Why Libby can still have been guilty of perjury even though no one was prosecuted or convicted for leaking about Plame

My honored friend Patterico has privately chided me from time to time in the past for putting too much of my energies into writing comments on other blogs, whether his or someone else's, when I ought to channel that energy into more posts on my own blog. Patterico's chiding is well taken, although I often remember it too late.

In a post yesterday about the Libby case, Patterico graciously linked my own long war story post from yesterday, along with a provocative and interesting post about Special Counsel Patrick Fitzgerald's exercise of prosecutorial discretion by our mutual friend Tom Maguire.

I take the liberty of reprinting here a thoughtful comment that Tom then left on Patterico's post; an admirably concise but important comment that yet another mutual friend, DRJ, made there in response to Tom's; and my own pair of answering comments. In re-reading it all, including intervening comments by a number of other people, it seems more clear to me that Tom and DRJ were focusing on the subject of prosecutorial discretion, which I addressed in my second comment. But it's very obvious that many other people who were commenting on this same post at Patterico's, and whom I've seen commenting on many other blogs, have fundamental misunderstandings about the nature of perjury law — and specifically, that they have the serious misimpression that sworn testimony can only be perjurious if it's about an actual crime that was at least committed by someone, and perhaps that also was indicted, prosecuted, and the subject of a conviction.

Since the balance of this post is basically all republication, I'm not going to use my normal block-quote style, but will just reprint the four comments in sequence. As partial compensation for my unabashed misappropriation of this prose, I encourage you all to visit Tom's and Patterico's blogs and to click through promiscuously on the advertisements you find there. And absolutely no one will be surprised that my pair of comments is longer by far than everyone else's put together.

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First, from Tom (in comment #9 to Patterico's post):

Thanks for the link, and if I may be indulged for a moment, let me pose a legal question in the form of a short story:

A controversial University Dean is found dead in the cafeteria; because the Dean had been in good health, poisoning is immediately suspected as the cause of death (OK, a bit far-fetched, but work with me).

The Science Dept. Chair, Prof. Jones, is a suspect - he has access to weird chemicals *and* had been leading a faculty revolt against the Dean.

But Prof. Jones, in grand jury testimony, offers an alibi - he was in Atlantic City all weekend, five hundred miles away.

Well.  One fine day, two reports reach the prosecutor’s desk:

(a) Prof. Jones lied - he was, in fact, in town meeting with a group of trustees to plot the overthrow of the Dean.

(b) the medical examiner’s report is unambiguous - death from natural causes due to a rare, previously unnoticed heart condition.

SO - does the prosecutor file perjury charges against Prof. Jones?

YES: Jones lied during a good-faith murder investigation.

NO: Are you kidding - there was no crime!?!

The parallels to the Libby case may (or may not) be obvious, but I am curious to see what folks think.

OK, I am curious to see what I think, too.

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Next, from DRJ (in comment #17 to Patterico's post):

Tom Maguire,

I think the prosecutor should pursue perjury charges against the Professor, if “only” to send the message you can’t lie with impunity to a grand jury.

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Next, from me (in comment #39 to Patterico's post):

Tom Maguire (#9):

Your hypothetical is a pretty good one. I like it a lot. Your hypothetical is effective, but not because it illustrates a close legal question. It does not. If your hypothetical were asked in a law school criminal law examination, any law student who answered “No” would absolutely, positively get zero credit for that answer. It’s not a “maybe yes, maybe no” situation where someone gets partial credit. The only correct answer to your hypothetical is “Yes.”

Your hypothetical is particularly effective for people trying to understand the Libby situation because it strips the political confusion away that covers that case. Thus, your hypothetical can be used to effectively split people into two groups: First, there are those who do understand what the crime of perjury is, all of whom will answer “Yes” to your hypothetical. Second, there are those who think that perjury can only happen if the questioning is about an actual crime that was committed, and that can be prosecuted with a resulting conviction, all of whom will answer “No” to your hypothetical.

I’m guessing here, but my guess is that what may have led to some of this confusion is a poor understanding of the concept in perjury law of “materiality.” If the intentional false statement is on some matter that is not material to the subject of the testimony, then it may not be able to support a prosecution and conviction for perjury. Thus, for example, if Prof. Jones is asked before the Grand Jury, “How old are you,” and being vain, he lies and says he’s 39 even though he’s really 49, that’s a deliberate and intentional false statement, but it’s not on a material matter because that’s not something that relates closely to the reason for him giving sworn testimony to that grand jury. (His age doesn’t relate to anything that grand jury is trying to find out.) But some people blur this “materiality” requirement in their minds, and come away with the impression that to be “material,” the testimony must relate to a crime.

Well, no, that’s not at all what “material” means.

As a civil trial lawyer, I take testimony under oath day in and day out. Almost never in the twenty-six years in which I’ve been taking sworn testimony has the underlying subject of my questions been a crime — either actual or alleged.

Instead, in the cases I handle, what’s material may be whether someone did or didn’t sign the contract, or whether the supermarket manager did or didn’t know that there was a crushed grape on the floor (resulting in a slip-and-fall). The witness who deliberately lies to me about the signature on the contract will be subject to prosecution and conviction for perjury if his testimony was in my lawsuit about that contract, even though he wasn’t being asked under oath about anything having to do with any crime. “Signatures” are material for purposes of my contracts lawsuit. By contrast, who saw the crushed grape is material for purposes of my slip-and-fall lawsuit. Whether the witnesses in my contract or slip-and-fall case are actually 39 or 49 isn’t any more material in those cases, though, than it would be material in the grand jury investigation of who killed the Dean.

But if Prof. Jones was being examined before the grand jury that was convened to decide whether a crime had possibly been committed in connection with the death of the Dean, and Prof. Jones is a suspect, then yes, indeed — Prof. Jones’ whereabouts are very material to his testimony, and if he deliberately lies about them, that is indeed perjury, regardless of whether the Dean turns out to have been murdered or not. The materiality doesn’t depend on proof of the dean ever having been murdered by anyone. Rather, it has to do with the purposes of Prof. Jones having been put under oath for questioning before the grand jury.

Likewise, Libby’s testimony about who told him what and when, and who he told what and when, was absolutely “material” to Mr. Fitzgerald’s grand jury’s investigations. “Materiality” doesn’t depend on whether there really was a crime committed, or whether an indictment is ever returned, or on whether a conviction is ever obtained. The grand jury is entitled to get truthful testimony on the subjects that are material to its investigation even when — as here — it never finds probable cause to believe an underlying crime has been convicted, and therefore never indicts anyone. That’s why both Libby and Prof. Jones can later be found guilty of having committed perjury.

Anyway:  Let’s argue sometimes on each other’s blogs, and not just on our fine mutual friend Patterico’s!

Other readers: If you thought the correct answer to Tom’s hypothetical was “NO: Are you kidding - there was no crime!?!,” then you’re wasting bandwidth by even commenting on the Scooter Libby trial. You’re working on a completely flawed set of assumptions that guarantee that any conclusions you draw are going to be unfounded.

Best regards from your old friend,

- Beldar

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Finally, from me (in comment #40 to Patterico's post):

One more thing: DRJ (#17 above) is definitely in the category of “those who understand what perjury is.” His answer presumes (as mine just above, #39, argues at great length) that Prof. Jones has indeed committed perjury, that there is ample evidence of it, and that Prof. Jones will be properly convicted. DRJ read your hypothetical differently than I did, though. DRJ read it to be asking about prosecutorial discretion. (I read it to be asking about whether perjury had or hadn’t been committed.)

But let me add that I absolutely, positively agree with DRJ as well on the prosecutorial discretion reading. With the clean set of facts you propose, the prosecutor is almost certainly going to be able to get a conviction if he does indict. Is there some reason why he shouldn’t?

The fact that the Dean wasn’t murdered is no good reason not to indict, for exactly the reason DRJ points out: You don’t let people off the hook for committing perjury just because it’s later established that the correct result of the grand jury proceedings would be a no-bill (non-indictment).

For grand juries to perform their essential screening function in the criminal justice system, they must get accurate (non-perjured) testimony on all of the facts that are material to the possible crimes they’re investigating, without regard to whether that testimony tends to sway the grand jury toward believing that there is probable cause for an indictment, or that there is NOT probable cause. Indeed, for the protection of the innocent, it’s arguably more important that grand juries get absolutely truthful and accurate (non-perjurious) testimony in exactly those cases in which they end up returning no indictments!

So DRJ is right: No prosecutor who understands the nature of the criminal justice system and the importance of witnesses giving truthful testimony — as compelled, in part, by the possibility of punishment through a perjury prosecution — would “walk on by” the clear case of perjury you’ve postulated.

That’s what Fitzgerald was trying to say in his press conference for which you pilloried him on your blog. You point out that he may have “walked on by” a lot of other potential perjury indictments, and maybe so; obviously you and he disagree on how strong those potential indictments might have been. The Libby situation has many more players, and many more political and military ramifications, than your nice, clean hypothetical. And in the real world, prosecutorial discretion is much harder to exercise, and much more subject to second-guessing, than in your nice, clean hypothetical.

But again, in your nice clean hypothetical, not only is it clear that Prof. Jones is guilty of perjury, but it is equally clear that any honest prosecutor would chose to prosecute him (notwithstanding the Dean’s natural death).

Update (Sat Mar 10 @ 7:37pm): I see that Tom's also posted his hypothetical on his own blog.