08 Jun 2007

Right and Left Responses To The Libby Sentence

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Over at National Review’s The Corner, those jolly little tricoteuses Andrew McCarthy and John Derbyshire were having a pleasant time chatting yesterday as Scooter Libby’s tumbril rolled by.

McCarthy was conflicted because he has friends on both sides (!), and besides he just wasn’t sure that Libby wasn’t really guilty after all. After all, the prosecutor, the New York Times, many of his friends, and a DC jury all said so.

Witnesses have varying recollections, and juries sort it out. The evidence that Libby lied, rather than that he was confused, was compelling.

And class-warrior John Derbyshire just couldn’t see getting bent out of shape over the fate of somebody like Libby.

..compare the likely plights of Libby and the two Border Agents.

When state power rolls over little people like Compean and Ramos, my sympathies are stirred. Libby’s not a little person. He’s rich and terrifically well-connected. He’s not going to get beaten up in jail (as Ramos has been). He’ll have plenty of lucrative work opportunities after release. He will… be all right.

I wish the world were free of wrongs, but it isn’t, and never will be. In the scale of wrongs, and consequent suffering, that I read about every day, this one doesn’t seem worth bothering with.

Meanwhile Susan Estrich, speaking from the left, no less, took a considerably more intellectually and morally responsive position.

I suppose I should be pleased about the tough sentence handed down by Judge Reggie Walton, sentencing the vice president’s former Chief of Staff Scooter Libby to serve 30 months in prison. After all, he’s a Republican, and I’m a Democrat; I’m an opponent of the war, and he worked for one of its architects. I’m certainly no fan of his boss, Dick Cheney, one of the toughest hardball players to occupy the office of vice president. Former Ambassador Joe Wilson was practically gloating this morning when asked to comment on the sentence, declaring it a victory for the rule of law.


Having taught law for more years than I want to count anymore, and criminal law in particular, I know all the arguments about how the rule of law depends on everyone telling the truth, cooperating with criminal investigations, not trying to protect their bosses or those around them. I understand that people in high places have as much responsibility, or more, than the rest of us to follow the law and give their evidence, and that when they don’t, their years of public service are no excuse.

Being chief of staff for the vice president is a bruising job, but also an exciting one. If Scooter Libby hadn’t messed up, he’d be sitting pretty in a high-priced law firm right now, making a fortune not because his legal skills were better than anyone else’s, but because his contacts and connections were. So with the good goes the bad; with the visibility goes the scrutiny; with the fame comes the price. Valerie Plame’s career has been ruined. Why shouldn’t his be?

The only problem here is that there was no underlying crime. The answer to the question Special Prosecutor Patrick Fitzgerald was initially appointed to investigate — had anyone violated the law in disclosing Ms. Plame’s name in their effort to discredit her husband’s criticism of the administration’s war policy — was no. No one violated what we used to call the “Agents Law.” Dick Armitage, the guy who admits he gave out her name in the first place, isn’t facing time; nor are Karl Rove, Dick Cheney, or any of the reporters or news organizations who didn’t hesitate to disclose her identity.

Libby is in trouble not for what he did, but because he wasn’t as careful as the others during his interviews and grand jury testimony.

If he’d just said, “I don’t recall” a hundred times, or even invoked the Fifth (whether properly or not, following the Monica Goodling approach), he wouldn’t be bankrupt, ruined, disgraced and heading to prison.

There is something troubling about prosecutors using perjury and obstruction of justice to turn into criminals people who haven’t committed any other crime. Instead of using the grand jury as a tool for investigating other criminal activity, it becomes the forum for creating criminal conduct. The role of the FBI and federal prosecutors becomes one of creating criminals instead of catching them. Technically, I know, it’s not entrapment, but it’s still different than the usual business of tracking down those who have violated the law and punishing them for their bad acts. The investigation doesn’t solve the crime; it creates it.

This time it was a pro-war Republican caught in the snare, which is why many liberals are cheering. But what goes around comes around, and I wonder if my friends would feel the same way if this technique were used to indict, convict and imprison one of our friends.

Not a good day for the NR punditocracy.


Hat tip to David L. Larkin.


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