October 29, 2005
LAW: Initial Thoughts on the Libby Indictment
1. Were I Libby, I would choose a bench trial. The judge, Reggie Walton (not this guy) is a Bush appointee and was previously appointed to positions by Reagan and Bush I. I don't know much about him and don't mean to suggest he'd go easy on Libby, but that beats the heck out of a D.C. jury when you are a prominent Republican, and Jewish to boot (at least I assume Libby is Jewish).
2. Man, this is a strong indictment. I've seen perjury indictments in the past and know a little about the law in that area, and unlike the DeLay indictments, Fitzgerald has nailed down all the legal requirements here, such as detailing the precise statements and setting forth why Libby's answers were material to the investigation.
Libby is basically accused of telling radically different stories to the grand jury and to investigators than the reporters (Judith Miller, Tim Russert and Matt Cooper) told, plus his story is apparently inconsistent with what he can be shown to have known based on his conversations with various government officials, including Dick Cheney, "a CIA briefer," Libby's "Principal Deputy," Ari Fleischer, the Counsel to the Vice President, the Assistant to the Vice President for Public Affairs, and "Official A," who may or may not be Karl Rove. If you are keeping score at home, that's ten witnesses, and that's before we get to the documents (Tom Maguire suggests that even Libby's own notes may have contradicted him, and that his attorneys should have known this). If all this holds up - and given Fitzgerald's reputation, I'd guess at least most of it will - Libby is toast.
3. Oh boy, the trial is gonna be interesting unless they find a way to close the courtroom (which would trigger immediate lawsuits). Just look at that witness list. Russert, Miller and Cooper have to be the star witnesses, but if Fitzgerald's theory is that the untruth of Libby's statements is shown partly by the fact that he had prior knowledge of Valerie Plame and her status as a CIA employee, and the first evidence of that is a conversation with Dick Cheney . . . how can Cheney not be a witness in this case?
4. Of course, as everyone has noted, the indictment states that Plame's employment was "classified" but does not suggest that she was a covert agent at any time that would be relevant to any of this.
5. Libby's behavior, if as alleged, seems incomprehensible unless (a) he was reckless in his certitude that reporters would never testify, (b) he's a compulsive liar, or (c) as Andrew Sullivan suggests, he was worried that Cheney himself would get in trouble and decided to fall on his sword for the Vice President. I suspect (a) is part of the story, but I also think that, if it is the case that Cheney told Libby that Plame worked for the CIA and that started the ball rolling, Libby was indeed worried about protecting his boss, whether or not Cheney knew anything about her having ever been covert and whether or not Cheney had any further involvement in leaking her name.
6. For the record: yes, perjury and obstruction of justice are serious crimes. I believed that in 1998, and I believe it now. There is such a thing as a hypertechnical perjury charge, but this isn't it, any more than the charge against Clinton was; in each case, the witness deliberately set out to obscure facts the tribunal was entitled to know (the difference being that Libby hasn't also been charged with inducing other witnesses to lie). Good to see that many Democrats and liberals have now decided to agree with those of us who have taken that position all along (see this NR editorial).
Re: #1, I'm not sure if the ball's in Libby's court. F.R.Cr.P. 23(a) says the defendant can't have a bench trial unless the government consents; the Warren Court upheld the constitutionality of the rule in Singer v. United States. Unless something's changed since then, a bench trial is at Fitzgerald's discretion. And for the reasons you gave, he'd be crazy to acquiesce.
News reports have his name as I Lewish Libby Jr.
That Jr. suggests (but doesn't prove) that he's not Jewish.
Ashkenazic Jews don't name after the living (or after deceased parents of the baby.) Though Sephardim name after the living I don't believe that they name after the father.
You will find jr's among non-affiliated Jews but it's rare.
Just because one was part of the neo-conservative cabal that led us into war doesn't mean that one is Jewish. (That last sentence was tongue in cheek.)
Crank - Do you or any of your readers have insights into how Karl Rove spooked Fitzgerald enough to escape indictment at the 11th hour? Does this guy have evil magical powers or did he sing like a canary?
It was one thing to get GWB elected twice, but to talk Patrick Fitzgerald out of an indictment at the last minute elevates Karl Rove to true Mythological Sorcerer status.
I don't think the best defense attorney in the country could have done that. Granted I am speculating about how much Fitzgerald had on Rove, but its clear he was oh so close to being charged.
This purports to be a complete list of neo-cons, I mean Jews, in the Bush administration:
The secret cabal.
I don't think the indictment should be taken as more than it is, but it also should not be taken as less. From what I could see, Fitzgerald was very, very thorough, and did not overreach to charge anything that he cannot prove. In particular, I thought his explanation of why he didn't indict under the Espionage Act was pretty persuasive (he seemed to be saying that he could have, but felt that without more evidence of motive, it would be an aggressive interpretation of the law that he was not preparted to make).
Motive made impossible by Libby's own shenanigans. Libby's toast, but he knew that before he testified. He threw sand in the eyes of the umpire, and I think that was by design of this White House (there really is no other explanation). Outrage should be the word of the day.
Libby deserves to fry, as do all politicans who do what he did. The reason is simple: a total contempt with history. Were I president, my chief advisers would all be historians of various disciplines. Too many times have we seen the bozos at the top repeat the same mistakes (isn't that a definition of insanity?) expecting different results. The leaders who do new, unexpected things, or go in unusal directions are the ones we remember with respect: Washington, Lincoln, Polk, TR, FDR.
In other words, the cover up is ALWAYS, and HAS ALWAYS been worse than the crime itself. Or as Martha Stewart is probably thinking, "Welcome to my world."
Libby received poor legal advice or no legal advice before he started lying. He should have just told Fitzgerald that he leaked the info. Fitzgerald would never indict him for a violation of the Espionage act. Fitzgerald knows Libby's defense attorney would call Joe and Valerie and Valerie's superiors to the witness stand and the jury would see what the CIA was up to and Fitzgerald would even lose on the charges of perjury and obtruction. I'm sure Fitzgerald has nightmares about Joe Wilson being on the witness stand.
If Libby obfuscated and lied after receiving legal advice, or decided to do it on his own, then he is guilty of an even grave crimes than obstruction or perjury: stupidity. Larry Niven once wrote, "In the eyes of the universe, stupidity is a captial crime."
For no other reasons than Bill Clinton and Martha Stewart, any senior white house official, no matter the party, should realize that they can always get you for that. William Safire pointed out that Libby was not indicted on the original charge, but only in lying and obstructing something that supposedly was not a crime.
What may prove really interesting is what kind of deal he will strike when he realizes he is looking at 20 years in a Federal pen. In other words, as always with corrupt politicos: Regarding Cheney, Bush, Rummy, et. al. What did ____ know, and when did ____ know it? Hmm, haven't we heard that phrase before?
Libby would only flip if he thought he wouldn't be pardoned in January of 2009, so in his mind he's only looking at a year to two years if he is convicted. He's probably more concerned about the fines.
Hypocrisy is not the exclusive possession of liberals. In fact, I would argue that conservatives have a far better claim to hypocrisy -- e.g., uniter not a divider, compassionate consevative, etc.
In fact, tyr this link from the New Republic
Hutchison deserves the crap she got for that quote, but that's about all there is to the Chait column.