Beldar on York, McCarthy, and Bennett on the Libby verdict

Bill Bennett's radio show this morning (hat-tip: K-Lo on The Corner) featured two very smart and very knowledgeable pundits, Andy McCarthy and Byron York, discussing the Libby verdict. There may be an actual transcript available somewhere by now, but I was sufficiently interested in their points that as I was listening to the replay, I made a rough transcript, which I'm posting here as a jumping-off place for some of my own, and my readers', further comments.

Note that this is my paraphrasing of the interview, rather than my having attempted to quote its participants exactly, so even with respect to words or phrases I've placed in quote marks, there is a large risk of inaccuracies.

And since this is my blog, I've indulged in the fiction that my own punditry on these topics might be interesting to others, so I've added my views in green. (The relative amounts of green and black text demonstrates that my blog bandwidth is almost unlimited compared to talk radio shows' air-time.)

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York:  Best grounds for a pardon: (a) No underlying crime.  (b) Lots of other people had difficulty testifying; forgot significant things. (c) Everybody inside the bureaucracy was talking about Wilson and Plame, "everybody does it."

Beldar: I don't agree on (b), and I think this is the weakest argument that Libby's lawyers or defenders have made. That other people, including witnesses in this case, may have bad memories or forget important things is self-evident. By itself, that tells us nothing about whether bad memory is really the explanation for the inconsistencies between what Scooter Libby said at different times, or between what he said and what others said.

The case focused, appropriately, on him — on his memory and intellect and state of mind; on the relative importance to him, in his particular circumstances, of the things he claimed to have been paying close attention to (or not); and on the likelihood that he, in particular, could have forgotten these particular facts when speaking to the FBI or testifying before the grand jury. His lawyers understandably wanted to focus on others' memory gaps, not just to impeach the credibility of other witnesses (like Russert), but to continue to drum home the basic point that "all human memory is frail." But the jury apparently found other witnesses' memory to be reliable on the key points.

Memory failures do happen all the time. And oftentimes conflicts in testimony aren't due to lies, but due to either memory failures, or differing vantage points from which facts were observed, or different levels of appreciation by the observers. (I wrote a long post urging that one must be careful about "brandishing 'the liar finger'" back during the SwiftVets controversy.) Nevertheless, pointing out that others had memories failures says nothing about whether Libby actually did. That was the key issue, on which Libby — the key witness, the only witness who could provide direct (rather than circumstantial) evidence — never testified, by his and his lawyers' own choice.

McCarthy:  Sometimes the exercise of prosecutorial discretion assumes that a crime has been committed, but nevertheless, the equities balance out in favor of not charging.  If maybe the charge should not have been brought in the first place, or if it's unclear whether it should have been brought, that may be a powerful basis for a pardon.  There's a strong case to be made that this case shouldn't have been brought, or that it was only brought because of the political furor. What Libby did here may have been a terrible wrong, but there are competing arguments, like the danger of criminalizing politics-as-usual. If I were president, I would expect to see some contrition before granting a pardon. It's unfortunate that a lot of Libby's supporters are ignoring the jury verdict. Our system depends on people telling the truth. But there are many reasons to think he was unfairly singled out, not the worst wrong-doer.

Beldar: I agree with Andy that this is probably the most troubling thing about the prosecution, and probably also the best single ground for a pardon. Certainly but for the political furor, an ordinary prosecutor in an ordinary investigation in which he'd already determined that there was no underlying crime might have declined to prosecute. He might have done so even though, as here, the false statements were from a public servant, and even though they went to the heart of the matters being investigated.

But one thing that prosecutors should, and do, consider when they make discretionary calls like this is how it will affect public perceptions of justice, and sometimes, as here, that includes political considerations. In terms of likely public suspicion over a refusal to indict, this case was at the very far extreme of the spectrum. Similarly, a pardon from Dubya would probably be intended to mean, "This is a good man, and these were small potatoes." But it would likely be read, fairly or not, as Dubya saying "demands for justice, when they're made by Democrats or opponents of my administration, count for less." And just as Fitzgerald didn't want to feed that perception by exercising his discretion not to indict, it's entirely possible that Dubya, even leaving office, may not want to feed that perception through a pardon.

York:  Jurors felt that they had to convict Libby because he lied, but they also felt that there was something funky about the case.

McCarthy: There are two different situations where you can say a prosecution shouldn't have been brought:  (1) Complete miscarriage of justice, like the Duke case; and (2) a situation where reasonable minds can differ.  Fitzgerald got the case in December 2003.  By then Libby had already spoken to (and per jury, lied on one occasion) to the FBI agents.  You always have to ask, What are the competing concerns?

York:  Case was extremely political from the beginning.  Wasn't much outrage after Novak article.  Wilson drummed it up.  Democrats were saying Ashcroft was conflicted.  It would have taken a profile in courage for the Bush Administration to say, "We don't need a special prosecutor."  But there would have been a huge political outcry even if the regular DoJ staff hadn't brought any indictments.

McCarthy:  Agrees with Bennett that it's not unprecedented for prosecutors to pass on indicting for false statements to FBI investigators.  It's a very fact-specific decision whether to charge or not.  If it's a public official, that's usually something that doesn't get overlooked.  You look at how important the lie is to what is being probed.  Even intentional lie on immaterial matter might be overlooked.  But if it goes to the heart of what's being looked at, you don't overlook it.  With Clinton, the lie wasn't about an underlying "crime," but it was about a civil sexual harassment claim (which many think ought not be a matter of federal law anyway); the lie was still significant, but it didn't relate to the core of his presidency. McCarthy agrees that this is an effective analogy, i.e., this is on a par with Clinton's lies. But it's still small potatoes, though, compared to other recent leaks made to reporters on national security matters, or to the Sandy Berger case.

York:  When we learned Armitage was the leaker and Rove was the confirmer, we wondered why this case went forward. But during the trial we learned that Russert told the FBI in November that there was a conflict between Russert and Libby. NBC was fighting subpoena, but FBI already knew his story. Re Clinton, from 1994-1998 there was a Whitewater investigation that was pre-Lewinsky, arising out of conviction of McDougals and sitting governor of Arkansas, and question was did Clinton testify truthfully at that trial. Because of insanity of independent counsel law, that investigation ended up making several diversions, but it did start with a crime, not just a private civil lawsuit.

McCarthy: Clarifying, I strongly supported the Clinton investigation. Unlike Libby, Clinton used the enormous powers of his office to obstruct justice. Proportionally, Libby misled the grand jury, but there's no indication that he or the Bush Administration used their power to obstruct the case; the opposite is true.

McCarthy (responding to call-in questioner): The lies were about his account to the grand jury of what his contacts with a couple of the reporters had been.

Bennett: Not as a lawyer, but as a moral philosopher, can I say there's a difference between that and flat-out lying about what you did with Paula Jones?

McCarthy and York: (Skeptical noises.)

York: The flimsiest charge was on the conversation with Matthew Cooper, "reporters are telling me about Mrs. Wilson, but I'm not sure if it's true."  He was acquitted on this count. But Libby said Russert conversation was Russert telling Libby about Wilson and then Russert saying "All the reporters know about Mrs. Wilson," and Russert said that didn't happen, and couldn't have happened because Russert didn't then know about Mrs. Wilson's CIA status.

McCarthy: These are "verbal acts"; the conversations ARE the crime because it's a leak investigation. On the level of criminal acts, these really aren't all that different from Clinton's situation.

York: The Clinton White House and its allies used executive privilege, as well as a bunch of other privilege claims that were entirely bogus, to try to obstruct that investigation.

Bennett: Still doesn't agree that there's a moral equivalence between Libby and Clinton.

Beldar: This highlights another reason why I still want to hear from Libby's own mouth his explanation for the inconsistencies. Libby's motivations to lie are still the most unclear part of the case to me. If there is a moral equivalence, it would come from Libby's motivations, and without understanding what those really were, I can't make that determination. Note, however: You can't talk about "moral equivalents" at all unless you first presume (or assume or treat as established), with respect to Clinton and Libby, that both were indeed committing perjury.

York: If Libby had said "I don't recall," he'd have been okay. Vernon Jordan seemed not to even remember his NAME in his Clinton grand jury testimony.

Beldar: I am extremely uncomfortable with this suggestion for two reasons. First, it's a fairly explicit suggestion that people ought to lie, rather than to cooperate with law enforcement authorities, on grounds that it would be a hard-to-prove lie, and by telling it you could avoid a significant risk. There is indeed some risk that a law-abiding citizen who tells the truth to the best of his ability might somehow end up being unfairly convicted of perjury, but for most of us in most all situations, that is an exceedingly small risk. Perhaps if one of the major political parties is raising a huge ruckus about you and you already have a target on your back, the odds of that happening are higher; but then you ought to take the Fifth, not lie. Otherwise, honesty is still the best policy as a general rule. Second, "I forgot" does not make you bulletproof even as a practical matter. Libby's defense — basically, "When I testified that I first learned Fact A on Date Y, I had just forgotten that I actually had learned Fact A on an earlier date, Date X" — isn't really very different from a straight-up "I forgot" defense. The way the prosecution makes a perjury case in either situation is by accumulating enough circumstantial evidence to compel an inference, beyond a reasonable doubt, that the particular witness really didn't forget. And that's exactly what Fitzgerald did in this case. He was helped tremendously in doing so because the jury had nothing else but circumstantial evidence — again, because the only witness capable of offering direct evidence on Libby's memory and state of mind, that being Libby himself, deliberately chose not to take the stand.  

York: Everyone in the news room was wondering how the reporter got on the jury. Answer is that the Libby team only had so many strikes, and there were other people who were worse. Judge wouldn't dismiss for cause.

McCarthy: You've got to convince judge that prospective juror can't be impartial to get him disqualified.

Beldar: With the exception of a genuine small-town situation where everyone in town knows all the witnesses and you simply can't find prospective jurors who don't, I've never encountered a judge who wouldn't have excused this potential juror for cause. If this judge didn't, and a proper objection was made and preserved, that might be a pretty good appeal ground, even though trial judges have broad discretion on making such decisions and appellate courts are reluctant to reverse on these sorts of grounds. I agree that it's absolutely amazing that this guy made it onto the jury. But then I'm also amazed if, as I've read elsewhere, there were three PhDs and a lawyer on the jury, and I'm surprised that on a jury chosen from the District of Columbia there were apparently only two blacks. I honestly don't know what to think about all of this.

(In the HuffPo piece, the journalist-juror, Dennis Collins, wrote: "Though our resident [juror who's also a] lawyer insists she's only another juror, her great recall of testimony and ability to explain legal language is invaluable." That certainly reaffirms my own long-standing rule to never, ever, under any circumstances, ever, period end of paragraph, accept a lawyer as a juror, no matter how badly I want to use my strikes on others. Regardless of what kind of case it is or which side I'm on, I do not ever want another lawyer, one with the credibility of "just another juror," arguing my case in secret and after I, my opponent, and the judge have all finished!)

McCarthy: Memory expert testified in preliminary hearing, but she wouldn't have been an effective witness for Libby. Fitzgerald got her to admit they'd never met, but then it turned out he'd cross examined her a year earlier.

Beldar: There is almost no chance that the verdict will be reversed based on the judge's failure to permit an expert to testify to the fact that people sometimes forget. That's silly. Even aside from the particularly brutal cross-exam Fitzgerald was able to do on this witness, I think that every additional witness that the defense called to talk about the frailties of memory in general, or Scooter Libby's memory in particular, would have further highlighted the fact that Libby didn't take the stand.

York: We don't know in the grand scheme that Russert didn't lie, but the jury [and York] both found that he was believable.  Defense tried to make the case (but at times faltered with it) that nobody was really lying, but that this was a case of conflicting memories.

McCarthy: Acknowledges that Fitzgerald is one of his best friends.

York: Lots of comments that if Libby had had his current representation when he was being interviewed by the FBI and testifying before the grand jury, instead of his original lawyer (his law partner named Joseph Tate, who wasn't a specialist), he might have done better.

McCarthy: Yeah, the best defense lawyers beat their clients up pretty hard before they go before a grand jury, not only to make sure that they're telling the truth, but to make sure that they have a consistent version of their story.

Beldar: This is an interesting line of speculation, but without knowing the particular lawyers involved, I can't comment. And without knowing what was actually said within the veil of attorney-client privilege, speculation is probably pointless anyway.

McCarthy: Re the juror who's put up piece on Huffington Post: Probably not a good ground for new trial or appeal. Courts have a bias against getting inside the jury deliberations, and his journalist status was fully disclosed during jury selection.

York: HuffPo paid him nothing. He may still be angling for a book deal.

McCarthy: He wouldn't be the first juror to do a book deal. No action is likely against Armitage; he actually went to the authorities. But it's curious that Armitage only said he'd leaked to Novak. Didn't mention having also leaked to Woodward until after the indictment, after which Fitzgerald had already made wrong statement at the indictment press conference.

Beldar: I'm intrigued by this. My guess is that Fitzgerald decided not to indict Armitage based on a determination that given his admission of having leaked to Novak, his failure to mention his also having leaked to Woodward would make that failure an "immaterial" lie at worst. I don't know if the FBI investigators' notes of Armitage's interview are in the public domain, but they'd certainly be interesting to see. Nevertheless, even if Armitage committed perjury, that wouldn't excuse Libby from committing perjury. And even if Armitage caught a break in terms of the exercise of prosecutorial discretion that Libby didn't catch, there have always been, and will always be, apparent instances of unfairness in any system that includes individual discretionary decisions.

Bennett: No underlying crime here. Compare that to national security programs (secret prisons, phone intercepts, Treasury Department funds program) that reporters have blown based on leakers; Justice Department does nothing. Is this disproportionate?

York: INSANE disproportionality. The issue is damage to national security; there was none here.  Those other things really hurt the US' relationships with the countries that were helping us out.

McCarthy: That nothing was done on other cases doesn't make Libby prosecution wrong.  But that is okay for the President to consider on pardon application, even if it didn't deter Fitzgerald on decision to indict.

York: Presumably DoJ has done something about these other leakers, but they haven't done the "smash-mouth" technique used by Fitzgerald of requiring government employees to give waivers releasing reporters from their obligations to maintain confidentiality.  Why hasn't that been used in these other cases?

McCarthy: If special counsel was merited in this case, it was because of the specter of the administration investigating itself.  In other cases, should just be normal DoJ staff.

Beldar: Ditto for all this. I'd actually like to see this "smash-mouth technique" used much more aggressively in leak investigations, pretty much any time the leaker's identity can't be readily determined through means other than asking the reporter. I agree 100% that there are big, big potatoes that haven't been peeled yet. I would note, however, that Fitzgerald is also in the process of investigating and perhaps prosecuting a genuinely big-potato leak case involving press sources tipping off Islamic terrorist fundraisers (posing as Islamic charities) before an FBI raid, and I presume he'll be as diligent in that as he has been with Libby. More power to him, and let's hope others within DoJ are as diligent in some of these other leak matters. See also Bill Bennett's post to this same effect, also on The Corner today.

York: Next step will be up to Democrats in Congress if they want to investigate this further, e.g., via Conyers' committee hearings.

McCarthy: That would be excruciating, but politically, it would be the best thing possible for the Republicans.

Beldar: This is apparently already underway. There's no shortage of ironies in L'Affair Plame, but the next one may be Prosecutor Fitzgerald stonewalling Congressman Conyers on Conyers' attempts to compel Fitzgerald to testify about matters protected by the DoJ's prosecutorial/work product privileges. As in: "Conyers: Why didn't you indict Rove? Fitzgerald: I'm sorry, Mr. Chairman, but I must respectfully refuse to answer that question." Followed by Fitzgerald and, probably, AG Gonzales as respondents in a contempt-of-Congress proceeding. Man, I'd pay for a front-row seat at that circus!

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UPDATE (Fri Mar 9 @ 9:20am): It's not Conyers, it's Waxman.