Libby and Memory

The Stiletto Blog looks at differing recollections during the Libby trial, and how memory works.

And how it often doesn't work.

Scooter Libby Trial -- again

Irony and Hypocrisy, it says.

...isn’t it ironic that:

† During the course of an investigation to determine who identified Valerie Plame as a CIA employee, Richard Armitage - who admitted being the leaker - has not been indicted or prosecuted?

† Rather than shutting down the investigation after the leaker’s identity was known, Special Counsel Patrick Fitzgerald continued taking depositions and hauling people before grand juries to entrap them into making misstatements for which they could be indicted?

† Scooter Libby - who was not the leaker - was the only person prosecuted as a result of an investigation to find the leaker?

† Scooter Libby was found guilty of perjury and obstruction of justice in a trial during which no witness corroborated the story of another witness – meaning that their versions of events were no more or less credible than Libby’s?

† President Bush specifically selected Reggie B. Walton to fill a vacancy on the federal bench in 2001 because of his tough-on-crime reputation and track record of imposing stiff sentences?

† The Bush administration recently announced a tough new crime bill that empowers judges to impose longer - but not shorter - sentences, and the president commuted Libby’s sentence because he felt it was excessively harsh?

† Libby, who was Marc Rich’s lawyer when he was seeking a pardon from then-president Bill Clinton, would need a similar intervention by the executive branch himself just a few years later?

And isn’t it hypocritical that:

† Dems who vociferously argued that public humiliation was punishment enough for Clinton’s perjury, are now equally vociferous in their demands that Libby get jail time?

† In what Bush spokesperson Tony Snow called a gigantic case of chutzpah, Hillary Clinton denounced the commutation because it “sends the clear signal that in this administration, cronyism and ideology trump competence and justice,” despite the 140 pardons and 36 commutations her husband granted during his last hours in the Oval office having included pardons for his half brother, Roger, who was convicted of dealing cocaine and the aforementioned Rich, whose ex-wife donated gobs of dough to erect the Clinton Library?

† Hillary’s brother, Hugh Rodham, made a small fortune for successfully procuring a presidential pardon for a businessman under suspicion of money laundering and a commutation of the sentence of a convicted drug trafficker?

Pardons we have known

P.S. Ruckman looks at reasons that have been given for pardons in the past.

Most of the time, presidents provide no justification whatsoever for clemency decisions, even “controversial” ones. But Bush explained that he thought Libby’s sentence was too severe and brought it back in line with recommendations made by the probation department. The clarity of his statement prompted swift response from Patrick Fitzgerald, who defended the sentence as being within a range established by “law.” Unfortunately that is about 1/4 of what any fair-minded person would want to know — the other 3/4 being that the “law” establishes “guidelines,” there were legitimate disputes about their interpretation and application and they were not binding

The government section of the public library must be a spooky place for those who find Bush’s explanation of the lowest-grade quality. In the Annual Report of the attorney general, one can see pardons have been granted because criminals were “reformed,” promised to reform, or because their release might cause others to reform. Pardons have been given to those who were insane, went insane in prison, and those who might have gone insane if put into prison. Pardons have also been granted so criminals could take care of someone else who went insane, was going insane or did not want to go insane. Benjamin Ogle (convicted of manslaughter) was pardoned by Abraham Lincoln, in part, because Ogle was “rather remarkable for his good-humored disposition.” Now, imagine if Bush had written that! Lincoln was also moved by John Lawson’s “reputation for honesty.” Lawson (alias John Lassano) had been convicted for passing counterfeit money. If you think Bush’s explanation was among the very poorest, you just don’t have a library card.

Pardon-gate

Why not? Everything else gets "gate"-d sooner or later.

(I'm sure the origin of the "-gate" suffix will be a question on Jeopardy in a few years.)

Byron York has a nice review of the pardon power and its use throughout history.

More on the Libby/Plame case

Brian M. Carney writes in commentary magazine.

Libby’s troubles began that October when he was questioned by the FBI about his conversations with reporters during the weeks and days just prior to Novak’s July 14, 2003 column. Libby was not a target of the Justice Department investigation; it was not he who had spoken to Novak about Valerie Plame Wilson. But he had spoken with others. To Matthew Cooper of Time, for example, he had confirmed knowing or having heard that Wilson’s wife worked for the CIA. And he had had another conversation with Tim Russert, the Washington bureau chief of NBC News—who, by Libby’s account, surprised him by taking the lead and confiding the fact of Valerie Wilson’s employment at the CIA.

When Libby was finally indicted in October 2005, four of the five counts against him concerned these two conversations. He was in effect charged with telling the same lie about them twice: once to the FBI, and again to the grand jury that handed down the indictment. In brief, the case against him rested on differing recollections of two conversations during the week between the publication of Wilson’s op-ed and Novak’s column.

....

Another indication was that, for the next eighteen months, Fitzgerald would doggedly pursue a number of reporters to compel or cajole them into testifying about their sources. He sent Judith Miller of the New York Times to jail for refusing to testify about Mrs. Wilson, even though Miller had never published a word about the Wilson story. He nearly sent Matthew Cooper to jail as well. In all these months, the question of what Novak had done when confronted about his sources remained a mystery. But in retrospect it was no mystery at all. Fitzgerald, who knew the identity of Novak’s source before he ever questioned him, had simply presented the columnist with a single waiver of confidentiality signed by Armitage. This was enough, apparently, to convince Novak to cooperate.

In short, the main source having come forward voluntarily, Fitzgerald had learned everything he needed to know without Novak’s help. And as for Novak’s second “senior government official,” that was Karl Rove, who confirmed Armitage’s information; questioned repeatedly by prosecutors, he, like Armitage, was never charged with a crime. Had these facts been appreciated early on, Fitzgerald’s single-minded pursuit of a third person, Scooter Libby, might well have been cast in a very different light. But they were not, and so, since journalists abhor a mystery, a story grew up that Libby to this day has been unable to shake.

Ultimately, the case came down to differing recollections. Libby remembered a conversation one way, and a reporter remembered it another.

For example: Libby told the FBI and the grand jury that when Matthew Cooper asked him on July 12 whether Wilson’s wife worked at the CIA, he responded: “I’ve heard that from other reporters, too.” But Cooper recalled the conversation differently. According to him, Libby said simply, “I heard that, too.” On this discrepancy, for which neither side possessed any supporting notes or evidence, rested two counts of Libby’s indictment.

Next, Russert. A day or two before speaking with Cooper, Libby had spoken to him, too, about an unrelated matter. In the course of that conversation, according to Libby, Russert asked whether Libby knew that Wilson’s wife worked at the CIA; Libby answered that he did not, and Russert then offered that “all the reporters knew it.” But, once again, Russert had a different recollection. According to him, he never asked Libby about Valerie Wilson on that occasion. And thus two more counts were born—one for lying to the FBI and another for repeating the alleged lie to the grand jury.

Libby was ultimately acquitted of making false statements about his conversation with Cooper, though convicted of having perjured himself about it. The Cooper items were, indeed, the flimsiest of the counts in the indictment against him. As for the Russert items, they were virtually inexplicable. If Libby was trying to cover his tracks by making his conversations with reporters seem innocuous, what possible reason would he have for inventing an additional conversation about Valerie Wilson that, according to Russert and the prosecution, never took place at all?

The modern American government is a vast and largely self-sustaining bureaucracy. That bureaucracy acts, first and foremost, in its own interest, and not necessarily in the interests of its putative but temporary political bosses. The CIA, its intelligence having been challenged, sold out the White House on the sixteen words—even though that intelligence would later be upheld. The State Department, faced with the knowledge that one of its own was responsible for the Valerie Wilson leak, preferred keeping the White House in the dark to revealing what it knew. The Justice Department did what prosecutors do when ordered to investigate, which is to charge people with crimes.

Rabinowitz on Libby

Just what serious obstruction of justice Mr. Libby could have been guilty of, then, was, at the least, a heady question, though not one, clearly, that raised any doubts in the judge. Neither did Mr. Fitzgerald's charge -- also in pursuit of a heavy sentence -- that the defendant had caused, by his obstruction, no end of trouble and expense in government effort.

The obligation to truth, the prosecutor argued, was of the highest importance, and one in which Mr. Libby had failed by perjuring himself. It would be hard to dispute the first contention. It is no less hard to avoid the memory of Mr. Fitzgerald's own dubious relation to truth and honesty -- as, for example, in his failure to disclose that he had known all along the identity of the person who had leaked the Valerie Plame story. That person, he knew, was Richard Armitage, deputy to Colin Powell. Not only had he concealed this knowledge -- in what was, supposedly all that time, a quest to discover the criminals responsible for the leak of a covert agent's name -- he had instructed both Mr. Armitage and his superior, Colin Powell, in whom Mr. Armitage had confided, not to reveal the truth.

Special prosecutor Fitzgerald did, of course, have a duty to keep his investigation secret during grand jury proceedings, according to the rules. He did not have the power to order witnesses at those proceedings not to disclose their testimony or tell what they knew. Instead, Mr. Fitzgerald requested Messrs. Armitage and Powell to keep quiet about the leaker's identity -- a request they understandably treated as an order. Why the prosecutor sought this secrecy can be no mystery -- it was the way to keep the grand jury proceedings going, on a fishing expedition, that could yield witnesses who stumbled, or were entrapped, into "obstruction" or "lying" violations. It was its own testament to the nature of this prosecution -- and the prosecutor.

That prosecution was abetted by the draw of Reggie Walton, a trial judge not disposed to sympathy for the defense. Still, even for a judge with a reputation for toughness and a predilection for severe sentences, the court's behavior was -- there is no other word for it -- strange.

There were bouts of regularly expressed irritation when it occurred to Judge Walton that his conduct of the trial was being challenged -- as when the defense, arguing for postponement of the sentence, cited the existence of grounds for a successful appeal. And Judge Walton was impelled, at frequent intervals, to hold forth on the need for the man in the street to be persuaded that he receives equal justice. Defense lawyers must do what they must do, but at a certain point it was obvious that letters of support testifying to Mr. Libby's service to the country would avail nothing. Given a judge enamored of the image of his courtroom as an outpost in the class struggle -- a judge obviously determined that this government official had to be sent to prison now -- the outcome of this plea hearing was clear. It would have been the same, one understood, if Mr. Libby had been a Medal of Honor winner in a wheelchair.

At one point the judge delivered an outraged denunciation running to several paragraphs, about a footnote to an amicus brief filed on behalf of the defendant: One, he complained, in which the brief writers cited white collar cases. This indicated, the judge concluded, their indifference to the principle that blue collar criminals were entitled to the same rights as white collar ones. The writers had put the names of these white collar cases out there, the fugue continued, "solely in the hope that it would cause me to feel pressured. . ."

Finally, the judge dismissed the amicus brief filed by 12 distinguished law professors as "not something I would expect from a first-year law student." Nothing, however, quite equaled the court's flow of resentment toward the brief writers as his jeering observations about "these eminent academics" and how he trusted they might be moved in the future to "to provide like assistance" for litigants around the nation who lacked financial means.

The judge of course knew nothing about the signers of the brief or their pro bono work, nor did he have any need to, as he knew. A judge with life tenure doesn't have much to fear. Among the signers of the brief dismissed as unworthy of a first-year law student was Alan Dershowitz, more than half of whose cases are done pro bono. As to the merits of the case for allowing Mr. Libby to remain free pending appeal, Mr. Dershowitz, a liberal Democrat, notes that one of the other signers is Robert Bork: "I agree with Robert Bork on nothing -- but on this we're of one mind."

The prospects for Mr. Libby's success in an appeal hinge on three points, two concerning the court's refusal to allow the defense to present certain witnesses. The other potentially powerful issue relates to Mr. Fitzgerald. The Special Prosecutor was given, on his appointment (by his long-time friend, acting Attorney General James Comey) a remarkable freedom from accountability to any higher authority or Justice Department standards. This unique freedom was made explicit in his appointment letter. Such unparalleled lack of control, the appeal will argue, is a violation of the principle of checks and balances.

However it comes out, both the case mounted against Mr. Libby, and the sentence delivered, have plenty of parallels. It is familiar stuff -- the fruits of official power run amok in the name of principle and virtue -- and it's an ugly harvest. Mr. Libby is another in the long line of Americans fated to face show trials and absurdly long sentences -- the sort invariably required for meritless prosecutions.

There was at least one bright spot in the events of the last week, specifically, Mr. Nifong's removal from office -- a case, at long last, of a prosecutor called to account. It will be some while we can guess, before any such wheels of justice grind their way to the special prosecutors.

And here's the Washington Post article about the amicus brief mentioned above.

Scooter Libby

Richard Cohen, writing in the Washington Post, Calls the whole affair leading up to the sentencing of Scooter Libby "a train wreck".

For some odd reason, the same people who were so appalled about government snooping, the USA Patriot Act and other such threats to civil liberties cheered as the special prosecutor weed-whacked the press, jailed a reporter and now will send a previously obscure government official to prison for 30 months.

....

I have come to hate the war and I cannot approve of lying under oath -- not by Scooter, not by Bill Clinton, not by anybody. But the underlying crime is absent, the sentence is excessive and the investigation should not have been conducted in the first place. This is a mess. Should Libby be pardoned? Maybe. Should his sentence be commuted? Definitely.

Beldar on the Scooter Libby case

Beldar has some comments on the Libby sentence.

...he prosecution has not been able, as far as I understand, to articulate a causal chain in which anything that Libby did actually did obstruct Fitzgerald's investigation, or even a plausible chain of events by which it could ever have been expected by Libby or by anyone else to do so. There wasn't anything to his obstruction, in other words, than telling a story that would conflict with someone else's story. Nothing was permanently hidden; no path of inquiry was blocked. For Libby's feeble obstruction to have succeeded in hiding another crime, or preventing its investigation and proof, the FBI and Fitz would have had to be completely vegetative.

Also here...

Patterico and I have been among a pretty small minority of conservative bloggers who've been supportive of Fitzgerald and skeptical of those who argue that the whole Libby prosecution is bunk. I suspect that my friend would agree with me that if we start applying a relativistic approach — comparing Libby with, say, Sandy Berger — the Libby commutation would look better. But he'd also certainly argue that a relativistic approach is improper, and I tend to agree with that; and he'd argue that Berger going unpunished doesn't justify others going unpunished, and I definitely agree with that.

What he and I — and, with respect, you too, gentle readers — all lack is what I'll call the "sweaty shirtsleeves perspective" that Dubya has. If there is a basis for showing mercy, for indulging in an act of "constitutional grace," for Scooter Libby, it is because of the public service he's rendered during his career — not for reasons particular to this prosecution. Critics see it as cronyism, but in fact, no one is better qualified to judge the value of Libby's public service than President Bush. Huge, huge portions of what Scooter Libby did as a key inside figure in implementing the Administration's response to 9/11 and global terrorism is still highly classified. But the President knows on a first-hand basis what the man contributed, what its value has been, and under what critical and pressure-filled circumstances he served. And as it happens, George W. Bush is the one person in whom the Constitution entrusts the power to weigh that public service against the serious crimes of which Libby stands convicted. And he clearly thinks "this particular convicted felon" is deserving, even though there will be a political price to pay.

And...

Some politicians ought to be glad that God does not, in fact, smite politicians who tell colossal lies with bolts of lightning:

House Judiciary Committee Chairman John Conyers, Jr. (D-Mi.) released a statement saying that "until now, it appeared that the President merely turned a blind eye to a high ranking administration official leaking classified information. The President's action today makes it clear that he condones such activity. This decision is inconsistent with the rule of law and sends a horrible signal to the American people and our intelligence operatives who place their lives at risk everyday."

This is phony on so many levels that it leaves me dizzy. Perhaps Rep. Conyers would like the nation's chief executive to start routinely speaking out on all pending federal prosecutions — starting with U.S. Rep. William Jefferson's (D-LA) pending bribery case — so no one will think he's "turning a blind eye" to government corruption? Shall we just have the president phone up the jurors during the trial to tell them how to vote? It's not that I expect the Dems to give Dubya any credit for not issuing an outright pardon. I just expect them to tell more nuanced, sophisticated lies than this.

Rather than "mak[ing] it clear that he condones such activity," the commutation, as opposed to an outright pardon, makes it clear to anyone with the honest eyes to see it that President Bush is indeed committed to the rule of law, and that that is precisely why he's allowing the appeals process to continue (and, potentially, the fine, probation, and felony disabilities to stand). This is an act of limited presidential mercy. Only a demagogue can transform that into "condoning." Or maybe Rep. Conyers would like to be "condoned" himself by the destruction of his career, a felony conviction, two years of probation, and a quarter-million dollar fine (not to mention what's probably a seven-figure legal bill)?

Scooter commuter

Scooter Libby's sentence has been commuted. The jail time goes away, but he still has to pay a fine and go through probation. Bush is catching hell, because he's been so restrained in issuing pardons. Apparently, if you're a Republican, your past behavior is supposed to be a promise of future behavior, not an account against which you might be able to draw.

There are comments all over the place, of course. I'm listing a bunch from the Volokh Conspiracy.

Orin Kerr: Bush sets Libby Free

I find Bush's action very troubling because of the obvious special treatment Libby received. President Bush has set a remarkable record in the last 6+ years for essentially never exercising his powers to commute sentences or pardon those in jail. His handful of pardons have been almost all symbolic gestures involving cases decades old, sometimes for people who are long dead.

Thus, the "promise vs. account" theory.

Orin Kerr: "Politics" and the Libby Prosecution

...the claim, as I understand it, is that the Libby prosecution was the work of political enemies who were just trying to hurt the Bush Administration.

I find this claim bizarre. I'm open to arguments that parts of the case against Libby were unfair. But for the case to have been purely political, doesn't that require the involvement of someone who was not a Bush political appointee? Who are the political opponents who brought the case? Is the idea that Fitzgerald is secretly a Democratic party operative? That Judge Walton is a double agent? Or is the idea that Fitzgerald and Walton were hypnotized by "the Mainstream Media" like Raymond Shaw in the Manchurian Candidate? Seriously, I don't get it.

Orin Kerr: Why Didn't Fitzgerald Close Up Shop After Learning That Armitage Was the Leaker?

...you don't want to close up shop and then read in someone's memoirs ten years from now that the official (Armitage) was the fall guy who came up with the "accident" story to cover up something -- and that he got away with it because the naive prosecutor bought the story and closed the investigation without even verifying the facts.

Orin Kerr: President Bush Won't Rule Out Eventual Pardon For Libby

Orin Kerr:Judges Sentelle and Henderson Are Anti-Bush Hacks, Dersh Says

Scooter Libby Trial

The trial continues, in the deliberations phase.

Mary Katharine Ham notes:

One juror has been dismissed for receiving outside information about the trial, but deliberations continue with 11.

Huh?

I had to comment:

What? No alternate jurors?

And:

From the linked article, I see an alternate juror is available, but the judge elected not to force deliberations to start over from the beginning.

Weird.

I'll be interested to hear why deliberating with fewer than 12 juroris is not itself grounds for a mistrial.

Iraq, yellowcake, Wilson, and Plame

The accepted version of events is that Vice President Dick Cheney got things started when he asked for information about possible Iraqi attempts to purchase uranium in Africa. After that request, CIA employee Valerie Plame Wilson suggested sending her husband to look into the question, and after that, the CIA flew Joseph Wilson to Niger to investigate. But the new documents suggest that Mrs. Wilson suggested her husband for the trip before the vice president made his request. In other words, Joseph Wilson’s visit to Niger, which everyone believes was undertaken at the behest of the vice president, was actually in the works before Dick Cheney asked his now-famous question. And if that is true, our current understanding of the chronology of events is wrong.

The Libby Indictment

David Limbaugh, a practicing lawyer, offers his take on the Libby indictment.

Based on his press conference, Fitzgerald seems convinced that Libby willfully leaked "classified" information (Plame's affiliation with the CIA) to reporters not entitled to receive it. But he couldn't be sure whether Libby had the criminal intent the statute requires. Notice Fitzgerald didn't say he would have difficulty proving Libby's criminal intent but that he didn't know what Libby's intent was. That's a significant distinction because it's the difference between Libby having committed a crime that is difficult to prove, and not having committed it at all. Also note that the United States Supreme Court held that in order to be guilty of violating the Espionage Act, the accused must not only have intent or reason to believe the leaked information could be used to injure the United States or benefit a foreign country. He must also have acted in "bad faith." So, popular legal opinion aside, it seems it would have been quite difficult for Fitzgerald to make a case against Libby under the Espionage Act as well. And this is where the legal becomes relevant to the political. Democrats have been saying from the outset that Bush evildoers conspired to disclose Plame's "covert" identity to exact revenge on her husband Joe Wilson for undermining their claim that Saddam Hussein had tried to acquire uranium "yellowcake" from Niger. But no amount of posturing and yelling will make true their false charge that the Bush administration "outed" Valerie Plame to hurt its political enemies, to the detriment of national security. It's not just unprovable; it's false. Democrats are going to have come to come up with a better plan to criminalize the war.

More on Plame-gate

Christopher Hitchens ponders the effect of the Espionage Act and the Intelligence Identities Protection act.

The Republicans who drafted and proposed the Intelligence Identities Protection Act in the early days of the Reagan administration, in a vain attempt to end the career of CIA defector Philip Agee, could not have known that their hasty legislation would one day paralyze the workings of a conservative wartime administration. Nor could the eager internationalist Wilsonians who rammed through the 1917 Espionage Act--the most repressive legislation since the Alien and Sedition laws--have expected it to be used against government officials making the case for an overseas military intervention. But then, who would have thought that liberals and civil libertarians--the New York Times called for the repeal of the IIPA as soon as it was passed, or else for it to be struck down by the courts--would find these same catch-all statutes coming in handy for the embarrassment of Team Bush? The outrage of the left at any infringement of CIA prerogatives is only the least of the ironies in the indictment of Lewis Libby for discussing matters the disclosure of which, in and of itself, appears to have violated no known law.

I guess the moral of the story is, any time you propose a new law, imagine it being enforced against you by your worst enemy.

And then assume you've overlooked something.

The Martha Stewart Crime

"Scooter" Libby has been indicted. If he's found completely guilty on all five counts of the indictment, he may have to pay some $10,0000 in fines, and spend a year or two in prison.

He did not "out" Valerie Plame ‐ possibly because she wasn't "in" to begin with. His crime is lying to the person investigating whether or not a crime was committed. Apparently, merely lying to such a person is a Federal offense. (The investigator, on the other hand, is free to lie through his teeth in the course of his investigation.)

You may recall, this is what Martha Stewart was convicted of, and why she spent those months in prison, and then under house arrest.

Has it occurred to anyone how counter-productive this is? If lying itself is a crime, with no underlying crime needing to be proved, then anyone who makes a statement that later turns out to be false is in jeopardy. How are you going to investigate anything when everyone in the population decides the only safe answer is "I refuse to answer on the grounds that it might tend to incriminate me."

The Roving Rove

A thought on how to deal with Karl Rove.

It appears that somewhere along the way, Bush has been quoted as saying that he would fire the person who leaked the name of Joe Wilson's wife.

If he said that, or if the press insists on putting those words in his mouth, maybe he should simply stipulate that he did, in fact, say it. He can fire Rove.

He never said a word about how long any responsible party was to stay fired.

(Hey, if micro-parsing is good enough for Clinton...)

Valerie-gate

Hal Lindsay looks at Judith Miller's refusal to divulge the name of her source in the Valerie Plame case. He cites inconsistencies in how people are applying the First Amendment.

If there is a difference between Judith Miller's refusal to obey a federal judge and a final ruling from the Supreme Court and Judge Roy Moore's refusal to remove the Ten Commandments from an Alabama courthouse, I fail to see it.

And

Of Miller's refusal to obey the rule of law, the the New York Times had this to say: "There are times when the greater good of our democracy demands an act of conscience."

I agree. Every time I pass an abortion clinic, I believe murdering the unborn does not serve the greater good of our democracy. Nobody gave the victim of an abortionist a vote. But if I violate the law prohibiting me from exercising my conscience too close to the kill zone, my act of conscience has legal penalties.

So does Judith Miller's.

One quote, though, which really deserves to be a pull quote for the article:

And frankly, I find it stretches the limits of credulity to suggest that Judith Miller (or any other liberal reporter) would risk jail to protect a member of the Bush administration in the first place.

Indeed.