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The Supreme Court and the Libby Case -- A Dialogue:
Two lawyers, one very liberal and the other very conservative, meet over a beer to chat about recent legal stories in the news. . . .

  Lib: I've been thinking a lot about the new Supreme Court. Those new Justices are totally political — they vote the conservative way every time. I'm just glad the more liberal justices kept opposing their efforts.
  Con: Funny, I've been thinking about the Libby case. The case against Libby was totally political. I'm just glad President Bush undid some of the damage.
  Lib: Do you really think the case against Libby was political? What's your basis for saying that?
  Con: Wait, you first. You said that the two new Justices are totally political. What's your basis for saying that?
  Lib: Just look at how they voted. Alito and Roberts were on the conservative side of all those 5-4 decisions. Do you think that was a coincidence?
  Con: I don't think it was a coincidence — Alito and Roberts are conservatives, so it's not too surprising. But isn't it a pretty far step to go from saying that Alito and Roberts are conservatives to saying that their decisions were purely political? Don't you have to look closely at the merits of each case to see which side is more persuasive?
  Lib: Stop being an apologist. It's not really so hard. Any Justice who votes so consistently for one side in ideological cases is obviously just being political.
  Con: You mean like Justices Stevens, Souter, Breyer, and Ginsburg? Each and every one of them voted for the liberal side in every single one of those ideologically divided cases. Does that mean their decisions were purely political, too?
  Lib: Hmm, let me think about that. No, that's different. The Supreme Court is about helping the little guy against the powerful. The liberal Justices are following in that great tradition.
  Con: I think the Supreme Court is about the law, actually. Sometimes the law favors the little guy and sometimes it favors the powerful. But when you say that "the Supreme Court is about helping the little guy," you're just pretending that decisions matching your policy views are somehow fundamental constitutional truth.
  Lib: Well, it's certainly the role I think the Supreme Court should have.
  Con: But isn't that just your politics speaking? You're a liberal because you think the government should help the little guy. So you embrace judicial decisions that reflect that view as being "correct." On the other hand, instead of looking at the facts and law of each case, you just dismiss judicial decisions that clash with your policy views as "purely political." It validates your worldview, but it doesn't really add anything.
  Lib: Let's move on to the Libby case. Why do you think it was political?
  Con: Oh, please. The Libby case was purely political from the beginning. Liberals tried to use it to indict Cheney and Rove over the Iraq war in an effort to cripple the Bush Administration. Fitzgerald was an overzealous prosecutor who was trying to do their bidding. He obviously was acting politically against the Bush Administration.
  Lib: Do you have any proof that Fitzgerald had any political motives?
  Con: I don't need proof. Just look at what he did. I can't think of any other explanation.
  Lib: But isn't this the same reasoning you found so objectionable a minute ago? When I thought Alito and Roberts were being purely political based on the outcomes they reached, you objected that I was just saying that because it validated my worldview. And yet now you say that Fitzgerald was just being political because of the positions he took. Aren't you the one trying to validate your worldview now?
  Con: Stop playing "gotcha." I know politics masquerading as law when I see it. And I see it with the Libby prosecution.
  Lib: Ah, but as a wise man said not long ago, "isn't that just your politics speaking?" You support the war in Iraq and the Bush Administration. The Libby prosecution threatened the Administration and put some pretty unflattering attention on the White House and the road to the war. So instead of looking at the facts and law of the criminal case, you just dismiss it as "purely political." It validates your worldview, but it doesn't really add anything.
Baseballhead (mail):
That pretty much summarizes the last thousand exchanges on the site.
7.5.2007 4:45pm
Justin (mail):
I think your fake liberal is an idiot, and I'd love to say he's a strawman, but I admit those are arguments that some liberals are making. But I think you're giving short shrift to similar arguments made by some liberals who are making serious, acute arguments. For instance, I think there's a substantial difference between "the Supreme Court should help the little guy," and "the Supreme Court should not broadly construe procedural rules and/or narrowly construe substantive ones in order to deny congress and/or the framers their actual intent in drafting a statute or constitutional language. This goes back to the serious argument Lithwick was trying to make, or at least to some of the very thoughtful comments to that argument in the thread on the subject here.

Of course, one doesn't need to accuse the other of playing politics to accuse the other's jurisprudence of being normatively wrong. But there certainly have been accusations, valid or not, that this "squeeze" affect is less used by conservatives when their own interest groups would be adversely affected.
7.5.2007 4:51pm
4L:
Take that Prof. Dershowitz.
7.5.2007 4:56pm
Frank G (mail):
I feel dumber having read this dialogue. It looks like every other "exchange" (which is too kind of a word for it) of opinions on this and most other blogs dealing with political and legal topics and does not reflect any intelligent liberal or conservative legal positions.
7.5.2007 4:58pm
Anderson (mail) (www):
One disanalogy between the SCOTUS term and the Libby case may be that the SCOTUS issued dozens of decisions, giving us numerous examples from which to draw an inference.

Another is that some of the Court's decisions, like those in the school integration cases, are at odds with the self-professed principles of some of the justices in the majority. Scalia and Thomas, infamously, lose their interest in originalism when it's the original meaning of the Fourteenth Amendment that's under discussion.
7.5.2007 5:01pm
OrinKerr:
Frank,

Think of this as commentary on how people on both sides of the political spectrum dismiss what they don't like as "purely political" -- and how, ironically, it often is pure politics that leads to the accusation.

I hope this will make you feel less dumb, although actual mileage may vary.
7.5.2007 5:05pm
Constitutional Crisis (mail):
It would be better to compare apples to apples, with a dialogue between a "lib" viewer of the Warren Court with a "con" viewer of the Roberts Court, or a "lib" viewer of the Clinton pardons with a "con" viewer of the Libby commutation.

Of course, the substantial differences are still so great that it's hardly likely to be illuminating.

I'm still wondering why the need to create any kind of apology or rationalization, even one that comes out with "a pox on both houses" for the President's egregious pardon of Scooter Libby. This is much closer to the Midnight Massacre than it is to pardoning Rich, and the nonpartisan observer (even the partisan observers...) can see that.

As far as the Supreme Court goes? Meh. Constitutional jurisprudence swings back and forth like a pendulum. I don't like the direction it's presently heading in (and that it's been heading in for some years now), but the body politic seems likely to take corrective action soon.
7.5.2007 5:13pm
courtwatcher:
Orin,
I don't think that most liberals' positions about the "conservative 5" rely on the idea that the justices are "political" in the partisan sense (although commentary on Bush v. Gore may be the except to that, and for good reason). Do you really think otherwise? If so, why? And if you mean "political" in some other sense, how is that parallel to the Libby case?
7.5.2007 5:16pm
Constitutional Crisis (mail):
Oh, and what are they, alcoholics? Why can't they meet over coffee? Do they need liquor in order to have a good time or engage in thoughtful discussion?
7.5.2007 5:18pm
andy (mail) (www):
I thought this post was interesting, although it looks like I was the only one.

-Andy Grewal
7.5.2007 5:21pm
MDJD2B (mail):

...the President's egregious pardon of Scooter Libby. This is much closer to the Midnight Massacre than it is to pardoning Rich, and the nonpartisan observer (even the partisan observers...) can see that.


1. The President did not pardon Libby. The so-called pardon seems to be a Big Lie repeated ad nauseum by bloggers on the left. Libby cannot vote, among other things.

2. How is the commutation of a convicted person's sentence more like dismissal of officials who refused to halt an investigation than it is like a pardon of another criminal fugitive? The former was an attempt to halt revelations regarding President Nixon's inappropriate activities; both of the others eased, post facto, the judicially imposed burden imposed on the convicted criminals, with no effect on the ultimate outcome of any investigation or legal process.

3. If you need an analogy (and none of these situations are strictly analogous) try Clinton's McDougall pardon.
7.5.2007 5:23pm
Thales (mail) (www):
Orin,

This is an insightful comment, exploring the baseness of much of our national political dialogue. I do happen to think that at the moment the conservative "side" plays this silly game more successfulyl than the liberal "side" (e.g. the points it scores in elections with the empty term "judicial activism"), but perhaps the recent congressional realignment will change this.

Of course, one thing obscured by your dialogue is that for many/most ordinary people, it is the results of a court decision that matter rather than the reasoning, and I'm not sure that's a wrong view for them to take. For the prisoner (and all others similarly situated) recently denied his appeal because he followed the order of the district court rather than the law on the books on when to file , who truly cares what the "correct" legal result is? It's either acceptable or unacceptable as a matter of simple justice--I vote for the latter.

At a deeper level though, your illustration obscures the inescapably political/moral/worldview-based grounds of judicial decisionmaking, especially at the Supreme Court. As Holmes, Posner and countless others have pointed out, the conventional legal materials run out at a certain point, fairly early in many important cases the Court takes on. These materials do not and can not alone determine the results of those cases. It would therefore frequently be naive to characterize the Court as "wrong" when criticizing such a decision, but it would perhaps nonetheless be apt to complain that the court is being "political" in a direction of politics one does not find acceptable (because that may well be true, if there are no other genuine grounds that lead ineluctably to the result). In addition, many Justices seem to have selected in advance their method of adjudication because it happens to frequently produce results they agree with (and less often may discard the principles of that method to reach preferred results, e.g. Scalia in the Raich case), because it gives them what appears to be a principled external (and superficially nonpolitical) ground from which to avoid criticism. Why not just look through the smoke and admit that the Court can't help but be political, and accept that people can legitimately say this or that decision is bad because it's my ox that got gored?
7.5.2007 5:32pm
AF:
Think of this as commentary on how people on both sides of the political spectrum dismiss what they don't like as "purely political" -- and how, ironically, it often is pure politics that leads to the accusation.

True enough -- people on both sides make stupid arguments. Be that as it may, Roberts and Alito are committed conservatives and Bush's commutation of Libby's sentence was indefensible on its own terms.
7.5.2007 5:33pm
Constitutional Crisis (mail):
My apologies; I slipped (in a similar way as Orin did on his first post on the subject -- what a big liar he is). I recognize the difference between a pardon and commutation. Though "distinction without a difference" does come to mind, here.

I think it's facially apparent, but the reason that the pardon of Libby is closer in analogy to the Midnight Massacre than to Rich and/or McDougall is that in the former, the President used his inherent power in an attempt to derail an investigation into the malfeasance of his administration. Similarly in the Libby case, there is at least the appearance of impropriety that there may have been an implicit, or explicit, quid pro quo: Libby's silence in exchange for immunity from Justice. There really isn't a credible argument that the McDougall and Rich pardons similarly implicated the lawfulness of the government's activities. And if it did, arguably, in the McDougall case (though I would distinguish the personal actions of Clinton from the apparently concerted efforts of the Office of the Vice President, here), if Susan McDougall had such an agreement with the President, she certainly got the raw end of it after sitting in jail for months.

As I said in another thread, a wide majority of those versed in the Libby case and the law object to the President's having commuted Mr. Libby's sentence -- even those who might be assumed to have some sympathies for the role players. (See Volokh, Kerr.) So why, in the days after acknowledging the impropriety of commutation, the need to create redemptive or quasi-redemptive narratives?
7.5.2007 5:34pm
rarango (mail):
One of the things I most enjoy about VC is the conspirators advice to posters; particularly this: "And if you think this is the other people's fault -- you're one of the few who sees the world clearly, but fools wrongly view you as a crank, a blowhard, or as someone who overdoes it on the hyperbole -- then you should still rewrite your post before hitting enter. After all, if you're one of the few who sees the world clearly, then surely it's especially important that you frame your arguments in a way that is persuasive and as unalienating as possible, even to fools." Good advice, it seems to me, when staking out a position on the Libby case.
7.5.2007 5:34pm
NickM (mail) (www):
Clinton's pardon of his brother is also analogous to the Libby commutation. Presidents normally don't let their friends and family go to prison.

Maybe Bush was channeling Hillary "Nonviolent criminals should not be serving hard time in our prisons. They need to be diverted from our prisomn system." Clinton.

Past history leads me to believe that the other side would have done the same thing. Most of the outrage is all about whose ox is getting gored.

Nick
7.5.2007 5:34pm
Davide:
Orin,

I can see that you're displeased with the results in the Libby matter.

Can you please explain to me (1) what the underlying crime was that the DOJ was investigating, and (2) what plausible basis, if any, there was to presume any crime had been committed at any point in time? It would be nice, in this response, to see an analysis under the relevant statute. By the way, has anyone made any testable court filing so asserting on this point? I don't think so.

If you don't think there was any underlying crime, do you think that prosecutors should be able to indict and convict people for obstruction because they lied about any and all conceivable matters stated to prosecutors (see earlier comments in this site about bringing an obstruction case based on a 20 yr old crime where that statute has run on the underlying crime). Is that a salutary result?
7.5.2007 5:36pm
Crust (mail):
Well done.

Though why Lib focussed just on the two new justices, rather than the conservative five doesn't make sense to me. If he wants to argue that conservatives on the court are political, his strongest argument is to point at Bush v. Gore which of course doesn't apply to Alito and Roberts.
7.5.2007 5:37pm
uh clem (mail):
Hmmmm. On the one hand you have liberals bemoaning the fact that conservative justices are issuing opinions that benefit conservatives.

And on the other hand, you have conservatives bemoaning the fact that a conservative prosecutor and a conservative judge acted to benefit liberal interests.

Seems like a false equivalence to me.

Suggesting that Fitzgerald and Walton acted out of partisan motives is absurd. Pointing out that conservative Justices predictably vote for conservative positions, is, well, not exactly a controversial thing to say.

What am I missing here?
7.5.2007 5:39pm
Crust (mail):
NickM:
Clinton's pardon of his brother is also analogous to the Libby commutation.

Clinton's pardon of his brother is more closely analogous to the commutation of the Tooth Fairy.
7.5.2007 5:39pm
Constitutional Crisis (mail):

One of the things I most enjoy about VC is the conspirators advice to posters; particularly this: [snip]
Argument by innuendo. Nice.
7.5.2007 5:39pm
Crust (mail):
Constitutional Crisis:
My apologies; I slipped (in a similar way as Orin did on his first post on the subject -- what a big liar he is).
I think that's unfair to our host. IIRC, he initially described the commutation not as a pardon, but as an "effective pardon". That is at least arguably an accurate description, the jail term being by far the most significant part of the sentence.
7.5.2007 5:43pm
Felix Sulla:

1. The President did not pardon Libby. The so-called pardon seems to be a Big Lie repeated ad nauseum by bloggers on the left. Libby cannot vote, among other things.
OK, substitute "commutation" for pardon then. And I'm sure Scooter is rolling on the floor in agony over his lack of a vote. Don't worry, the pardon will be forthcoming, though probably not (quite) in time for the 2008 presidential election, alas.

As to your second and third quotes, I agree it is closer to the McDougall pardon that the Saturday Night Massacre. (I believe that is what Con. Crisis meant to write.) So what? Is your point merely to argue by inference another tired "Clinton did it!"? I seem to recall Clinton having to undergo some public and rather expensive proceedings in relation to his perjury.
7.5.2007 5:43pm
OrinKerr:
Davide writes:
If you don't think there was any underlying crime, do you think that prosecutors should be able to indict and convict people for obstruction because they lied about any and all conceivable matters stated to prosecutors (see earlier comments in this site about bringing an obstruction case based on a 20 yr old crime where that statute has run on the underlying crime). Is that a salutary result?
Of course I do -- doesn't everyone? Otherwise any witness could always just flat out lie in every investigation in an effrt to impede investigators. The only time a person could ever be prosecuted for the lying is if the government happened to also successfully prosecute the person for the crime under investigation. A smart witness with something to hide (or someone to protect) would never speak truthfully to an investigator: You could always just lie (if they think they can't be charged with anything) or take the 5th (if they think they can). That would seriously gut most white collar crime investigations.

I guess I don't find that so salutary. Do you, Davide?
7.5.2007 5:46pm
Constitutional Crisis (mail):
I think that's unfair to our host. IIRC, he initially described the commutation not as a pardon, but as an "effective pardon". That is at least arguably an accurate description, the jail term being by far the most significant part of the sentence.
You are correct sir, and the danger of failing to quote the OP, who refered to "[t]he so-called pardon [is] a Big Lie repeated ad nauseum by bloggers on the left," is that others might not sense my sarcasm. I don't think of Mr. Kerr as a big liar. Nor do I think of him as a blogger on the left, however, despite his passing (and accurate) reference to the "effective pardon" of Mr. Libby.
7.5.2007 5:47pm
OrinKerr:
Oh, and Davide, I believe the crime was knowingly leaking information about a covert agent's status. The evidence was proof that an apparently covert agent's status was in fact leaked. That certainly seems to sufficient to me to open an investigation, but then I was only a federal prosecutor for a limited time.
7.5.2007 5:51pm
Constitutional Crisis (mail):

As to your second and third quotes, I agree it is closer to the McDougall pardon that the Saturday Night Massacre. (I believe that is what Con. Crisis meant to write.)
I actually do think this is closer to the Massacre than to McDougall, if not in form than in substance. Whitewater had nothing to do with how the President was carrying out his Executive responsibilities, and McDougall spent 18 mos. in prison before being pardoned. By contrast, the Massacre raised questions of whether a President, exercising powers unarguably granted to him by the Constitution, had nonetheless abused that power in a manner so as to avoid an investigation into misconduct in his administration. I think the Libby commutation, though we do not know all of the details of why the President decided to grant that commutation, is much closer to the latter in substance.
7.5.2007 5:53pm
Jeremy Pierce (mail) (www):
My problem is that neither the "politically-motivated interpretation" nor the "following the law" interpretation makes any sense of Fitzgerald's motives. If he were politically motivated, why didn't he go after Rove? He had just as much on him in terms of inconsistent stories. But if he were just following the law, why did he go after Libby when he didn't think he had a case against Rove? The second piece of evidence suggests that he had it in for Libby in particular for some reason without wanting to do in Rove. But since both represent the administration, it can't have to do with that. I can't think of any other explanation except mere incompetence. Neither reflects well on Fitzgerald. His reasons for not indicting Rove should have counted against Libby, and the accounts of the jury afterward do suggest that the they were politically-motivated. I don't think the "kangaroo court" charge is all that far from the truth given the strange inconsistencies and the fact that so many jurors had their minds made up before the case was even presented and even admitted to wanting to stick it to Bush.
7.5.2007 5:58pm
M. Gross (mail):
Generally a strawman argument isn't literally a strawman (or two), but I suppose if you feel the need to make it so...
7.5.2007 6:01pm
AF:
[W]hy did he go after Libby when he didn't think he had a case against Rove?

Because he had a case against Libby and not Rove?

His reasons for not indicting Rove should have counted against Libby

Why?
7.5.2007 6:02pm
Constitutional Crisis (mail):
[W]hy did he go after Libby when he didn't think he had a case against Rove?

Because he had a case against Libby and not Rove?

His reasons for not indicting Rove should have counted against Libby

Why?
Lather. Rinse. Repeat.
7.5.2007 6:04pm
Richard A. (mail):
It would be helpful to us conservatives if you would cease using the term "conservative" to define such characters as the "con" above. He is in fact a neoconservative, which is a subspecies of liberal.
7.5.2007 6:05pm
uh clem (mail):
RE: Fitzgerald's motivation.

From where I sit, Fitzgerald is a straight arrow kind of guy who just hates being lied to. When he asks questions he expects truthful answers. If he lets one person get away with lying to him, then everybody will try. His professional ethos can't countenance lying. Orin can probably shed more light on this prosecutorial mindset.

That's the simplest explanation, and pace Dr Occam, it's the one I'll accept.

By way of analogy, if I'm on trial and behave as an absolute jackass in court, the contempt of court citations stick even if I'm acquitted. The "no underlying crime" excuse will fall flat on it's face.

As for why Libby and not Rove, Libby lied repeatedly and when given the chance to correct his testimony stood by it. Rove, OTOH, eventually answered Fitz's question to Fitz's satisfaction, even if it took multiple trips to the GJ to get it out of him. Rove caved, Libby wouldn't. It's that simple.
7.5.2007 6:13pm
Anderson (mail) (www):
Add to Uh Clem that Fitz didn't have to provide Libby and Rove with those multiple opportunities. If he'd really just wanted to prosecute somebody, he could've seized on the first contradiction and run with it.

I see Fitzgerald as a *conservative* prosecutor who would've been reasonably happy folding up the investigation with no charges against anybody. After all, he had plenty of work to do back in Illinois. And he didn't abuse the position like Starr et al. did -- leaks, etc.
7.5.2007 6:18pm
Felix Sulla:
Constitutional Crisis: I don't think we really disagree, I was merely conceding the (superficial) factual similarity between the Libby de-facto pardon and the McDougall pardon. I only meant to say that I think you meant to call it the "Saturday Night Massacre" and not the "Midnight Massacre."

In terms of the level of moral and ethical reprehensibility of what occurred and the constitutional import of same, the Libby not-quite-a-pardon-but-close-enough-for-government-work commutation is definitely closer to the massacre than to McDougall.
7.5.2007 6:19pm
AppSocRes (mail):
I just realized something that no one seems to have mentioned yet; or am I mistaken? The commutation of Libby's sentence still allows him to appeal the verdict. There seems to be a very good chance such an appeal will be effective. Some of the best legal minds in the country filed an amicus curiae brief suggesting this. Shouldn't everyone take a deep breath and wait for the outcome of the appeal? If, in fact, Libby wins on appeal, then all Bush did was keep Libby from being imprisoned while a legal error was being rectified. It hardly seems worthwhile for Professor Kerr to have become so upset if this is the final outcome.
7.5.2007 6:19pm
curious:
I second uh clem. The man has been a prosecutor for 20 years and, by the looks of it, prosecution will continue to be his career. Prosecutors who tolerate lying aren't going to be very effective . . .
7.5.2007 6:21pm
Anderson (mail) (www):
Some of the best legal minds in the country filed an amicus curiae brief suggesting this.

That designation was called into doubt by the contents of the brief.

Besides, Bush could've granted a *respite* if that was his concern. But as Bush stated, he didn't make his decision on the basis that the conviction was wrong; he made it on the basis that the punishment was excessive.

Shorter AppSocRes: Pretend that the facts are different, and THEN see what you think!
7.5.2007 6:22pm
Thank you Lord Kerr, guardian of our legal discourse!:
Certainly, though, there's a legitimate basis for an accusation of ideology-trumping-law when the conservative majority disregards past precedent (either expressly or sub silentio) to arrive at a ruling that is consistent with their presumed policy beliefs -- as they did, for example, in the school assignment cases, the campaign finance case, and Bowles v. Russell. That was a fair charge against the Warren Court, and to suggest that the current conservative majority cannot be held to the same standard because the four moderates "vote for the liberal side" is reductive.
7.5.2007 6:23pm
Elliot123 (mail):
"I recognize the difference between a pardon and commutation. Though "distinction without a difference" does come to mind, here."

1. $250,000 fine.
2. Two years probation.
3. Loss of law license.

I suppose the distinction pivots on the value of one's finances, time, and occupation. But it's interesting that a perfectly accurate word is rejected in favor of a less accurate word. Emotion trumps reason.
7.5.2007 6:23pm
Felix Sulla:

Some of the best legal minds in the country filed an amicus curiae brief suggesting this.
Yeah! I mean, come on...Alan Dershowitz signed that brief! That means as a matter of law Scooter will win his appeal, because otherwise it would mean federal judges disagreed with Dersh, which clearly can't happen if they are doing their jobs correctly.
7.5.2007 6:25pm
curious:
"I recognize the difference between a pardon and commutation. Though "distinction without a difference" does come to mind, here."

1. $250,000 fine.
2. Two years probation.
3. Loss of law license.

I suppose the distinction pivots on the value of one's finances, time, and occupation. But it's interesting that a perfectly accurate word is rejected in favor of a less accurate word. Emotion trumps reason.


1. $5 million defense fund
2. May not happen. Read here, here and here.
3. Likely, but I don't foresee him having any difficulty moving into a gov't relations shop or a think tank.
7.5.2007 6:28pm
Anderson (mail) (www):
1. $250,000 fine.

Paid by the Friends of Scooter.

2. Two years probation.

Not according to the statute; the judge is having to ask for briefs on whether Scooter can even *get* probation.

3. Loss of law license.

Right. His chance of ever earning an honest livelihood have been utterly laid waste. What conservative foundation would ever hire a convicted perjurer like Libby?
7.5.2007 6:28pm
Anderson (mail) (www):
Curious, quit plagiarizing telepathically, okay?
7.5.2007 6:29pm
curious:
Curious, quit plagiarizing telepathically, okay?

hahahahaha. made my day!
7.5.2007 6:30pm
OrinKerr:
AppSocRes, I didn't follow the trial closely, but I haven't seen any evidence that Libby has any particularly promising appellate issues.
7.5.2007 6:32pm
Anderson (mail) (www):
AppSocRes, I didn't follow the trial closely, but I haven't seen any evidence that Libby has any particularly promising appellate issues.

If the SCOTUS voted 5-4 to reverse Morrison in Libby's case, that would would prove both Lib *and* Con to be correct.
7.5.2007 6:34pm
AppSocRes (mail):
Anderson and Felix Sulla:

Look at the names on the brief I've mentioned: The brief has been well-publicized and the names have been published. Unless your legal credentials are better than all those who wrote the brief, stop sneering.

Meanwhile, can someone tell me whether Libby is still appealing. If so, wouldn't a successful appeal obviate all the arguments against the President's commutation?

Unless, of course, Anderson, Felix Sulla, et al. believe that whether or not Libby is found guilty he should serve time.
7.5.2007 6:35pm
Owen Hutchins (mail):

1. $250,000 fine.
2. Two years probation.
3. Loss of law license.

Like he's going to have to pay that out of his own pocket. Legal fund, anyone?

How hard is it for him to be on probation? Worried he might commit some others crimes and violate it?

Like he's going to have time to practice law, what with the talk show circuit and the conservative think-tanks and foundations that will be after him? He's a Persecuted Martyr, he's got it made.
7.5.2007 6:35pm
AppSocRes (mail):
OrinKerr: Thanks for being responsive. I'm still curious whether anyone knows if Libby plans to appeal the verdict. Does anyone know?
7.5.2007 6:37pm
Anderson (mail) (www):
AppSoc, legal arguments are not evaluated by the quality of the names on the brief, but on their own merits.

*This* brief could not convince any judge it's been presented to that Libby has realistic prospects on appeal.

And if you'll move past the cover to the actual brief, you'll see why.

Of course, it's easier to name-drop.
7.5.2007 6:38pm
Crust (mail):
Richard A.:
It would be helpful to us conservatives if you would cease using the term "conservative" to define such characters as the "con" above. He is in fact a neoconservative, which is a subspecies of liberal.
Is that so? So, for instance, the two leading conservative political journals in the United States (National Review and Weekly Standard) are populated with liberals. Good to know.
7.5.2007 6:39pm
Kazinski:
Orin:
"I believe the crime was knowingly leaking information about a covert agent's status."

But as a former federal prosecutor would you have continuted if within hours of opening the investigation, the perp came to your office, hat in hand with his lawyer and contritely confessed all? Why would you conclude that the admitted perp had committed no crime, but rush on, seeking some other unnamed persons that were not as culpable to punish for the crime?

That is issue I have trouble understanding with the Libby prosecution. I'd love for someone to explain to me why Amitage was not charged even after concealing evidence that was more germane to the case than the evidence Libby was accused of manufacturing. It is the selective prosecution in the case that leaves the door open for charges of a political witchhunt.
7.5.2007 6:46pm
Anderson (mail) (www):
the perp came to your office, hat in hand with his lawyer and contritely confessed all?

Kazinski, seeing as you have obviously ignored all the threads on this subject, it is no wonder that you "have trouble understanding."

Armitage was not the only leaker. Repeat that to yourself a few times, and then you will be smarter than 90% of the people on the right-hand side of the internet.

Libby was "selectively prosecuted" because he lied to the investigators and Armitage didn't. Why is that hard to understand?
7.5.2007 6:49pm
curious:
the perp

the "the leaker" argument has to be dropped eventually, doesn't it?
7.5.2007 6:50pm
curious:
touche, anderson. touche.
7.5.2007 6:51pm
OrinKerr:
Kazinski,

Yes, I would have continued, as explained in this post.
7.5.2007 6:56pm
Constitutional Crisis (mail):
If the SCOTUS voted 5-4 to reverse Morrison in Libby's case, that would would prove both Lib *and* Con to be correct.

If the SCOTUS voted 5-4 to reverse Morrison in Libby's case, that would would prove both Lib *and* Con to be correct.
Well-played, sir.
If the SCOTUS voted 5-4 to reverse Morrison in Libby's case, that would would prove both Lib *and* Con to be correct.
7.5.2007 6:57pm
byomtov (mail):
If, in fact, Libby wins on appeal, then all Bush did was keep Libby from being imprisoned while a legal error was being rectified.

So you favor a policy that says all convicted defendants should remain free pending the outcome of their appeals?
7.5.2007 6:59pm
Constitutional Crisis (mail):
Sorry. That last comment got bollocks up.
7.5.2007 6:59pm
WHOI Jacket:
How does this compare to the situation of John Deutch?
7.5.2007 7:00pm
Felix Sulla:
AppSocRes:

Unless your legal credentials are better than all those who wrote the brief, stop sneering.
Oh well, you really showed me, didn't you!
7.5.2007 7:03pm
get2djnow (mail) (www):
I've been enjoying how horrible it was for Libby to recall 1 (one) conversation over three years ago. He never told anyone the name of a covert CIA operative, yet the person who did was never prosecuted. Of course, the non-overzealous prosecutor wasn't doing a political hackjob for the anti-war troofers, was he?

With all that said, Sandy Burglar, who admitted to the theft of national security documents, was never deposed in a similar investigation into the subornation of crimes, and didn't serve a day in prison. I suppose that meets the non-violent test set by Mrs. Senator Rodham Clinton.
7.5.2007 7:08pm
Constitutional Crisis (mail):
There are a few contributors to this site, I believe who participated in briefing the court on behalf of Libby. I have repeatedly asked if any of those attorneys feel differently about their work now that they know the fix was in from the start.

This raises one of my pet peeves...There are any number of instances over the last few years where lawyers have enabled the Administration to consolidate power and chip away at rights. Undoubtedly, some ofthese attorneys believed they were acting out of principle. But I wonder if any of them bear the least bit of resentment at being used now that it's clear that, at least at the very top of the administration, there is such contempt of the law.
7.5.2007 7:12pm
Anderson (mail) (www):
Two can play this game of telepathy, Mister Curious!
7.5.2007 7:20pm
Pale Jewel:

Unless your legal credentials are better than all those who wrote the brief, stop sneering.


Ah, the good old ad hominem.

More interesting to me, however, is that no one picked up this:


Oh, and what are they, alcoholics? Why can't they meet over coffee? Do they need liquor in order to have a good time or engage in thoughtful discussion?


The very notion of this kind of conversation happening without alcohol... Well, it's clear that you chaps aren't English. ;)
7.5.2007 7:25pm
Allan (mail):
Get2djnow,

The cases of Sandy Berger and Scooter Libby are vastly different.

Most importantly, Sandy Berger admitted his crime. Libby did not.

To the extent they are the same, it is hard to see how one can carp about sentences. Both Berger and Libby were prosectuted by AUSAs from the same Department of Justice and both were sentenced by judges from the same judiciary and both were sentenced under the same sentencing guidelines. To blame Democrats for a light sentence when Democrats were not involved in the prosecution is insane.

If anything, Berger's defenders should be carping because Libby got commutation of his sentence and he did not.

That is not to say that Berger did not get off lightly. It is just that, perhaps, his crime, under the sentencing guidelines, was not as egregious.
7.5.2007 7:34pm
Anderson (mail) (www):
The very notion of this kind of conversation happening without alcohol... Well, it's clear that you chaps aren't English. ;)

The part I couldn't understand was, why do two lawyers have to share one beer?

Probably the liberal lawyer is still living with Mom and struggling to pay off Sallie Mae, and the conservative lawyer is at Kirkland &Ellis and takes pity on the liberal.

Or, heck, maybe Conservative's just keeping the beer to himself.
7.5.2007 7:35pm
Hattio (mail):
The notion of any conversation between attorneys not happening either in court or over drinks is hilarious.
7.5.2007 7:36pm
Elliot123 (mail):
Curious, Anderson, Owen,

Intresting. So, does this make it a pardon or commutation? Enmotion or reason?
7.5.2007 7:43pm
Constitutional Crisis (mail):
I have to drink just to read this website.
7.5.2007 7:44pm
David Sucher (mail) (www):
"You're a liberal because you think the government should help the little guy."

Huh? Are you serious, Orin? Do you think that's the difference? I don't think conservatives would agree at all. We believe that in fact it is conservative policies which create the greatest social good.
7.5.2007 7:47pm
Pale Jewel:
I'm amused that it's Liberal Lawyer who is the young, poor idealist... And that Conservative is too cheap to buy them each a beer, despite his cushy job.

Personally, I'd suggest they do what my lawyer friends here seem to favour - starting with one bottle of wine per person. Disagreements over Libby will thus be forgotten when the two are united in outrage when the bar runs out of snacks. Nothing like a common cause...
7.5.2007 7:50pm
KingOfMyCastle:
If the whole investigation was to find out who leaked a name, why wouldn't a person who leaked the name be prosecuted? (Armitage)

If his (admitted)name leaking wasn't serious enough to merit prosecution, then doesn't that make the whole investigation invalid?
7.5.2007 8:17pm
Dan Hamilton:
Question?
Does anyone believe that Bush would have commutted Libby's sentence if the Judge had allowed Libby to stay free until after his appeals?
7.5.2007 8:17pm
NickM (mail) (www):

NickM:
Clinton's pardon of his brother is also analogous to the Libby commutation.

Clinton's pardon of his brother is more closely analogous to the commutation of the Tooth Fairy.


Roger Clinton was pardoned by Bill Clinton. He's technically Bill's half-brother, but in common parlance calling him Bill's brother is accepted.

Did you forget about that, or were you trying to say something other than disputing my factual assertions?


For the people who think that 2 years supervised release (assuming it may still be given) is no big deal, remember that a DUI which would not land any random driver in jail for longer than it takes them to raise bail would be a prosecutable violation leading to potentially lengthy prison time for Libby. There are plenty more examples of conduct that's normally given a slap on the wrist by the justice system that are treated very seriously for a probationer, but that's probably the most common.

Nick
7.5.2007 8:27pm
Anderson (mail) (www):
Does anyone believe that Bush would have commutted Libby's sentence if the Judge had allowed Libby to stay free until after his appeals?

Only if the appeals were still pending on Bush's last day of office.

Obviously, the deal was "I keep mum, and you keep my ass out of jail."

--Elliott: it's a commutation, with benefits.
7.5.2007 9:39pm
curious:
Intresting. So, does this make it a pardon or commutation? Enmotion or reason?

It is still a commutation, but the (apparent, the conjecture of many) reasoning behind it is what is important.

By commuting and not pardoning it allows:

the Bush administration to continue to say there is an ongoing legal process that precludes them from commenting in substance about its actions (see tony snow's press conference earlier this week), thereby allowing it to sidestep addressing the actions of OVP/Cheney/Rove/etc., especially as it relates to Bush's earlier statement that he would fire anyone who was involved in leaking;

the appeal to go forward in the hopes that the D.C. Cir. or SCOTUS will deem the Special Counsel unconstitutional;

libby to keep quiet because his rights are affected by that ongoing litigation; and

others that I haven't thought of or listed here, I'm sure.

The statement that commuting still leaves punishment intact is a red herring.
7.5.2007 9:43pm
Anonymous Jim (mail):

If so, wouldn't a successful appeal obviate all the arguments against the President's commutation?


Only to a point. From what the Amici (mostly law professors) say is that there was an infirmity in how Fitzgerald was appointed. If Dershowitz is right and the verdict is overturned on those grounds, the DOJ could then refile the charges by using "normal" DOJ procedures and not appointing a quasi-special prosecutor. It would be interesting to see if the DOJ under GWB would re-file the charges. Also, it would be an interesting "angels dancing on the head of a pin" exercise to ponder what happens if a sentence that is commuted and then the underlying sentence was overturned on a procedural matter.

I think that the DOJ (in addition to Fitzgerald) should fight the amici. Basically the argument the amici are making is that DOJ is so incompetent that it did not know what the law is. If there is any institutional pride left there, they should fight that.
7.5.2007 10:08pm
Q the Enchanter (mail) (www):
Orin,

As you well know, case outcomes are at least heavily modulated by the policy views of the deciding judges; as such, policy preference will often, perhaps even almost uniformly, be dispositive in close cases. Granted that Lib might be strictly incorrect in characterizing this phenomenon as a function of "purely political" judging, he seems a lot closer to a correct characterization than Con (who I think, given the view you'd want to impute to him, has to hold that political preference is practically inert).

Anyway, even if we grant Con's rhetorically realist response to Lib's argument about SCOTUS, then (not withstanding Lib's fatuous rejoinder appealing to certain general principles to defend the uniform liberalness of decisions by the liberal block of Justices instead of granting that, yes, the liberal block is "purely political" too), such a concession would only support the Lib-ish idea that inquiry into a judicial nominee's political views really ought to be central in the confirmation process. (Whereas instead we are told proper adherence by the Senate to its constitutional role entails completely bracketing out the nominee's political philosophy and policy preferences.)

Moreover, as you've pointed out elsewhere, the uniformly conservative party affiliation of Libby's putative persecutors creates, shall we say, certain demographic infelicities for the "purely political prosecution" theory -- infelicities that don't have an analogue in the corresponding argument about SCOTUS.

All in all, then, Lib's arguments seem far more defensible than Con's, and their respective positions seem hardly analogous.

Purely politically yours,

"Q"
7.5.2007 10:17pm
Crust (mail):
NickM, I'm embarrassed to admit that I'd forgotten/misremembered that Clinton pardoned his (half-) brother.
7.5.2007 10:57pm
Mark Field (mail):

Also, it would be an interesting "angels dancing on the head of a pin" exercise to ponder what happens if a sentence that is commuted and then the underlying sentence was overturned on a procedural matter.


I wondered about that too. Let's suppose the Circuit reverses, but on such grounds that a re-trial is possible. Let's further suppose that a Dem wins in 2008 and that the appellate process leaves the decision to re-try in the hands of the new Administration. That would leave Mr. Libby out on a limb.

Since I think we can rule out this scenario, I expect either Bush to pardon him or Libby to drop the appeal.
7.5.2007 11:13pm
JM Hanes (mail):
Orin Kerr:

You're just one step away from a 2nd career in the MSM -- unless, of course, you're not laying claim to a putative sweet spot between extremists.
7.5.2007 11:29pm
Daniel Chapman (mail):
"I feel dumber having read this dialogue. It looks like every other "exchange" (which is too kind of a word for it) of opinions on this and most other blogs dealing with political and legal topics and does not reflect any intelligent liberal or conservative legal positions."

... 83 comments later... still going.

Well I found it amusing anyway.
7.6.2007 12:19am
LM (mail):
Orin,

I think you're confusing politics with ideology.

The complaint about the Libby prosecution is indeed that it was politically motivated, and therefore a perversion of what should be a blind judicial process.

The typical objection to the conservative SCOTUS majority is that their ideology is inimical to the values and norms at the heart of the critics' ideology; not that the Justices are perverting the legal process by interpreting the Constitution according to their (offending) ideology. The rare exception to this would be something like Bush v Gore, which was arguably a partisan departure from conservative ideology.

The criticism of the Libby prosecution is more of an assault on the character and motives of those involved (prosecutors and judges). The criticism of the SCOTUS Justices, while just as passionate, goes to their beliefs and values, not their integrity.
7.6.2007 12:31am
BQ:
I really don't see the analogy to Roger Clinton, given that he had already served his sentence.
7.6.2007 12:40am
paul lukasiak (mail):

The criticism of the Libby prosecution is more of an assault on the character and motives of those involved (prosecutors and judges). The criticism of the SCOTUS Justices, while just as passionate, goes to their beliefs and values, not their integrity.


I would have to disagree with this, because the criticism of SCOTUS judges is that they permit their political ideology to determine their decisions, i.e. their decisions are not based on established interpretations of text and precedent, rather text and precedent are interpreted to arrive at results consistent with the ideology of the judges.

In the case of the conservative judges, the shear absurdity of their arguments and reasoning betray their corruption. How can anyone seriously argue that the phrase "Bong Hits 4 Jesus" advocates or celebrates illegal behavior (leaving aside for the moment the question of whether advocacy or celebration of illegal acts can be restricted under the First Amendment.) Yet it was because it was "reasonable" to interpret that phrase in that manner that the radical right justified allowing students to be punished by school authorities to be punished for displaying a banner with that phrase off of school property. Only an corrupt ideologue would twist the law to the extent that they would ever attempt this kind of reasoning.

Another sign of corruption is the perversion of precedent -- the very idea that Brown v. Board of Ed could be used to justify school districts using race as one of a variety of factors in ensuring school diversity doesn't pass the laugh test. Yet this is exactly what happened this term.

Bush v Gore was just the beginning... Scalia, Kennedy, and Thomas are the remaining justices that laid the groundwork for the obvious perversion of law and precedent in pursuit of purely political/ideological objectives -- and Roberts and Alito have embraced that same approach during this term.
7.6.2007 12:50am
LM (mail):
If your view is typical of that held by critics of the conservative wing of the Court, then I stand corrected. Maybe it's just me who thinks they arrive at their decisions in good faith, even while being outraged by the consequences for what I consider important.
7.6.2007 1:30am
Bruce Hayden (mail) (www):
First, in a subsequent thread, there seems some evidence that Libby paid his own fine. Not dispositive, but highly suggestive.

Secondly, part of the argument against the Libby prison term was that it was significantly enhanced based on the alleged severity of the originally envisioned charges. Without the enhancement, it would have been likely somewhere around a year and a half or so. But Fitzgerald knew before interviewing Libby that: 1) Libby was not the leaker to Novak, and 2) it was unlikely that he could get a conviction against anyone for violation of the IIPA (due to any number of reasons, including lack of care by the CIA in protecting Plame's "covert" identity). Also, whether an IIPA violation had occurred was specifically disclaimed by the prosecution before trial, but was arguably brought up for the sentencing, when the defense could not rebut.
7.6.2007 6:41am
Bruce Hayden (mail) (www):
The question of what happens if Libby wins his appeal is somewhat interesting. I think that the reason for the commutation of his prison sentence is precisely that at least some (maybe the VP?) in the Administration believe that Libby will ultimately prevail there, and that serving time for what they believe to be at least a politically initiated prosecution, in which Libby is ultimately acquitted, would be unfair. Note that if his case is reversed and he is ultimately acquitted, he gets (presumably) his money back, his right to vote, his law license, etc., whereas he could never get back time served. (And that is why I think the argument that the commutation of sentence is equivalent to a pardon is nonsense).

In any case, it is unlikely that Libby would be prosecuted a second time, unless by a special prosecutor. Part of the allegations in his attempts to get his conviction at least reversed are that Fitz violated DoJ procedures, etc. in prosecuting him in the first place. Obviously, Fitz's claim is that he was effectively exempted from them by Comey's delegations of authority, but that brings up question of whether Fitz then was an inferior officer, or whether he needed to have been confirmed by the Senate in order to have the power he had.

In any case, even assuming that Libby is reprosecuted, could a subsequent court impose a prison sentence on him? I would think that this would be essentially a Double Jeopardy question. I know less than most here, but my memory of this area of the law was that once a court refuses to impose a death penalty against a defendant, a subsequent trial can't later impose such. I would think that the difference between no prison and, for example, three years of prison, would be analogous. But I am sure that there is relevant case law here.

But that presupposes that the commutation of the prison time would not apply to any subsequent prosecution. My gut feeling (esp. being sympathetic to Libby) is that it should. But again, I just don't know enough of the law here to do more than guess.
7.6.2007 7:01am
paul lukasiak (mail):

If your view is typical of that held by critics of the conservative wing of the Court, then I stand corrected. Maybe it's just me who thinks they arrive at their decisions in good faith, even while being outraged by the consequences for what I consider important.


Well, when a decision of the court is absurd on its face, you have to assume that either the majority are idiots, or that they are not acting in good faith.
7.6.2007 10:09am
uh clem (mail):
...there seems some evidence that Libby paid his own fine. Not dispositive, but highly suggestive.

I don't think that there's much question whether he paid the fine himself - the check bore his name. The question is whether he's going to get re-imbursed for it.

For instance, when I go on a business trip, I pay the airfare and hotels out of my own pocket and then file forms to get re-imbursed. I suppose in a narrow technical sense one could argue that I pay my own way, but but it would be misleading - the company pays, not me.

So, will the Libby defense fund find a way to reimburse Scooter for his expenses? Will it be obvious that they've done so? The answers: yes, and probably not.

So, I don't know where you're going with the "but Scooter paid the fine himself out of his own pocket" meme. It's not very convincing.
7.6.2007 10:18am
badger (mail):
OK: It seems to me that the liberal hamstrings himself in two ways:

1. By calling the judges "totally" political he weds himself to an absolute that is almost impossible to hold. Since his absolute is referring to another person's mindset, it would probably be impossible to defend in any context (i.e. "My coworker totally hates me.")

2. I'd say the strongest argument for partisan motivations on the part of Roberts and Alito is this strange form of judicial minimalism they have practiced in many of this years biggest 5-4 decisions, where they undermine major "liberal" precedents without actually overturning them. In terms of legal theory, or even legal pragmatism, this kabuki approach to jurisprudence makes little sense. However, one could view it as an attempt to make big conservative strides in judicial opinions, while blunting the political backlash that could lead to more liberal judges being appointed.

The liberal, if he really were as able a debater as his conservative opponent would have made this the centerpiece of his argument.
7.6.2007 11:15am
MDJD2B (mail):

As to your second and third quotes, I agree it is closer to the McDougall pardon that the Saturday Night Massacre. (I believe that is what Con. Crisis meant to write.) So what? Is your point merely to argue by inference another tired "Clinton did it!"? I seem to recall Clinton having to undergo some public and rather expensive proceedings in relation to his perjury.


Precisely. What happened to President Clinton was jsut right. He went through some harrowing and expensive public humiliation, but did not go to jail. The same is appropriate for Libby. People should not commit perjury or obstruct justice, but the punishment should be tailored to the motive and the effect, IMO.
7.6.2007 11:54am
Davide:
Orin,

Thanks for the responses. I appreciate them.

As to your point about the crime, I see that you said that "I believe the crime was knowingly leaking information about a covert agent's status." What is the statutory analysis that Plame was, as a matter of law, covert under the appplicable statute? I see you don't provide that analysis, and, to be honest, I don't think you can.

I don't think prosecutors should be given carte blanche to investigate individuals for underlying crimes that they know they cannot prove. And, if they can prove the crime, they should charge it. In this matter, Libby was not charged with the underlying crime. Nor was anyone else for that matter.

So what we're left with are prosecutors who use collateral crimes of obstruction deriving from unchecked, endless 'investigations.' And no, I don't think that's a salutary result. Far from it.
7.6.2007 12:34pm
Davide:
Orin,

As to your second note, I'm in disagreement that prosecutors should be able to indict and convict for obstruction when there is no underlying crime that can be proved. This seems to lead to a sort of floating, endless, indefinite 'investigation' that becomes its own end. All a prosecutor needs to do is catch someone in a lie and then prosecute that individual, no matter whether that lie is relevant to anything.

As in the Libby case: what did Libby's lie matter? Assume he told the truth-- would that have aided the prosecution in convivting someone for outing Plame? I don't see anyone so arguing. Now assume he lied, as he did -- so what? Did that affect any chance to convict anyone?

As to your concerns about people "flat out lying" to the government-- I think that when government agents convict people for any sort of lie, that chills individuals' legitimate desire to speak to law enforcement, when such speech can become the gravamen of a criminal charge. I'm more concerned about that chilling effect, and the very broad discretion granted prosecutors to charge people, based on items that are tenuously related to actual crimes.
7.6.2007 12:39pm
Lycurgus (mail):
I understand Prof. Kerr's view concerning the prosecutor's need to continue an obstruction investigation when the government's ability to determine whether a crime was in fact committed is hindered. BUT, is that really the case with the Plame outing?

Under the statute, the predicate seems quite clear for the unlawful disclosure of a covert agent -- service over seas within 5 years, agency efforts to keep the agent's name confidential, and knowledge of that status when making the disclosure (I paraphrase my understanding of the statute). The only element that Libby could have obstructed in my view is whether Libby (or others) knew about that confidential status -- not knowledge of her classified or "covert" status in the broader non-statutory sense -- but covert under the statute.

Fitzgerald has never demonstrated or discussed that his investigation and determination of the predicate offense was obstructed. If there was and could be no predicate offense, then it is quite clear that continuing the special prosectuion was an abuse of prosecutorial power. That, in my view, is the fundamental problem with the Fitzgerald prosecution and is the foundation for labeling this as a "political" prosecution. Afterall, most people think the real purpose of disclosing Plame's identity was to fight Joe Wilson's political hit on the White House's case for the Iraq war, and since when is responding to politcal foes, even in such an unsavory manner, a criminal act?
7.6.2007 1:01pm
Deoxy (mail):
"Suggesting that Fitzgerald and Walton acted out of partisan motives is absurd."

I think the point is that existence of the investigation AT ALL was purely political. FAR worse leaks have been commonplace for the last several years, but only the one that could be spun as coming from the Whitehouse (and thus be used to hurt a Rep. administration) got a huge outcry from the press about needing an investigation.
7.6.2007 1:07pm
badger (mail):
Deoxy: How convenient that your post about who started the investigation leaves out the people who, you know, actually requested and started the investigation, namely, the CIA and the Ashcroft DOJ. The CIA, in order to maintain the trust of those employees whose lives depend on their covert status, requested an investigation into the leak. Ashcroft recused himself and James Comey, a Bush appointee, selected Fitzgerald. Now, maybe they gave a darn about what the "press" was saying and maybe they didn't, but what are we to make of your omission of such fundamentally important facts?

Also, what makes you so sure that many of the other leaks you are so troubled by didn't also receive investigations? Likely none of them required special prosecutors because top Administration officials were not implicated.
7.6.2007 1:43pm
Mark Field (mail):

As to your second note, I'm in disagreement that prosecutors should be able to indict and convict for obstruction when there is no underlying crime that can be proved. This seems to lead to a sort of floating, endless, indefinite 'investigation' that becomes its own end. All a prosecutor needs to do is catch someone in a lie and then prosecute that individual, no matter whether that lie is relevant to anything.


What was the "underlying crime" in the Clinton case?
7.6.2007 1:48pm
Chimaxx (mail):
Paul Lukasiak:

"In the case of the conservative judges, the shear absurdity of their arguments and reasoning betray their corruption. How can anyone seriously argue that the phrase "Bong Hits 4 Jesus" advocates or celebrates illegal behavior (leaving aside for the moment the question of whether advocacy or celebration of illegal acts can be restricted under the First Amendment.) Yet it was because it was "reasonable" to interpret that phrase in that manner that the radical right justified allowing students to be punished by school authorities...or displaying a banner with that phrase off of school property. Only an corrupt ideologue would twist the law to the extent that they would ever attempt this kind of reasoning."

I agree completely. This is where the court's ideological/anti-drug blinders got in the way of common sense understanding of the language. this was Raich for the high school set. If the specter of the evil ganja made court conservatives set aside their devotion to federalism and their skepticism of the ever-expanding commerce clause in Raich, in the "Bong Hits 4 Jesus" case, they set aside their common sense. It is no more reasonable to interpret the phrase "Bong Hits 4 Jesus" as a pro-drug message than it would be to interpret "Nuke the Whales 4 Jesus" as promoting interspecies warfare, or to interpret Freud's "Sometimes a cigar is just a cigar" as a message advocating smoking.

The whole rest of the decision depends on accepting the absurd-on-its-face claim that the school officials' tortured misreading of the text is somehow "reasonable." Even if the school officials are deconstructionists, that doesn't make their willful misreading "reasonable." And that the misreading was willful is clear from the fact that all the reports on this story suggest that they had their sights on this kid for a long time and were looking for something to hang him with.
7.6.2007 1:58pm
Davide:
Mark,

What I'm concerned about are free-wheeling prosecutors who can't prove crimes, and then go off an 'investigate' people.

Clinton's case was a civil one, not a criminal one. In that case, Clinton was alleged to have sexually harassed Paula Jones. I believe the issue there was whether Clinton had harassed other women sexually who worked with him. Ms. Lewinsky was one such woman. He was ordered by a federal judge to answer the question if he had sexual relations with Lewinsky, and said no. He lied.

Clinton's lie mattered, whereas Libby's did not. In Clinton's case, if he did have sex with Monica Lewinsky, it might show a pattern of conduct that made it more likely than not that Clinton harasses and/or has sex with female employees. Jones was such an employee. If Clinton lied, it makes Jones' theory less plausible.

Not so in Libby's case. Libby said he didn't leak Plame's name when he did. Even if he did leak the name, there is no way he could be charged with any underlying crime. That is because the covert agent statute is so tightly written that he can't be liable for that conduct. That's why, when Fitzgerald found out about the lie, he DID NOT charge Libby. Nor did he charge Armitage. Thus, his lie was of no consequence. If he told the truth, and said he leaked Plame's name, again, no different result. He would not be charged because, regardless of whether you like the result, no crime resulted.

That's the difference.
7.6.2007 2:52pm
Smokey:
Interesting editorial today from the Washington Times:

Article published Jul 6, 2007
Hair-raising stuff from good ol' Bubba


July 6, 2007

by Wesley Pruden

Who would have thought that such a quaint and happy place like Arkansas, where nothing much happens to torment the razorbacks, disturb the boll weevils or curdle the barbecue sauce, could furnish the modern definition of "chutzpah."

"Chutzpah," a Yiddish word more often heard in Brooklyn or the Bronx and not easily recognized by the several varieties of Baptists in the land of deep, dark nights and the magic huckleberry, has heretofore been defined as "the attitude shown by the man who kills his parents and begs the court to shower mercy on a poor orphan."

Now comes Bill Clinton, who auctioned pardons in the last hours of his presidency, and his shrill surrogate to berate George W. Bush for reluctantly commuting the prison sentence of Scooter Libby. The president stopped short of granting a pardon. Scooter had nothing to offer a president but a plea for mercy. (He paid the $250,000 fine yesterday.) But the Clintons' record for never having shown shame for their perversions and peccadillos remains unique, intact and unchallenged.

Most men in his position would go miles out of their way to avoid talking about pardons, but good ol' Bubba, with his skill at mangling and manipulating the language and parsing phrases ("it depends on what the meaning of 'is' is"), was eager to talk about how he conducted his auction. "I think there are guidelines for what happens when somebody is convicted," the former president said. He should know. He was indicted once himself for high crimes and misdemeanors, and beat the rap only because several jurors were more eager to preserve the tattered dignity of the presidency than to mete justice. Scooter, having fallen into a trap baited by the special prosecutor and an obliging judge, had no confederates on his jury.

Bubba offered a hair-raising account of George W.'s sin. "You've got to understand, [the Libby commutation] is consistent with [the Bush] philosophy, they believe that they should be able to do what they want to do, that the law is a minor obstacle." Scooter was saved from prison, he said, only to protect Dick Cheney. "What we know is that Libby was carrying out the implicit or explicit wishes of the vice president, or maybe the president as well, in the further effort to stifle dissent."

Even Al Gore, who canceled his scheduled blast of hot air at a save-the-planet rally at Wimbledon in the wake of the arrest of his son in a Los Angeles drug bust, chimed in with a ringing plea for tough justice (for Scooter): "It's different because in his case the person involved is charged with activities that involved knowledge of what his superiors in the White House did." Say what? Anyway, different. Just take Al's word for it.

The Marc Rich pardon actually is different. Mr. Rich is first of all a Democrat, and once indicted beat it out of the country just ahead of the sheriff and the posse. He decided to stay in Switzerland, trade in his old wife for a young blonde model, change the name of his company and start a new life. He assigned the discarded wife to lean on Bubba for another "do-over" for the indicted swindler. Denise Rich, the old wife, had raised $1 million for the party and had contributed $10,000 to the Clinton legal defense fund, and even gave Hillary $7,300 worth of tables, chairs, pots, pans and maybe even a mop for the new house. Bubba was raising money for his library in Little Rock and needed friends like Denise and Marc. What was one more pardon for generous friends in the final hours of a day when you were dispensing 140 pardons. Aren't friends nice?

The White House had a little fun with the Clintons yesterday. "I don't know what 'Arkansan' is for 'chutzpah,' but this is a gigantic case of it," Tony Snow, the president's press agent, said. When someone reminded him that Rep. John Conyers of Michigan, chairman of one of the House committees assigned to harass people, had scheduled hearings on the Libby commutation, he replied: "Well, fine, knock himself out. I mean, perfectly happy. And while he's at it, why doesn't he look at Jan. 20, 2001." He could ask Denise Rich. That's the day she took her checkbook to auction.

Wesley Pruden is editor in chief of The Times
7.6.2007 3:16pm
Mark Field (mail):

Clinton's lie mattered, whereas Libby's did not.


No, that evidence was not material to the Jones claim. That's why the trial court dismissed Jones on summary judgment.

In any case, now you're shifting your ground. You have defended Libby on the claim that there was no "underlying crime", NOT on the ground that his testimony "didn't matter". By the way, if his testimony "didn't matter", then it couldn't have been perjurious -- the statute requires that the statements be material. If you were correct, the trial judge should have dismissed that charge. But he didn't; in fact, to the best of my knowledge, Libby never even made that argument in court.

Returning now to Clinton. Assuming Clinton did perjure himself (assuming, that is, that his testimony was both false and material), there still was no "underlying crime". Thus, by the logic of your posts defending Libby, it would have been inappropriate for Starr to pursue perjury counts against Clinton and equally inappropriate for the House to impeach him for a "crime".

I'm not going to bother with the remainder of your post because the errors in it have been pointed out repeatedly in the various threads here.
7.6.2007 4:44pm
Davide:
Mark,

Your response seems ill-informed. The information was relevant to the proceeding. You might recall that Clinton's lawyers argued that he did not have to answer the Lewinsky queries because, as you claim, they were "not material." That argument was wrong and was rejected. Judge Wright ordered him to respond.

He did and lied. That's the difference.

In the Libby case, there was no contested hearing about whether Fitzgerald had the right to query Libby about the matter. And, as best as we all can tell, no underlying charge could conceivably have been brought.

And, by the way, I agree with you about Clinton: there was no need for Starr to have investigated him for his lie if, AFTER the lie was revealed, it was found not to have been material. Thus I think the Starr prosecution was wrong. I did not say it was right. I merely think that Clinton's lie after a contested court order, in a civil case, designed to thwart a civil litigant's right to recover, was wrong and punishable by contempt, and properly so.

The government running ramshackle on the issue was not warranted. I agree with that. So did the Independent Counsel-- no charges were brought because of Clinton's lie. Neither Starr nor his successor Ray brought any charges regarding the issue.
7.6.2007 5:52pm
Ryan Waxx (mail):
Note how the author, who controls both sides of the conversation, manipulates it: He takes the lib's accusation of 'conservative judges are political', and uses that to make the con make the reverse accusation. Why do it that way? Because its a strategy:

He focuses on the conservative's accusation, and produces a statement, which he then produces at the end as the lib's riposte to the "The Libby prosecution was politically motivated" - thereby implying that the con is hypocritical for not accepting his 'own' logic.

Note that his little rhetorical device falls apart if you merely reverse the order of the commentators: if the lib goes second and does the "isn't that just your politics speaking?" quote, the entire piece falls apart because now the lib can't use it as a comeback.

That's why people seldom use the Socratic dialogue method nowadays... if you find yourself needing the kind of utter control over both sides of the conversation that that method provides, then your point was probably bogus in the first place.
7.6.2007 6:27pm
LM (mail):

[...] good ol' Bubba, with his skill at mangling and manipulating the language and parsing phrases ("it depends on what the meaning of 'is' is") [...].

On this point a little perspective is in order, and I think long overdue. However tailor-made "it depends on what the meaning of 'is' is" might have been for populist appeal to anti-intellectualism, I'd hope that even the most conservative VC'ers would acknowledge that as lawyers much of what we do, both on sites like this one and at our jobs, amounts to arguing over "what the meaning of 'is' is."
7.6.2007 6:39pm
Ryan Waxx (mail):
Why, I thimk us consoovative... cernservatave... er us right-thinkers done been insulted. Don't be callin us anti-interrigaters... er I mean what you said unless you wanna step outside, lawyer-boy.
7.6.2007 6:56pm
Mark Field (mail):

The government running ramshackle on the issue was not warranted. I agree with that.


Since that makes you consistent with your defense of Libby, I'll leave it at that. This isn't really the place to re-hash the whole Clinton issue. I was just wondering if you were consistent enough to apply the same standard; you are.
7.6.2007 8:28pm
highcotton (mail):
Although I'm awfully late to the party (who knew remembered that putting a space between my first and last names would prevent logging in?), I wanted to respond to the very perceptive comments/questions posted by Jeremy Pierce way, way upthread.

Mr. Pierce, you expressed some confusion about why both Libby and Rove were initially targeted and seemed to be more or less in the same boat, but one was indicted and one wasn't. Very perplexing, isn't it? Allow me to share a little of the backstory that will, hopefully, shed some light on Rove's miraculous 'escape' vs. Libby's unending legal nightmare.

Long before Patrick Fitzgerald was in charge of the Chicago fiefdom, he was an eager young prosecutor in the southern district of NY. He (along with many other eager young prosecutors) spent a great deal of time over the course of several years compiling evidence of illegal activity against Marc Rich, Evil Entrepeneur. As most people know, just before the dragnet closed in, Rich escaped to Switzerland. The young legal eagles were really, really bummed. They spent a lot more time and effort and money trying to figure out ways to extradite, etc., so this really Bad Guy wouldn't escape their clutches.

Then, to their collective horror and dismay, Bill Clinton issued a full pardon to Marc Rich in the final hours of his presidency. That basically made a mockery of everything they stood for. Denise Rich contributed huge amounts of $$ to the Clinton Library, and she got her reward. They got a kick in the b*lls.

The whole place erupted. It's hard to describe the controversy this decision created. Some of those young guns swore a blood oath to right this wrong no matter what it took.

So what does this have to do with the price of tea in China? Well, would you understand if I told you that the lawyer Marc Rich hired to defend him was named I. 'Scooter' Libby? And would you find it of any significance that Comey, who chose Fitzgerald and gave him unlimited powers, worked in the same office with Fitz as a fellow prosecutor in the so. district of NY during the Marc Rich fiasco?

I'm not much into conspiracy theories. I leave those to Oliver Stone. But, given the many inexplicable twists and turns of this case, to completely ignore that sort of background information is stone cold stupid.

The word was that Scooter's legal argument was so compelling that Clinton couldn't ignore it. I don't buy that. First, William Jefferson Clinton never met a legal argument he didn't find compelling if it suited his purposes. He's the very embodiment of the notion of a 'political whore'.

Secondly (and on the other side of the coin), I find it very worrisome that Libby would willingly become the 'mouthpiece' for a guy who was, by the great majority of accounts, on the wrong side of the law. But, hey, that's what you lawyers do -- defend people accused of doing wrong.

Libby's mistake, as far as I can tell, was defending a guy Patrick Fitzgerald staked his career on putting in jail. That's why Rove got off scot-free and Libby got publicly crucified.

Perhaps all the 'threads' will pull together for you now, Mr. Pierce.
7.6.2007 9:35pm
LM (mail):

Why, I thimk us consoovative... cernservatave... er us right-thinkers done been insulted. Don't be callin us anti-interrigaters... er I mean what you said unless you wanna step outside, lawyer-boy.

I am outside.

And I should have said Clinton-haters, not conservatives.

I doubt that will change your status, but thanks for the heads up, and apologies to anyone I mistakenly implicated.
7.6.2007 9:40pm
David M. Nieporent (www):
No, that evidence was not material to the Jones claim. That's why the trial court dismissed Jones on summary judgment.
Just to be clear, because there's a common factual misconception: Judge Wright did not rule at any point that the evidence was not material. She went out of her way to explain this.

(Unless your point is that because Jones had no case, no evidence could be material.)
7.6.2007 10:11pm
a knight (mail) (www):
Tis a shame. I was looking forward to a SCOTUS appeal of the Libby conviction.
We cannot imagine how it could be true that falsely denying guilt in a Government investigation does not pervert a governmental function. Certainly the investigation of wrongdoing is a proper governmental function; and since it is the very purpose of an investigation to uncover the truth, any falsehood relating to the subject of the investigation perverts that function. It could be argued, perhaps, that a disbelieved falsehood does not pervert an investigation. But making the existence of this crime turn upon the credulousness of the federal investigator (or the persuasiveness of the liar) would be exceedingly strange; such a defense to the analogous crime of perjury is certainly unheard of. Moreover, as we shall see, the only support for the "perversion of governmental functions" limitation is a statement of this Court referring to the possibility (as opposed to the certainty) of perversion of function-a possibility that exists whenever investigators are told a falsehood relevant to their task.

Justice Antonin Scalia, Brogan v. U.S. - No. 96-1579 (1997)

Poor Scooter, caught up in the cruel vicissitudes of Justice without even a 'lemma' to stand upon...Of course he could have either invoked his Fifth Amendment right to not incriminate himself, or he could have told the truth, while he was responding to Federal Agents in the course of their official duties, and while testifying under oath to the Grand Jury. For those who attempt to justify Bush's act with Clinton's pardons I ask, Do Two Wrongs Now Make a Righty?

"But BillyJeff did it first", is a rationalisation not even worthy of a twelve year old. There was once a time when Conservatives could be looked up upon even in disagreement with them, because they would stand firm upon their principles, come hell or high-water, but that was some time ago. This is direct evidence that the bipolar polity is obscenely antithetical to Liberty and Justice.
7.7.2007 5:27am