The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

A Member of the Law Professor Blogs Network

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?

http://rightcoast.typepad.com/rightcoast/2007/03/prosecutors_and.html

| Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bf6e253ef00d834eaf1a053ef

Listed below are links to weblogs that reference Prosecutors and Abuses of Prosecution
Maimon Schwarzschild
:

Comments

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

Why did Fitz give Richard Armitage (from the State Department) a pass when he in fact is the person who leaked Valerie Plames identity (after Joe Wilson did it by publishing her in his Who's Who listing)?

The simple answer is that there was a conspiracy among CIA/State to derail Iraq war (they were probably paid off by the Baathists).

Posted by: Bruce | Mar 10, 2007 11:43:48 AM

>Bill Clinton was never tried of perjury. An investigation is much different than being charged and convicted.

He was tried in the Senate of perjury. Impeachment may not be a criminal proceeding, but I'm pretty sure it's considered a trial.

>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.

Like the Stewart case, it seems that the prosecutors, when they couldn't build a case about the underlying crime, decided to create a perjury case by trapping them in a lie. It's not hard. Almost of the witnesses in the Libby case showed some level of faulty memory and there is also the Rashomon effect. Nobody has a perfect memory and I'll concede it's possible that Stewart and Libby indeed fudged out of wariness, but it seems that both cases involve prosecutorial petulance. I'm no fan of Martha Stewart on many levels but I think she got screwed. She was essentially accused of saying that she was innocent. Considering they couldn't make a criminal case strong enough to indict her, was it wrong for her to say so?

In both cases the prosecutors knew who really was 'guilty'. In the case of Stewart, they had Sam Waskow, and he's currently in prison. In the case of Libby, they had Armitage, but they gave him a pass because Valerie Plame wasn't covert.

Prosecutors are the most dangerous part of the system. Notwithstanding all the probable cause and evidence, it ultimately comes down to one person's discretion to prosecute or not. Add grand juries to the mix and that's an enormous amount of power to give to one person. Since nobody is completely righteous, if a prosecutor wants to make your life a living hell, it's going to happen.

Posted by: Johan Amedeus Metesky | Mar 10, 2007 11:44:29 AM

DWP had the money quote: "while a probe's subject is assumed to be lying." The problem here is that Libby was the probe's subject, for purely political reasons, while he was being told that the subject would be "the original criminal leaker" -- which was a double falsehood in that the leak was not a crime and Armitage was the original leaker.

This lead Libby to figure that it would be ok to ramble on casually for 8 hours to a Grand Jury without his (subpoena'd and held by Fitz) notes, because nothing he could do or say could make him guilty of a crime for the leak, and nothing he could do or say could make him the original leaker.

Posted by: cthulhu | Mar 10, 2007 11:45:00 AM

Selective memory at work here. Starr obtained over a dozen convictions/pleas to felonies - including jail time for a sernor Justice Department official and Clinton's successor as Governor of Arkansas. The Clinton's amended their tax returns three times while the Whitewater investigation was going on, and it wasn't because they were entitled to a refund. Clinton was not impeached for lying to the nation in a nationally teievised address, although he did, but for repeatedly lying under oath and obstructing justce - read the Articles of Impeachment.

Posted by: bigjim | Mar 10, 2007 12:12:11 PM

While everyone opines on all sorts of things, Libby was found GUILTY, and, surprise, surprise, he was.

Posted by: lk | Mar 10, 2007 12:58:11 PM

>[Clinton] was tried in the Senate of perjury.<

Not very hard, though.The Senators greeted the House presenters by rolling their eyes at each other and the media and saying "kids these days...."

Posted by: PersonFromPorlock | Mar 10, 2007 1:05:46 PM

Here is a contest for you: Take a case where you know you aren't guilty, say of being the one who "outed" someone who there is no rule about writing her name on a billboard, someone like, oh I don't know, how about a CIA mid-to-high lever analyst. Oh, let's call her Flame.
Okay, you KNOW that publicizing that name is no crime and that you were not the one who did it anyway. Now, talk to the Feebs more than once, without Counsel. Then, months later go before a Grand Jury, again without Counsel and without notes. Why no notes? The prosecution has them. You don't care, though, because you are not the one that outed a person that there was no crime involved in outing her, anyway.
That is Libby's situation. Did he lie or was the whole thing not important enough for a busy man to fix every last detail in his memory? There are hundreds of crimes per minute. The only thing I know for sure about them is that I did not do them. Yet I talk to people all the time, sometimes about these crimes. Now, according to the Feds I must remember every detail of every conversation?
It would be a joke except that a man's life is ruined and his family impovrished.
Four felony convictions. Ever wonder why there are so many lawyer jokes?

Posted by: Peter | Mar 10, 2007 1:10:03 PM

Clinton was not found guilty of purjury. The judge (Susanne Wright, IIRC) found him guilty of contempt for lying in his testimony. That was the reason he was disbarred.

Posted by: Tank | Mar 10, 2007 1:11:29 PM

I just wonder how an investigation can be obstructed when the person who leaked the name was known to the prosecutor before the investigation even started. It was Fitz fishing for crimes --- Armitage not being indicted is proof of that.
-=Mike

Posted by: MikeSC | Mar 10, 2007 1:34:01 PM

Does it seem somewhat ironic that we are prosecuting politicians for lying? Should the rest of Congress be worried?

Posted by: Chris | Mar 10, 2007 2:24:50 PM

Lots of commenters on the liberal side of the fence seem to think Libby's conviction proves he's covering up wrongdoing on the part of the administration, and that they should be next on Fitzgerald's hit list. Can somebody explain what their reasoning is? After all, he supposedly lied about his involvement in outing Plame when *he didn't out Plame*. Besides, if said commenters really believe Armitage outed Plame *on Bush's order*, why aren't they calling for Armitage's head?

Posted by: randian | Mar 10, 2007 3:05:38 PM

Posted by: USD Law Student | March 08, 2007 at 06:32 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.

As Virginia Postrel pointed out back in 1998, it was the Democrats -- and their allies -- who "criminalized" Clinton's behavior.

The Republicans were just too eager to use the power given to the government.

http://www.reason.com/news/show/30591.html

"License to Grill. How the Clintons invited Ken Starr into their private lives."

Reason. April 1998

Posted by: Nobody Important | Mar 10, 2007 4:09:01 PM

And don't forget purjury is not at all the same as lying.

Although they may be equally contemptable.

Posted by: M. Simon | Mar 10, 2007 5:18:56 PM