« A Beldar war-story about a witness who lied under oath when he had no apparent motive to do so | Main | Did Fitzgerald abuse his prosecutorial discretion? »

Saturday, March 10, 2007

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.


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.


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.


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


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.

Posted by Beldar at 04:14 AM in Law (2007) | Permalink


Other weblog posts, if any, whose authors have linked to Why Libby can still have been guilty of perjury even though no one was prosecuted or convicted for leaking about Plame and sent a trackback ping are listed here:


(1) DWPittelli made the following comment | Mar 10, 2007 8:08:55 AM | Permalink

For me, the vagaries of memory and of testimony (Libby's and the reporters') are more germane than is this debate about the nature of when a lie is perjury.

However, if the prosecutor learned, before talking to Professor Jones, that there had been no murder, but decided to stretch out the investigation anyway, perhaps because he enjoyed his role as prosecutor, and asked questions that even he knew were no longer germane to any legal matter, would the "Yes/No" answer be the same? (I really don't know the answer, I'm not trying to play gotcha.)

And isn't this situation at least arguably closer to that of Plame/Armitage, etc., than is the murder situation you described above?

(2) Walter made the following comment | Mar 10, 2007 8:19:29 AM | Permalink


As usual, you've cut to the nub of the argument. I really should read your blog more regularly.

My discomfort with the Libby prosecution stems from two sources: I believe that Libby did not deliberately lie (though I agree that even if he testified accurately about his memory, his memory did not well reflect the facts). Secondly, I believe that Fitzgerald did not properly exercise prosecutorial discretion.

cboldt and I had a discussion in the comments at JustOneMinute wherein we reviewed the statistics on federal perjury prosecutions. Approximately 70 such prosecutions are initiated (somewhat less than one per US attorney) per year.

I don't do very much litigation. But I'd venture that I've seen deliberate, material falsehoods in civil depositions and trials at least once every two years. When the case turns on the opposite party's truthful response, I am surprised these days by a truthful response, especially if there is no documentary evidence either way.

Are people more honest in Texas? (I note that your war story dates from many years back. Perhaps you have no more recent tales of mischief under oath?) Or do most of these fall by the wayside? (As in your case, where the misstatement could not have "affected the decision of the judicial proceeding" absent negligence by your client.)

In reviewing the cases, perjury seems to be prosecuted when it upsets the local prosecutor (such as a statement in front of him/her at the grand jury) or when it is uncovered during the investigation of an unrelated crime, itself not prosecuted (it's odd how many of those perjurious errors on home mortgage contracts were not referred by the banks).

(3) clarice feldman made the following comment | Mar 10, 2007 9:07:32 AM | Permalink

Instead of a not very apt analogy, perhaps some particulars might better inform the debate.
Just the Facts

(4) Sharky made the following comment | Mar 10, 2007 9:43:03 AM | Permalink

As an engineer, not a lawyer, I appreciate the clarification.

Now, I assume it's okay to answer "I don't recall", assuming one truly doesn't recall?

In Libby's shoes, I don't know if I could have remembered. How does the law deal with those of us whose memories aren't great?

(5) Patrick R. Sullivan made the following comment | Mar 10, 2007 10:10:23 AM | Permalink

Holy cow! Welcome back, Lazarus.

At any rate, I disagree with my friend Tom that this is analogous to the Libby case. As someone upthread noted, it would have had to have been the Professor lying to the police investigating the matter, and then, after getting the coroner's report that it was death due natural causes, the DA invites the Prof to repeat his lie before a grand jury.

Which I would consider misconduct on the part of the DA

(6) Fred Z made the following comment | Mar 10, 2007 1:03:06 PM | Permalink

Thanks for the explanation you gave to my comment in your previous post. It was kind to my ignorance, careful and well reasoned

I am still troubled and for the same reason as DWPitelli.

A lot of us suspect Fitzgerald behaved very badly indeed.

What reason could there have been to force Libby to testify if Fitzgerald knew there was no crime? Do I have my time lines right? I am under the impression that Fitzgerald knew, before the Libby grand jury testimony, that there was no crime. Did he call Libby to trap him into perjury? Was he in fact then investigating Libby's (apparent) false statements to the FBI? If so, was that proper? Can a grand jury empanelled to investigate a particular crime also investigate perjury to it? Was it the same grand jury?

(7) DRj made the following comment | Mar 10, 2007 1:51:32 PM | Permalink


You really should teach law, at least as an adjunct. My preference would be UT but that's a bit of a commute.

(8) jb made the following comment | Mar 10, 2007 3:16:23 PM | Permalink

Teach law at UT. Snort. I went to law school at UT. Just like 99% of the law schools in the country, it is filled with loony leftists with pet theories about how their favorite minority is screwed by the eeevil legal system. My favorite was the "Lesbians and the Law" professor, who was, coincidentally, a lesbian. Sigh.

So, Beldar, if you could stand the lunatics, go work at the asylum.

Of course, you could always just stick close to Graglia.

(9) Beldar made the following comment | Mar 10, 2007 4:05:37 PM | Permalink

Many good comments (and flattering the host is always welcome; most of my modesty is false modesty).

I have a hard time forming an opinion about whether Fitzgerald should or should not have wrapped things up and shut down his investigation sooner, but I think I'll write about that in a new post.

Walter, you're undoubtedly correct that there are many, many more instances of perjury that could be prosecuted than actually are prosecuted. You're likewise correct that there is a high correspondence between perjury prosecutions and an angry prosecutor.

I don't have a basis to think that people in Texas are either any more or less honest than others. Most of my cases have some Texas connection, obviously, but I've dealt with a lot of witnesses from elsewhere, and if there's a geographic correlation I haven't been able to notice it.

Neither am I confident that my own practice has been typical; I have some good reasons to think that it might have had a pretty large degree of deviation from the norm. But in any event, I'm actually surprised by the comparative infrequency of testimony I've seen that I think is, or even very arguably may be, genuinely perjurious.

A decent-sized chunk of my cases — not by any means a majority, but I'd guess something around 10-15% — doesn't involve any serious dispute about the underlying facts. Instead those cases turn on competing interpretations of the law, or of the intent of parties to an agreement, or the significance of undisputed facts. Those are cases that ought to be resolved on summary judgment, but for one reason or another many of them aren't.

Another large chunk of my cases involve not competing versions of facts, but of opinion and judgment. Was certain largely agreed-upon conduct, for example, "reasonable" or not? Sometimes that question is largely driven by which of the undisputed facts are focused upon, but even if everyone agrees on which facts are important, there are often different outcomes possible based on differing opinions. And I suspect it's actually easier to build a perjury case circumstantially on "I don't remember" testimony than on "It's my opinion that" testimony.

Losing litigants (and oftentimes their losing lawyers) understandably perceive more "perjury" than an outside observer would, partly because of their greater familiarity with the facts, but also obviously because of potential bias. Private parties attempting to persuade prosecutors that there's probable cause to prosecute alleged perjury matters have — and probably should indeed have — a high burden of persuasion to meet. It's no surprise that prosecutors reject (or, perhaps more accurately, fail to get really interested in) most of those referrals. My assumption has always been that if I ever referred a possible case of perjury for prosecution, I would need to hand the prosecutor almost all of the proof he'd need for a conviction, nicely gift-wrapped. And I've yet to have an occasion to do that in my own practice so far.

(10) Elliot made the following comment | Mar 10, 2007 4:16:19 PM | Permalink

I think people may understand that Libby was guilty of perjury, but resist the notion that this trial was really a criminal investigation. They see it as an excuse to provide opportunity for perjury so some sort of trial can proceed. Under this idea, Fitzgerald's task is to put someone on trial regardless of how he has to get there. One can reasonably ask why Fitzgerald investigated anything. What crime did he think was committed?

He knew Armitage was the source of the information on Plame, and he knew Plame had not been out of the country for five years. So, why was he doing anything at all? It looks very much like the media called the grand jury, and Fitzgerald was assigned do what the media folks wanted. The problem with presecutorial dscretion happened at the beginning of the process, not when he decided to proseute Libby.

(11) DRJ made the following comment | Mar 10, 2007 8:59:08 PM | Permalink


Surely you jest? Seriously, I have a hard time believing that 99% of UT Law faculty are loony leftists. I know several who are liberal true-believers but they do not let it affect how they teach or treat their students. But if what you say is true, that's one more reason why UT needs Beldar.

(12) Beldar made the following comment | Mar 11, 2007 12:11:39 AM | Permalink

Gentlemen: Were I to ever teach law, I would love to do so at my alma mater, the University of Texas School of Law. As it happens, every Dean of Texas Law School has continued to correspond with me on a regular basis ever since my graduation in 1980 — several times each year in fact.

Each such letter has been filled with warmth and appreciation for my years at The University. Without exception, each such letter has shown me respect and appreciation and regard that I barely deserve. These letters have uniformly had as their premise the implicit, and sometimes explicit, presumption that my career has been successful and extremely remunerative. And so eager has every such Dean been to encourage and facilitate my prompt response that each Dean has included in his every letter to me a pre-addressed envelope for my reply!

So far, however, none of those letters has solicited my agreement to come back to Austin to teach. I will continue to open each such letter in hopes of finding such a solicitation, as I am confident that the good Deans will continue soliciting me for something, anyway, so long as they have my current address.

(13) Ken made the following comment | Mar 11, 2007 6:43:35 AM | Permalink

I think the point raised by Pitelli, Sullivan, and Fred Z demands a response.

According to that point, only Libby's false statements to the FBI (if actually false) should be subject to prosecution.

That prosecution would be depend on at least two facts relating to the prosecutor: 1. Was it known that Armitage was the source before the FBI was asked to interview Libby? 2. Was it known that the leak was not a violation of law before the FBI was asked to interview Libby?

(I am assuming that the other charges relate to statements made after it was known that the leak was not a violation of law, and that Armitage was the original leaker.)

(14) Beldar made the following comment | Mar 11, 2007 7:10:20 AM | Permalink

Ken, I'm not sure I understand the question, but if I do, the answer is:

Yes, a grand jury can indeed indict someone for perjured testimony and obstruction of justice that occurred during the course of testimony to that very same grand jury.

Grand juries have limited terms, and if the term of the grand jury before whom the perjurious statement or obstruction of justice originally occurred has already expired, and that particular grand jury has therefore already been dissolved, by the time the prosecutor is ready to seek the indictment, then he'd have to seek it from a new, different grand jury. Otherwise, though, it would make much more sense to go back to the same grand jury before whom the testimony or obstruction had occurred, if only because they'd already be up to speed on the factual background and context.

There was nothing that compelled either Fitzgerald or the grand jury to shut down their investigation of other potential crimes — like perjury, false statements, or obstruction of justice made earlier in the investigation — even if they had already made a determination not to charge anyone for the actual leaking of Plame's CIA employment. Because of the secrecy in which the grand jury's deliberations are cloaked, though, we can only guess as to when, why, or even whether Fitzgerald and/or the grand jury made that determination. The only thing we know for sure is that no one was in fact charged, and that Fitzgerald has now said he doesn't expect any more indictments.

And by the time Fitzgerald was appointed, well before anyone started any grand jury testifying, Libby had already made the statements to the FBI investigators about his conversation with Russert that later became the basis for his indictment and conviction on one "false statement" count (as well as the statements to the FBI investigators about his conversation with Cooper that later became the basis for his indictment and acquittal on the other "false statement" count).

(15) Eric Rasmusen made the following comment | Mar 11, 2007 9:22:14 AM | Permalink

Beldar, you finally came to the important point: that the prosecutor knew there was no initial crime at the time that he questioned the witness. As you say just above, there could still be a crime--- lying to FBI agents about the supposed initial crime. This has two problems:

1. If we are talking about obstructing justice by wasting the FBI's time, then the prosecutor is far more to blame than the witness--- the prosecutor should have told the FBI the case was solved. Indeed, if the prosecutor told the FBI otherwise, wouldn't that itself be a violation of the "Martha Stewart" statute?

2. This just carries the materiality question back a step. Did the FBI, or should the FBI have known that the case was solved when they questioned Libby? "Should" matters because we know the Justice Dept. in general knew because Powell told them, and that seems more important than whether the individual FBI questioners knew.

(16) Beldar made the following comment | Mar 11, 2007 9:46:10 AM | Permalink

Mr. Rasmusen, with due respect, when or whether "the case was solved" is not a meaningful question for us to debate in this context.

The FBI learning who Novak's source and confirmer were didn't disconnect the battery cables from this investigation. I don't know how to say this any more clearly.

You're making all kinds of assumptions about what actually went on inside the grand jury proceedings — and for that matter, inside Fitzgerald's head — and when they went on. There may have been dozens of potential subjects, and dozens of potential crimes, under consideration and investigation that we have absolutely no clue about — and we never will, because of the secrecy of the grand jury process and of criminal investigations more generally.

It's a good guess that Fitzgerald came to the deliberate conclusion that he ought not indict Armitage, for example. But we really don't know that for sure, and we don't know precisely why, and we don't know precisely when. We don't know under what statutes, if any, Fitzgerald analyzed Armitage's potential criminal liability, if any. And that's just one of the potential non-Libby targets. Lots of people are throwing around loose assumptions — and they do not and cannot have any factual basis for them, they are only guesses.

But ultimately, none of those guesses matter anyway, because under any set of guesses, those other internal decisions within the investigation and the grand jury process didn't deprive the grand jury or the Fitzgerald team of their right or their duty to made a determination specifically as to the one individual and the five counts they did decide to charge.

(17) made the following comment | Mar 13, 2007 12:47:36 PM | Permalink

Aren't we overlooking the fact that the prosecutor must prove to the jury materiality beyond a reasonable doubt? The indictment says that Libby's state of mind was important to the grand jury (as it must, to allege materiality), but I can't for the life of me understand why it was important unless Plame was covert, and issue on which there was no proof. It doesn't appear that anyone else can say why Libby's state of mind was important either, as nobody knows what Fitz was investigating. Thus, there's a failure of an essential element and Libby is entitled to an acquittal.

The comments to this entry are closed.