Special Counsel Patrick Fitzgerald quite properly emphasized in his press conference on Friday that I. Lewis “Scooter” Libby is, in the eyes of the law, “innocent until proven guilty.” Fitzgerald, who has the gift of making extreme fastidiousness seem macho, also refused to comment in any way on Karl Rove or any other suspect—and isn’t even filing a final report—because he believes that the only thing the law should say is “guilty”—if it’s got the goods. If it can’t say guilty, it should say nothing at all.
This posture is admirable and darned charming in a federal prosecutor. But it is silly, sneaky, and wrong when adopted by politicians to avoid saying anything substantive, as many have done in the past few days.
Scooter Libby is not innocent until proven guilty. This is true in several senses, but let’s start with the one that many observers believe is undervalued in our hurly-burly world of today. It’s called reality. Libby may be innocent, or he may be guilty. We will try to reach a conclusion about that in a trial, which of necessity lies in the future. But the events that his innocence or guilt turn on are all in the past.
Either he fed the FBI and the grand jury a phony story in order to impede the investigation of a security leak, or he didn’t. Even the states of mind that the law requires for various crimes—knowledge of this or that, intent to do this or that—occurred or did not occur in the past, however imperfect our future efforts to fathom them might be.
The presumption of innocence is a conceit of the judicial system. That doesn’t make it a bad thing. In fact it is a good thing—one of the ornaments of free and democratic society. The law, and especially the criminal law, is full of conceits that serve justice, although they require participants to make believe various things. The rules of evidence, for example. Anyone who has watched a TV courtroom drama, from Perry Mason to Law & Order, has heard a judge declare that “the jury will disregard” something no one seeking the truth would disregard. That’s because the judicial process has other goals besides seeking the truth.
One of those other goals is protecting the innocent. The law bends over backward to avoid a wrongful conviction. That’s why it excludes certain kinds of evidence, and that’s why the standard for conviction is guilt “beyond a reasonable doubt.” In a civil lawsuit, the standard is generally “more probable than not.” Whatever probably happened, as best as the judge or jury can determine, is taken to have happened. But in a criminal trial there is a whole range of probability that is off limits: It probably happened, but not beyond a reasonable doubt.
The judge and the jury who try Scooter Libby must start with a presumption of innocence and must consider only the facts as presented at trial—which may or may not include all the relevant facts. If the truth is that he’s probably guilty, but not beyond a reasonable doubt, they must declare him innocent. Superman fights for “truth, justice, and the American way,” but the American way sometimes pits truth against justice. In the courtroom, justice counts for more than truth. But outside the courtroom, truth has its claims as well.
In refusing to discuss any aspect of the CIA-leak mess, the White House is exploiting an American mania for judicial process that President Bush has so often criticized. Meanwhile, in the Supreme Court mess, Democrats have been misusing this same mania against the president. Trying to milk every last drop out of the botched nomination of Harriet Miers for the Supreme Court, the opposition party faced a challenge: How can you knock Bush without endorsing Miers? Solution: You complain that she was denied her fair opportunity to a hearing and an up-or-down Senate vote. And that is the official Democratic sound bite. But it is ridiculous. Hearings are about the Senate’s right to approve of the president’s choice, not a nominee’s right to be approved. There is no such right, and no right to a hearing, either.
As for the CIA-leak investigation, there are more than enough facts, unchallenged or beyond reasonable dispute, to raise questions that President Bush and others should have to answer. These questions do not depend on a final judicial resolution about one person’s guilt or innocence, and they shouldn’t have to wait for it. The most important of these questions involve the legitimacy of the war in Iraq. To avoid this topic, the administration and its defenders cling to Special Prosecutor Fitzgerald’s declaration that the war and the Libby prosecution have nothing to do with each other. It’s fine, and appropriate to his job, that he thinks so. But about this, at least, he’s quite wrong.