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Thursday, March 8, 2007

Prosecutors and Abuses of Prosecution
Maimon Schwarzschild

David Frum has been posting regularly, and indignantly, on the Libby show trial/witchunt:

Scooter Libby is publicly branded an oath-breaker on the basis of diverging recollections. Yet it was the man who set this case in motion, former ambassador Joe Wilson, who was caught in lie after lie by the Senate Intelligence committee.

Now we remember why Democrats are so much more eager than Republicans to criminalize politics: Because they know that the ultimate power over the lives and liberties of the contestants is held by juries drawn from the most Democratic jurisdiction in the country. Would Scooter have been convicted - would a prosecutor ever have dared to try him - if the capital of the United States were located in say Indianapolis?

It all makes you think: President Bush should have pardoned everybody involved in this case on the day Patrick Fitzgerald sent Judith Miller to jail. But it's not too late: Pardon Scooter Libby now.

There is much more at David Frum's Diary.  Just scroll down.

A broader question: To what extent do Democratic-leaning prosecutors around the country root for a prosecution - and a conviction - like this?  For that matter, to what extent are prosecutors around the country indifferent to a frame-up like the Duke "rape" case?  And what are the implications for the integrity of the criminal justice system?

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Maimon Schwarzschild


I'm almost certain Fitzgerald is a republican. Libby lied to a grand jury and his testimony was directly contradicted by eight witnesses. He is a perjuror.

Posted by: USD Law Student | Mar 8, 2007 6:32:49 PM

"Now we remember why Democrats are so much more eager than Republicans to criminalize politics" This statement, by the way, is not true. All one must do is remember the 3 year Kenneth Starr investigation to tell that this is false.

Posted by: USD Law Student | Mar 8, 2007 6:34:46 PM

Perhaps the better lesson is that integrity and descretion are not the primary components of what prosecutors themselves believe their job desciptions to be, but they are rather untested presumptions and afterthoughts.
Fitgerald is a Republican. Nifong is a Democrat. Once the Boxer sinks his teeth in, he sees nothing else and does not let go.
The D.C. jury has already revealed thmeselves to be pretentious fools. On to television they go, like moths to light, and even swifter than the O.J. mob.
I am afraid of your profession, at every level. This is what happens in any field of endeavor where the effect of what you put out cannot equally come back upon you. At least Libby is a lawyer. In that, he is not innocent.

Posted by: james Wilson | Mar 9, 2007 8:17:31 AM

USD law student- I think your memory is slightly incorrect. Bill Clinton was never tried of perjury. An investigation is much different than being charged and convicted.

Posted by: Mike | Mar 9, 2007 8:45:10 AM

I have seen more of the shift in thought process of many prosecutors, from doing justice (with a fair degree of self ethical enforcement) to winning each case charged. Not that abuses haven't always occurred, but the restraint on excess is lessened lately.

Posted by: km | Mar 9, 2007 12:26:07 PM

It has always seemed to me Fitzgerald was spot on. The prosecution of Scooter was not about the outting of Plame. It was about exactly what he was convicted of--lying after he took an oath stating that he wouldn't lie.

This case is exactly like the Martha Stewart case. If she wouldn't have lied, she probably would have never have been prosecuted for anything. Same with Scooter Libby.

Frum waves his hands all over the place to distract attention from Scooter's misdeeds. Assuming that Wilson lied to Congress, it is irrelavant to whether Scooter lied to a grand jury. If Fitzgerald were in Indianapolis, would that change whether Scooter lied? Nope.

Frum minimizes the fact that there were different recollections as to what was said when. Well, that is pretty much the case in every single perjury case that makes it to trial. Frum surely can't be saying that people shouldn't be convicted if two persons recollections differ, can he? If that were the case, then no jury could ever convict anyone of crime.

Frum seems to ignore the fact that twelve average folks were convinced beyond any reasonable doubt that Libby lied regarding a material fact.

The question of whether Fitzgerald exercised his discretion appropriately in prosecuting this case is a separate question from whether he did it.

If one feels that the grand jury system is valuable and its integrity should be protected, then the prosecution is appropriate. If one thinks folks like Fitzgerald should be prosecuting drug dealers instead liars, well, OK. But Bush cannot pardon Scooter without indicting the value of the grand jury system.

Everyone lies at one time or another. But, if there is any time where you should stick to the truth it's when you are testifying to a grand jury.

Posted by: David Brayton | Mar 9, 2007 4:13:54 PM

Mike, At no point in my comment did I say that Bill Clinton was tried for perjury. I mentioned the Kenneth Starr investigation to demonstrate that Republicans are just as eager as Democrats to criminalize politics when they can. The fact that the eagerness of Republicans was not rewarded with substantial criminal charges against white house officials in the Kenneth Starr investigation does not mean they weren't eager to find some.

Posted by: USD Law Student | Mar 10, 2007 2:51:50 AM

Most of you are begging the question. Of course, now that he has been convicted, we don't have to say that Libby is an "alleged" perjurer. And I agree that perjury ought to be taken seriously as a crime.

However, I continue to think the case was shockingly weak, in that it rested on the assumption that one cannot have a crappy memory of a series of phone calls among thousands, recalled months later. Or worse, that journalists called as witnesses can legitimately have crappy memories, while a probe's subject is assumed to be lying.

Posted by: DWPittelli | Mar 10, 2007 10:44:50 AM

What was Libby's motive for lying? If, as convicted, he really was lying, then there should be a reason he did so - and it should be pretty important. Either this case went too far (if Libby was not lying) or not far enough (if he was). One way or another, where it ended is not right.

Posted by: Glenmore | Mar 10, 2007 11:05:10 AM

USD Law Student: "I mentioned the Kenneth Starr investigation to demonstrate that Republicans are just as eager as Democrats to criminalize politics when they can."

It seems to me you are confusing the prosecutor's motive and the alleged criminals' motive.

First, which part of the Starr investigation are you referring to? An investigation of financial corruption, which later includes an investigation of perjury in a civil case, is not the criminalization of politics. You may believe that Starr's underlying motive in seeking a prosecution was largely political, but the crimes themselves were personal, not political, and against laws to which we are all subject.

Second, the Fitzgerald investigation was of (alleged) crimes that were political. Which is not to say that the Fitzgerald investigation was illegitimate. Clearly political crimes can be as serious as personal ones (e.g., Watergate was not because Nixon was personally a crook; the Watergate break-in was intended to give Nixon political advantage). But bugging political opponents was clearly a crime in 1972 (albeit one used by Johnson et al), subject to significant penalties. In contrast, it is less than clear that outing Valerie Plame was a crime, especially as no attempt was made to prosecute or even get a light plea from Richard Armitage.

You point out that Fitzgerald was Republican, apparently as some evidence that he must have been fair, a reverse ad hominem. But apart from the weakness of ad hominem arguments, we must note the repeated tendency for special prosecutors to expand their investigations and make prosecutions that no ordinary prosecutor would attempt, and we also know that Libby has a history with both Judith Miller and Libby, the two people he came down hardest on.

Posted by: DWPittelli | Mar 10, 2007 11:09:53 AM