Fighting Words

Free Scooter Libby

The case gets weirder by the day.

I. Lewis “Scooter” Libby 

If Scooter Libby goes to jail, it will be because he made a telephone call to Tim Russert and because Tim Russert has a different recollection of the conversation. Can this really be the case? And why is such a nugatory issue a legal matter in the first place?

Before savoring the full absurdity of the thing, please purge your mind of any preconceptions or confusions.

  • Mr. Libby was not charged with breaking the Intelligence Identities Protection Act.
  • Nobody was ever charged with breaking that law, designed to shield the names of covert agents. Indeed, the prosecutor, Patrick Fitzgerald, determined that the law had not been broken in the first place.
  • The identity of the person who disclosed the name of Valerie Plame to Robert Novak—his name is Richard Armitage, incidentally—was known to those investigating the non-illegal leak before the full-dress inquiry began to grind its way through the system, incidentally imprisoning one reporter and consuming thousands of man hours of government time (and in time of war, at that).
  • In the other two “counts” in the case, both involving conversations with reporters (Judith Miller of the New York Times and Matthew Cooper of Time), Judge Reggie Walton threw out the Miller count while the jury found for Libby on the Cooper count.
  • The call to Russert was not about Plame in any case; it was a complaint from the vice president’s office about Chris Matthews, who was felt by some to have been overstressing the Jewish names associated with the removal of Saddam Hussein. Russert was called in his capacity as bureau chief; any chitchat about Wilson and Plame was secondary.
  • The call was made after Robert Novak had put his fateful column (generated by Richard Armitage) on the wire, and after he had mentioned Plame’s identity to Karl Rove.

Does it not seem extraordinary that a man can be prosecuted, and now be condemned to a long term of imprisonment, because of an alleged minor inconsistency of testimony in a case where it is admitted that there was no crime and no victim?

I know of a senior lawyer in Washington who is betting very good money that if the case is heard again on appeal, the conviction will be reversed. This is for three further reasons, which I call to your attention.

1) There is an important constitutional question regarding Fitzgerald’s original jurisdiction. It is a rather nice legal question, having to do with whether, as U.S. attorney for the northern district of Illinois, Fitzgerald is a “principal” or “inferior” officer under the Appointments Clause of the U.S. Constitution. A dozen senior legal scholars have filed an amicus brief, arguing that the authority under which the original prosecutorial investigation was conducted was itself dubious. I have no expertise in this very important matter, but in granting them leave to file, Judge Walton made the following hair-raising comment, which I reproduce in full because it is longer than his order and needs to be read in full:

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics’ willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

2) This low sarcasm displays not so much bias against the defendant, but actual animus. What does the number of days have to do with it? In how many cases involving poor defendants is an issue of constitutional law involved? Does the judge not know that Libby has already been almost ruined financially and faces incarceration? Would he have adopted the same tone if 12 experts ranging politically from Robert Bork to Alan Dershowitz had filed a brief arguing the opposite position? It’s difficult to see how an appeals court can avoid these questions.

3) The judge refused to let the jury hear from a memory expert and would not admit much of the evidence about Libby’s extremely heavy workload on matters of pressing national security. An amazing collection of testimonials has been prepared, from all points of the political compass, regarding particularly Libby’s concern about inadequate troop levels in Iraq and his work in strengthening the country’s defense against bio-warfare terrorism. It seems to some legal observers that the judge’s exclusion of some of this exculpatory evidence was a payback for Libby’s decision not to take the stand, which is his constitutionally protected right.

The rush to prejudge the case and pack Libby off to prison seems near universal. (Patrick Fitzgerald has denounced him for failing to show remorse; a strange charge to make against a man who has announced that he intends to appeal.) Given the unsoundness of the verdict, the extraordinary number of other witnesses who admitted to confusion over dates and times, and the essential triviality of the original matter (an apparently purposeless coverup of a nonleak, in private and legal conversations, involving common knowledge of information that was not known to be classified), it is unlikely that the verdict at present can stand scrutiny, let alone the sentence. But why go through all this irrelevant and secondhand hearsay again? Those who want to “get” someone for “lying us into war” have picked the wrong man and failed to identify a crime. Let them try to impeach the president, who should in the meantime step in to avoid any more waste of public money and time and pardon Libby without further ado.