March 8, 2007
Get a Grip Mr. PresidentBy J. Peter Mulhern
Scooter Libby is a convicted perjurer because the United States Department of Justice grossly abused its power and because politics short-circuited all the safeguards that are supposed to prevent such abuses. This is one of the most appalling perversions of a civilized judicial system since France sent Alfred Dreyfus to Devil's Island because the ruling elite didn't like Jews.
If the appellate and executive review processes fail as badly as the investigative and trial processes did in Libby's case, Libby will go to a federal penitentiary because Democrats don't like Republicans. There is enough shame in this outcome to go around.
Patrick Fitzgerald is a disgrace both to the legal profession and to the human race. His partisan allies, such as Senator Chuck Schumer and certain nameless bureaucrats at the CIA, are beneath contempt. The jury was unfit for its task, because it was apparently both prejudiced and intellectually incapable of noticing that the prosecution had no case. The trial judge lacked either the wit to see a gross miscarriage of justice unfolding before his eyes or the courage to stop it. But ultimate responsibility for Fitzgerald's outrageous misconduct lies with his boss.
George W. Bush could have stopped Fitzgerald's farce at any time. He could stop it today. He doesn't even need to use the pardon power, at least not yet. Fitzgerald serves at the President's pleasure Mr. Bush has every reason to be severely displeased. The President could simply fire him and, for good measure, order the DOJ to start an investigation into Fitzgerald's misconduct in the Libby matter. President Bush could then instruct Fitzgerald's replacement to join Libby's defense in its motion for a new trial. If the court grants that motion the DOJ could then offer Libby its apologies and withdraw the prosecution. If it doesn't the DOJ could join in Libby's appeal. If that fails then the pardon power lies in reserve.
The President has ample grounds for such action. Fitzgerald repeatedly lied, both in court and out, about the nature of his investigation in a successful effort to convince the jury that Libby had something to hide. Worse yet he pursued a criminal investigation when he had no reason even to suspect that any crime had been committed. This is the core of horrible prosecutorial abuse. In this situation there can be no legally sufficient conviction for perjury or false statements.
The evidence against Libby falls far short of proving beyond reasonable doubt that he lied about anything to anyone. Differing recollections about the details and chronology of trivial events prove nothing. The Libby prosecution rested on the undefended and indefensible assumption that Libby and the rest of Washington's movers and shakers were obsessed with the identity of an obscure bureaucrat with a tangential connection to a small controversy on the fringes of important events. In reality, neither Libby nor anyone else connected with the case had reliable recall about who said what to whom regarding Valerie Plame because the subject was not particularly important to anyone until enemies of the administration at the CIA and the DOJ manufactured a criminal investigation out of it.
Diverging recollections about who said what when to whom about Joe Wilson's wife are particularly useless as evidence of perjury because nobody had any motive to lie on the subject, least of all Scooter Libby. There was nothing criminal or dishonorable about discussing Valerie Plame's identity or her job at the CIA with reporters or anyone else. There is no statute imposing criminal liability for such conversations. Patrick Fitzgerald's unsupported assertions notwithstanding, there is no information in the public domain which even establishes that Valerie Plame's employment at the CIA was classified.
It is a federal crime to transmit
"information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation" to any unauthorized person. 18 U.S.C. Section 793 (d). Valerie Plame's identity might have been remotely related to our national defense but nobody has ever had any reason to believe that the information that she was a desk jockey at the CIA "could be used to the injury of the United States or to the advantage of any foreign nation."
It is a federal crime intentionally to reveal the identity of a covert intelligence agent when the government is taking affirmative steps to protect her identity. 50 U.S.C. Section 421. But Valerie Plame wasn't a covert agent and the government wasn't trying to protect her identity. There was never any prospect of a prosecution under Section 421.
Patrick Fitzgerald fulminated in court about a cloud over the Vice President in an effort to suggest that there was something dark and sinister about administration officials discussing Valerie Plame with reporters after her husband injected her into a national controversy. That suggestion is pure left-wing fantasy.
In sum, the evidence against Libby was that his memory of the sequence and details of perfectly innocent events of no great importance differed from that of other witnesses. The judge who let this case go to the jury is one or more of the following: a nitwit, a coward, and/or a partisan hack. The jury that convicted was prejudiced, stupid or both.
But the jury did convict so why recap all this now? Because the same facts which show that Fitzgerald didn't prove his perjury charge also show that his charge was and is inadequate as a matter of law.
Fitzgerald never had any reason to believe that there was a crime to be solved in the "CIA leak case." Nothing in the U.S. code purports to make talking about Valerie Plame a crime. Fitzgerald never had any legitimate grounds for pursuing a criminal investigation because he never had even the theoretical possibility of a crime to investigate.
His own conduct strongly suggests that he knew this from the beginning. If Fitzgerald really believed that there was something criminal about revealing Valerie Plame's identity he would have filed charges against at least two defendants on the day he took over the case. Richard Armitage and Robert Novak were both guilty of discussing Plame and Fitzgerald knew it on day one. But he filed no charges. Why not? Probably because he knew that neither Armitage nor Novak nor anyone else had violated any law by talking about Valerie Plame.
Since Fitzgerald had no crime to investigate, the sole purpose of his investigation, even before it became his, was to keep asking questions until discrepancies in the testimony made it possible to convince a bent jury that somebody important lied under oath. This despicable game is a clear violation of the Fifth Amendment and it cannot result in a lawful conviction for perjury.
Prosecutors can sometimes make out a perjury case even when an investigation, undertaken and pursued in good faith, fails to produce enough evidence to charge anyone with any other crime. But they cannot legally pursue an investigation solely as a means to manufacture evidence of a process crime such as perjury. That is a form of entrapment known in the trade as a perjury trap. A prosecutor who sets such a trap is lower than catfish and twice as repulsive.
The President is responsible when his employees sink so low. When a federal prosecutor abuses power it is the President's power he is abusing. There is no indication that President Bush understands this.
More than half way through his second term the President still hasn't been able to take control of his own government. The Libby case reached its sad conclusion because the elements within both the CIA and the DOJ used some of the President's own powers to attack him. Still he does nothing.
Firing Fitzgerald would be an excellent place to start.
J. Peter Mulhern is a lawyer in the Washington, DC area.