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.