I posed this question at Patterico's fine site, but let me reprise it here - obviously, this is strictly a hypothetical question about Crime and Punishment:
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. Chairman, 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. A few days pass and two reports reach the prosecutor’s desk:
(a) Prof. Jones lied - he was, in fact, at the university meeting with a group of trustees to plot the overthrow of the Dean during the critical interval, rather than in Atlantic City.
(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.
I'm also curious to see what I think...
UPDATE: OK, that was too brief, evidently - the hypothetical was meant as a limiting case, not a perfect analogy. If in a case where there is clearly no underlying crime folks still think a prosecution is legal and/or appropriate, then in the more ambiguous Libby case they might reasonably come to the same answer. Geez, I had posted the day before that I was not clear about Ms. Plames's covert status - did I forget that overnight?
A similar logical approach prevailed in the Russert element of the charges against Libby - jurors were asked whether (a) Libby lied when he claimed Russert told Libby about Ms. Plame, or (b) Libby lied when he said he was surprised by this information.
The jury was unanimous on (b), concluding that Libby could not have been surprised; apparently, there was doubt on (a), but the jury had no particular reason to try and resolve it.
Or, in the recently cited Miller case, one of the judges said this:
Because my colleagues and I agree that any federal common-law reporter’s privilege that may exist is not absolute and that the Special Counsel’s evidence defeats whatever privilege we may fashion, we need not, and therefore should not, decide anything more today than that the Special Counsel’s evidentiary proffer overcomes any hurdle, however high, a federal common-law reporter’s privilege may erect.
Sometimes the answer to an easy question settles the answer to a harder one.
VERDICT: For myself, I'll accept that Fitzgerald had a legal right to focus on perjury despite the high probability that no underlying crime would be charged (I do question the obstruction charge, so let me ask that - can the Dean be charged with obstructing a non-investigation? Arguably, yes, since there was an investigation at one point.)
However, at what price? Fitzgerald won court victories that weakened the press; he also assured that no future Administration will submit itself to a Special Counsel.
We do not live in a world where people simply choose between lying to a grand jury and telling the truth - folks can choose between lying, telling the truth, and declining to cooperate (either overtly, by taking the Fifth, or obliquely, by not remembering much of anything).
Following Libby's example, I am sure it is true that future government officials who find themselves talking to Federal investigators or in front of a grand jury will be very careful not to "lie". However, I do not expect that we will see more individuals or Administrations cooperating with investigations.