The Libby verdict

I've blogged a whole bunch on the subject of various journalists, especially Judith Miller, who've claimed  in connection with the Plame affair that they were entitled to an absolute privilege against testifying about their communications with confidential sources. But comparatively speaking, I have not written very much about the underlying investigation, and I don't think I've written anything at all about the Libby trial itself. That's been deliberate on my part. Others in the blogosphere and the mainstream media have provided an incredible amount of detailed reporting and thoughtful analysis during the trial. I simply didn't feel that I had anything particularly wise or important or clever to add.

That's probably still true, but I've gotten a few emails encouraging me to get back to regular blogging in general, and asking me to comment on the Libby case in particular. So now that there's a verdict, for what it's worth, and as a start:

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Way back in October of 2003, I wrote at considerable length in favor of the appointment of a special counsel, explaining in the process the difference between "special counsel" and "independent counsel." Back then, of course, before Patrick Fitzgerald had been appointed (I was suggesting Rudy Giuliani for that role, in fact), all of the focus was on whether there was reason to believe that a crime had been committed in the "outing" of Valerie Plame. (I took no firm position on that subject then, although I did say that "my gut hunch continues to tell me that there is less to this whole affair than meets the eye.") No one could know back then that the only eventual indictments would focus on statements and events from the investigation process. Nevertheless, the paragraph from that post that jumps out at me today is this one (italics in original):

Even if you think (as I do) that Ambassador Wilson is a bozo, you probably hope (as I do) that his wife and any agents she may have run or contacts she may have made are all safe from retribution by enemies of the US.  But the crime — if one has been committed — was against the people of the United States.  There would be genuine value to the republic in reassuring its public that possible spy-outers are taken very, very seriously during wartime, and that political connections cannot shelter any such criminals.  Dubya's administration has always had an anti-leak passion that dates back to his personal fury at leakers who undercut the GHW Bush Administration for fun and profit during 1989-1993. A nationally televised perp-walk would be a very good thing for the war effort if there are indeed grounds to believe — after a more detailed investigation than can be done in the popular press and the blogosphere — that a crime has in fact been committed here. We can warm up the cell in between Jonathan Pollard and Aldrich Ames, perhaps.

In retrospect, I was obviously naïve about how much purposeful and authorized leaking was being done by high officials within the Bush-43 administration. And the Libby conviction today ends up not relating very much at all to anything regarding the global war on radical Islamic terrorists. Nevertheless, I'll stand by the central theme of that paragraph: There is indeed value to the republic in reassuring its public that even such crimes as perjury and obstruction of justice, during wartime or not, are taken very, very seriously, and that political connections cannot shelter any such criminals.

A jury has now pronounced Scooter Libby guilty. Its verdict, and the actions of the trial judge that led up to its verdict, will be scrutinized through the normal and scrupulous process of a motion for new trial and then appeals, and one must allow for the possibility that the verdict will be set aside. Others who have more expertise than I do in federal criminal procedure and who have been following the trial more carefully than I have would be in a better position to make informed predictions about the likelihood of that. But for today, anyway, subject to that possibility, Scooter Libby has been found guilty of crimes that are still serious ones — even if they're not as dramatic, or as cosmically significant to national security, as what Aldrich Ames or Philip Agee did. And if, indeed, the guilty verdict stands up after post-verdict proceedings and appeals, then he ought to be punished.

I have two additional observations, neither of which are particularly profound or unique, but that I will nevertheless offer up for what they're worth. The first relates to the change in my own thinking about how the verdict probably ought to turn out, and the second relates to the possibility, now being widely speculated about, that Dubya might grant Libby a presidential pardon.

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I'm saddened by the conviction because I support the Bush-43 administration, and I wanted to believe that none of its top officials would ever have committed the type of crimes of which Libby has now been convicted. And in October of 2005, I was struck by the poetic eloquence of Libby's letter to Judith Miller in which he urged her to end her defiance of the grand jury subpoena and to cooperate in giving her testimony. That seemed to me to be something that someone who knew he was guilty would be unlikely to write.

But the one fact that jumped out at me amidst all the other details of the trial was the decision by Libby and his defense team that Libby would not take the witness stand to testify on his own behalf. Prosecutors are not permitted to argue to juries that one's assertion of his constitutional right against self-incrimination is an indication of one's guilt. I don't know whether this jury actually did draw any adverse inferences from Libby's failure to take the witness stand.

Nevertheless, a defendant's failure to take the stand is the proverbial elephant standing there in the room that everyone must pretend to ignore. Whether this jury did or not, you and I are indeed free to draw adverse inferences. And the inference I draw is that Libby's defense team — who certainly must have spent countless hours previewing what his testimony would be, both on direct and on cross-examination — must have concluded that the risks from his taking the stand were not worth the benefits of him doing so, and that him taking the stand was likely to hurt his defense rather than help it. Put even more bluntly: Libby and his lawyers must have jointly decided that his own testimony at trial was more likely to convict him than to acquit him.

The inference here is strengthened by two other factors: First, the defendant's own knowledge and intent and state of mind are especially crucial in perjury and obstruction of justice cases; the obvious witness to negate those charges, or at least to raise a reasonable doubt about them, is the defendant himself. Second, the  most common reason why defendants decline to take the stand in their own defense is that it will expose them to impeachment via facts that would be otherwise inadmissible. Typically the impeaching fact is a prior conviction, about which the jury would never be advised but for the defendant's decision to take the stand. But Libby had no such worry that his defense would be prejudiced through such exposure. So his and his lawyers' concern had to be with how he would hold up on cross-examination specifically with respect to the facts pertaining to these charges.

A genuinely innocent man — a man with no criminal history (and indeed, a superb record of accomplishments), an articulate man who himself is a skilled attorney who is unlikely to be trapped by unfairly clever cross-examination, a man who is confident of his innocence and his ability to demonstrate it — ought to have taken the witness stand to deny the charges against him.

And Scooter Libby ... didn't.

A man whose inevitable demeanor and presence on the witness stand, whose fundamental and unalterable and obvious nature, was completely inconsistent with the main theme of his defense lawyers — that theme being that he has a poor memory, and that he was so preoccupied with other matters that he simply forgot who told him what and when, or who he told what and when — would not take the stand.

And Scooter Libby ... didn't.

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With respect to the possibility of a presidential pardon, I think all of that speculation is vastly premature. There is no doubt whatsoever that such a pardon would create a firestorm of public opinion that would further undercut such political capital as the Bush-43 administration may still claim. It's altogether possible that Libby's post-verdict motions and (assuming they are unsuccessful) appeals will not have run their full course before January 2009. He's likely to remain free on bail while his appeals are pending. There is no realistic possibility that he could return to a position in the Bush-43 administration even if his conviction were set aside, and certainly not if he were pardoned. So even if one indulges in the assumption that Dubya thinks Libby ought not be punished, there still is no good reason why Dubya would not wait until the closing moments of his term as president to issue a pardon.

Moreover — and I admit that I may again be naïve in thinking this, but I do think it — I'm not convinced of the premise: I'm not yet persuaded that Dubya does think that Libby is deserving of a pardon, nor that he will come to that conclusion over time. It's entirely probable that, as a White House spokesperson has already announced, President Bush is saddened by the conviction. He certainly cannot be happy about the collateral damage to his administration, and in particular to Vice President Cheney, from the conviction. (The Office of the Vice President has issued a terse statement that Cheny is also saddened by the verdict, but will otherwise not be commenting pending further proceedings.) But I continue to believe that one way in which Dubya is the "anti-Clinton" has to do with his personal character. It would be contrary to that character for Dubya to pardon Libby if his post-verdict motions and appeals are unsuccessful, just as much as it would be consistent with the poor character of Bill Clinton to issue such a pardon. I believe that non-lawyer Dubya is as committed to the concept of the rule of law as lawyer Clinton was contemptuous of it.

If Libby is guilty — and right now, he's no longer presumed innocent, notwithstanding the chance that the guilty verdict may still be set aside — then he ought to be punished. I just don't think Dubya will get in the way of that process, even if he may be sympathetic to Libby on a personal basis (as, apparently, at least some of the jurors also were).

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UPDATE (Tues Mar 6 @ 6:30pm): I'm singularly unpersuaded by arguments — like those made over on the Corner by Mark Levin — to the effect that crimes of the sort that Libby has now been convicted of shouldn't ever have been prosecuted. Does that not smack of all of Bill Clinton's defenders who tried to excuse his perjury before a grand jury on grounds that it was okay to lie about sex? That Wilson is a lying bozo, and that there was no crime connected with the "outing" of his wife, did not authorize Libby or anyone else to lie in sworn grand jury testimony or to obstruct the path of prosecutors as they reached that conclusion!

Instead, I find myself mostly in agreement with former federal prosecutor Andy McCarthy's take on these events:

... The administration had every good reason to refute Wilson — it was essential for the public to be told that what Wilson said in his op-ed was disingenuous; but I wish administration officials had done that openly and without apology, rather than in confidential leaks to reporters.

All that said, though, there was an investigation, and nobody, especially public officials, should lie to the grand jury or to investigating police. We can't (or at least we shouldn't) take the position that the obligation of truth-telling applies only to the investigations we approve of — especially when we live in a country where you are privileged to decline to answer any questions. What Libby did here was not the worst wrong in the equation, but it was still wrong.

The exception is that I don't agree with Andy's suggestion that there should never have been an investigation in the first place. I continue to believe that to rule out even any remote appearance of impropriety, the appointment of a special counsel was appropriate, and an exceedingly thorough investigation had to be made even if, as was probably true here, the prosecution would have exercised its discretion to wrap things up sooner but for the political overtones of the case. Fitzgerald had to be meticulous lest he be accused of being part of a whitewash. It was apparently Libby's very bad judgment to be caught having lied, for reasons that still are largely inexplicable, as he was floating along with many others in the wake of an investigation that was already headed to a fully justified but grandly ceremonial burial at sea.