no underlying offense" line of BS because that's more sellable to the folks who've never cracked open the code and don't know the difference between false declarations and Declaration of Independence.
The irony is that they have some decent arguments but they can't effectively use them because it opens the worm can of hypocrisy, doesn't it?
As Brother Malcom might say, the chickens are coming home to roost. As a MLK guy, you would probably prefer a more forgiving and balanced approach. Me, too, probably...
On the other hand, what is the recourse to the Administration's behavior. They fucked with Plame to get back at Wilson and EVERYONE knows it. That may not end up being a criminal offense, but at least a few lesser ones were committed in perpetrating that partisan operation.
Libby may be caught in the crossfire just because he played along with Cheney & Co. Well, when you decide to play along with people like that, you should probably expect to reap what you have sown. At the very least, you probably shouldn't agree to be the bitch for Cheney in the first place.
Libby isn't a martyr. He's a dick. Being a dick doesn't necessarily warrant 25 years, but I hate to see this lackey of soft tyrants portrayed as "Po' Little Scooter."
Maybe it works like this...
When it's asshole vs. asshole, an asshole is gonna win.
The solution isn't wishing for the assholes to turn good. Convincing the wolves to don sheep's clothing solves nothing.
On some meta-level, changing the outlook and perspective of elected officials and their appointees to a less partisan and more genuinely decent/smart approach would be great.
As a practical matter, we keep sending assholes there, or at least sending decent people into some sort of asshole makeover machine.
You either give up on all of them or you pick your assholes.
Right now, I'm picking the D-assholes over the R-assholes because the D-team's tramplings on what I perceive to be our most fundamental and important liberties don't nauseate me nearly as much as do the R's.
Sad, perhaps. But true.
And yes, we all deserve better.
But we get what we pay for.
We get what we deserve.
And we all have ourselves to blame individually.
That is stupid. And we should rail against it. You do a fine job of that here.
In the meantime, I literally mourn for this country. In fact, I turned off the radio this morning while driving to work because I couldn't stomach listening to one more second of coverage about how we're handling those Gitmo detainees and our secret Tribunals of ??????. We've fallen SO far off the track since 9/11 that we are, as a free and decent nation, a rotting shell of what we were not that long ago.
So, for me, I am willing to try to listen to everyone and to arrive at the very best conclusions. That's true whether it's an R or a D talking.
But when one of the Big R's lackeys gets splayed out for lying to grand juries about what he knew and said about a convuluted revenge plot designed to discredit a guy who thought the war in Iraq was crap...
Well, you'll just have to forgive me if I can live with that right now.
CDB
See, Carson, I'm not convinced, yet, that they were actually trying to go after Valerie Plame. I'm not convinced they thought she was covert. And it turns out she wasn't. I've heard very plausible stories that they were arguing that they did not send Joseph Wilson to check on that uranium, that his wife did instead.
If it turns out that this is not true and that this was definitely dirty tricks, then I have less sympathy for Libby, too. But that's why I presume innocence, as a practical matter as much as part of a judicial ideal.
Now Libby likely did lie. But lying because you're afraid that some prosecutor is out to get you and your Administration and lying because you're trying to cover up a revenge scheme against a CIA operative are two very different things. And it matters to me a lot, here, actually, that they may be trying to catch this guy on a technicality when no real dirtiness may have been underlying this thing.
If that turns out to be wrong, then I have less sympathy for Libby. But I don't assume that it's wrong just because he's a Republican, at all, anymore. I don't have any sense at all, anymore, that somehow Republicans are more likely to play dirty pool or be bigger pricks than Democrats. I think there's plenty of dirty pool and prickishness to go around.
As for the legal case, there are grounds for any case you want to make, Carson. People can and do interpret those grounds as narrowly and as broadly as they please. The one thing they always do is follow their own judgment (though not always for the best reasons), whatever that may be. That is the crazy part about listening to everyone crow about the law, these days, when the clear truth is that everyone, including the advocates and judges directly involved, make their cases for how that law should be interpreted completely within their framework of how the world should work rather than some lockstep, "This is how the law is."
It is true that appelate courts like to be deferential to lower courts, especially juries, except in the case of irregularities. But this constitutes enough of an irregularity to me to be grounds for appeal. Griswold vs. Connecticut was not the most narrowly defined decision of the century, but it's one of my favorites because it got the underlying issue right even if it wasn't some narrow framing of the law and the Constitution. Everyone comes at these issues that way, which is why appeals to the law as if it is sacrosanct are kind of bullshit and self-serving, depending on what political mood we happen to be in. I want people to do the right thing and I am fully aware of the history of the law and society to know that there are plenty of places in that history where the law and the right thing were not one in the same.
I think this is one of them. It's clearly not the same thing as sending the dogs after MLK or sending the Jews to the ghettos, but I think the right thing is being honest that this is political and that that is very likely distorting our take on it and acknowledging that given the fallibility of the courts and jury trials and all of our judgments, that we should err on the side of innocence and peoples' freedom rather than on the side of making sure we get our guy.
That's how the system is supposed to work, ideally. It doesn't always, as you've pointed out, though in the cases you mentioned I would want the courts to rule in that direction, as well, so I'm definitely consistent on this. And just because the courts don't rule in a more just way doesn't mean that they I shouldn't be arguing that they should. And if there is a means to make sure that a more just outcome occurs that doesn't violate some higher value, then I think we should take it. And I just don't buy the line that the "rule of law" is somehow more important than presuming that we may have gotten this one wrong and that somehow we should keep him in prison "just in case."
The system is supposed to work where tie goes to the runner if you're not sure. And I'm not sure on this one, and I think we should presume his innocence, even if a jury convicts him, unless I see compelling evidence otherwise.
And in the meantime, I think this was likely a political prosecution that was more about the Iraq War than it was about perjury, which was grasping at straws when the real legal concerns fell through. And I don't think this has done one iota of good towards creating an environment where anyone - Democrats or Republicans - are willing to take genuine responsibility for that war.
I opposed that war. Hillary Clinton supported it. And she's not taking responsibility for that vote. She's the victim of an elaborate ruse, if you haven't heard. She, too, was convinced Iraq had weapons of mass destruction and was shocked - SHOCKED - to find out that they didn't have what we thought we were looking for.
And this case hasn't moved us forward in that respect at all. To the contrary, it maintains all of the scare tactics that keeps everyone - Hillary Clinton and George Bush alike - quiet about genuine matters of responsibility for fear of being nailed.
That's what bugs me most about the current era, Carson. For all the huffing and puffing about getting tough and an era of accountability, I keep asking, "Where's the responsibility? Who's taking it? Where? How often? And how in the world can we say that we're facilitating it when people are so rarely taking it?"
And the worst part is that we're all victims about that as well. Well, people won't take responsibility. Well, that's human nature. Well, if they won't take responsibility, we'll take it for them. And on and on and on, without ever answering the very straightforward question, "If this is supposed to be the era of responsibility, why are so few people taking it?"
This trial was not about responsibility. It was about getting Scooter Libby and, by proxy, the President and the Vice President. Getting someone and someone taking responsibility are two very different things. And one often undermines the other. Often, if not more often than not, people avoid responsibility more when we try to get them rather than less, because they get all defensive about people trying to get them or hurt them. I know this from watching it all over the place and out of personal experience. We fight responsibility the more we are being hurt or attacked, generally. And this case and this political period completly confirm that perspective if we would open our eyes to it and not just keep making the same assertions about getting tough all the time. There are clearly times when it is more important to get someone off the streets than it is to get them to say their sorry. But this is not one of those times. Scooter Libby isn't even being accused of killing or raping someone, nevertheless whether he was actually trying to get revenge on Joseph Wilson. He lied when a prosecutor was investigating him because he thought they were trying to nail him in court, even if, as it turns out, there may very likely have been no case in court in the first place. He's a good man who got caught in a fishing expedition. He may turn out to be a dick, too. But I'm not convinced of that, yet.
And I'm not a judge trying to be deferential to a jury. I'm just a citizen who says that if that was my friend and he was going to jail and I wasn't convinced that he deserved to (and often, even if I was convinced he had done wrong but that he wasn't dangerous and it wasn't going to do any good) I wouldn't be ready at all to call it a day on this case. I'd be doing exactly what the National Review editorial board did and talking up an appeal and a pardon.
And that's the way I think the courts should defer, generally. Which is why many courts and police, thankfully, look the other way around drugs and all kinds of offenses.
Because, down deep, we know that it is human decency that should motivate our behavior, and not some technical notion of the law.
I think decency says to let this guy go and to not get wrapped up in the technicalities. I think David Boies is about as principled a person you are going to find speak to this issue.
And I think this is a perfect opportunity for all of us to face up to the ugliness that has taken over American politics, these days, and to begin to create something better.
I'm not interested in settling for one set of assholes over another set of assholes. That's just what I have to settle for, often, these days.
What I want is decent people to humbly debate and discuss important matters without making it so goddamn personal, all the time, and to do it honestly without twisting each other's arms, all the time, and rigging the game. And I certainly want us to get more honest about the fact that this is not the most honest way to do democratic politics, and to start expecting better.
Because the truth is that none of us has the monopoly on insight or wisdom or intellect or moral highground that we might pretend to have. And being more honest about that with ourselves and with one another would be one of the more decent and honest things that we could do as a liberal democratic society.
The problem with more repressive and reactionary and traditional societies is that they have such a hard time facing their flaws and facing up to the fact that they don't live up to their ideals.
Liberal societies do a better job of that. But we're still and perpetually far from ideal. And it would be a huge step forward for all of us if we could just face up and own up on this one. All of us. This isn't just about Lewis Libby. This is about all of us pretending to be living up to our own ideals better than we really are and sticking with some perfect image rather than facing more squarely the reality.
And that is what liberal societies and liberal peoples do best, Carson. They face up to the reality more honestly. And that is our opportunity, here, if we will take it.
But history is riddled with large and small tragedies while we learn to do that. And this, very likely, could be one of those small tragedies. It could also be the case of some guy helping his boss to hurt some guy's wife because that guy had the balls to criticize their war. But it could also very likely not be that. And letting him go, for that, is a far smaller tragedy than taking him out if he wasn't actually doing that.
In the meantime, Washington is a mess. And more than usual. It is steeped in all kinds of bitterness and vengefulness and ugliness, right now.
The finest speech by a politician I have ever heard in my entire life, Carson, was the impromptu eulogy that Bobby Kennedy gave for Martin Luther King when he was assassinated. And it very much addresses this very issue. Bobby addressing the country, and black people, in particular, and laying out the choice between hate and bitterness and a desire for revenge and the love and compassion that King taught.
It's a beautiful speech if you ever get a chance, Carson. And that speech as much as any I've ever heard captures exactly what is best about my liberalism, and about liberalism, generally.
We could use a little Bobby Kennedy and Martin Luther King, today, after so much Malcolm X and John Birch.
In Rwanda and Yugoslavia, no matter how long they prolong the ugliness, they eventually have to face up to the it and get past it. Our's is not genocide, obviously and thankfully. But it is ugly. And we've got to face up to it and get past it if we are going to move forward towards any genuine progress.
I'm completely clear that we will have to face this, at some point, to move forward. There's no doubt in my mind, anymore. And we will. Because we always do. Sometimes too late, given how awful we treat one another. But we always do.
I'm sure Protestants and Catholics saw there causes just as starkly and assured that they're sides had rightful claims to power in 17th century England as we do today (much more so, really). But they look foolish to us, today, because, with so much hindsight, it's completely clear that none of them had a monopoly on wisdom or decency. And I very much doubt that future generations will look back at our own and say, "Well thank goodness the Democrats finally brought wisdom and decency to the world." I used to think that, when I was more partisan. But I can see, now, that I was wrong. Democrats have now and always done all kinds of fucked up stuff, around the biggest issues (Governor Wallace was a Democrat; Huey Long was too). And they've created a lot of stupid laws and regulations as well, for all their good intentions.
And they have played and do and are currently playing dirty games with politics as much as Republicans. And I think it's time that we all just face that and expect something better. And to call it for what it is.
I don't care anymore who does it. I want it to end. And ending the endless political prosecutions would be a great place to start, I think.
Average Hutus and Tutsis were responsible for that genocide as much as political leaders. But eventually, as Desmond Tutu argues, we have to face up to the ugly legacies, and to forgive them, and to move forward. That is the only way forward.
And right now, that is the only way out of this godforesaken mess that we've created in our politics.
We should get together sometime soon, dude. I want to talk with you more about this writing idea.
Talk with you soon.
Love,
Ben
Post a Comment