A Brief Legal Seminar

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.

Comments

[clarice]

Are the rapists, murderers, drunk drivers in the jurisdiction all on holiday? Does the prosecutor's office have tons of underemployed staff and excess funds? If so, that might be a serious question. Since I think that fact situation never arises it isn't. Part of the job--when prosecutors are angling for political careers or fame--is the judicious use of limited resources for the public good.

[enigmatiCore]

Undoubtedly he should file perjury charges.

But the whole part of the partisan left adopting the since-debunked narrative as a set of talking points is missing from your analogy here.

[Terrye]

Seems a tad far fetched to me. After all the police should have discovered the fact that the Prof was indeed on campus at the time of the death...well before any grand jury was convened.

[clarice]

***prosecutors are NOT angling for political ****(Correction)

[Nick Kasoff - The Thug Report]

Should the prosecutor file perjury charges? Absolutely. Would he? Very unlikely. For ordinary people, perjury is almost never prosecuted, particularly when the rest of the case falls apart.

Nick Kasoff
The Thug Report

[hit and run]

Terrye - you nailed Tom's point in the parallel...

"After all the special investigator should have discovered the fact that the Deputy Secretary of State was indeed the source of the leak...well before any grand jury was convened."

[SunnyDay]

Should but wouldn't. Prosecutors everywhere would be so busy prosecuting perjury that they would never do anything else.

However, the prosecutor probably would if this were a sufficiently high profile case which would advance his reputation and career significantly.

The example really isn't parallel enough. It's hard to recreate the scenario we are dealing with.

[Pofarmer]

I liked the example with the grandparent's owning the gun, better.

I'm still not convinced there was perjury in the Libby case.

[weffie]

In in the ordinary run of the mill matter, such perjury should not be prosecuted, as such an action would strain limited resources.
However, if this matter became a matter of regional or national reknown (and there's a good shot this case would be), then the prosecutor might be compelled to prosecute in order to signal to the population as a whole that perjury cannot be tolerated.
Such a position violates our sense of equal protection - yes, the famous are different from you and me. They have more indictments. Yet, I don't think the state can sustain the opposite signal that lying is acceptable so long as, in the end, you or the beneficiary of your lie are exonerated of an underlying crime.
Besides, he should have gone to Vegas, the Judith Miller of cities.

[kate]

The message is ready to be sent with the following file or link attachments:
Shortcut to: http://www.weeklystandard.com/Content/Public/Articles/000/000/013/390vrpwk.asp

[kate]

TM, that's a tough one. The Professor thought his presence at the meeting would expose him to an accessory or conspiracy charge. I think it's a good parallel.

[JohnF]

It's a felony to lie to a grand jury.

It doesn't matter if you're the president or a bum (or both!), it's a felony to lie to a grand jury.

Ideally, all felons should be prosecuted, but the ideal cannot always be met.

There are many reasons why prosecutors bring criminal proceedings against felons. One is deterrence, one is simply to punish. But perjury trials, though rare (prosecutors are busy after all) are usually for deterrence.

Deterring lying before grand juries is pretty important, since grand juries are an important way to investigate other crimes, so I don't have any problem with indicting the professor. Less still is there a problem with indicting Libby. If he did lie (and I don't have anything to go on except the verdict), by all means any prosecutor should make an example of him.

And, if he has time, of the professor too.

[kate]

This one makes me very sad for Libby, but even more sad for our country. I yearn for a return to statemanship and a move away from criminalizing policy differences. But until this strategy starts to backfire on the Democrats and their media enablers it won't happen. Seems like the media had a good week. They are all smiles and giggles.
http://www.weeklystandard.com/Content/Public/Articles/000/000/013/390vrpwk.asp

[Barry Dauphin]

In a world with infinite resources, yes. But the prosecutor would have to take practical realities into account. At least here people thought there plausibly was a crime with the Prof. was asked a question, and he shouldn't lie to a Grand Jury.

In the Libby case, the prosecutor already knew who the leaker was long before Libby's GJ testimony and that there was not crime. Fitzi was essentially attempting to lay perjury traps for whatever reason. The parallel would be hiding the autopsy report for a long time, convening a GJ and turning up the screws to make it seem as if there was a crime, and thus tempting the prof. to lie (even though he still shouldn't lie).

[BD]

Weffie is exactly right. That is precisely why Clinton's lie was such a big deal. If he were any other citizen, I might have been more willing to buy into the argument that everyone lies about sex and so it was no big deal. But in that case, as we all know, it was the head of the executive (i.e. the Attorney General's boss) lying and attempting to obstruct justice in a civil lawsuit. That could not be allowed to stand and he deserved to be impeached (and should have been thrown out). I think Fitzi's defenders would have to make a similar argument -- that maybe this type of perjury and obstruction would not ordinarily be prosecuted, but coming from the VP's COS, it cannot be ignored.

[sbw]

Book him, Danno! A lie of convenience is a lie nevertheless.

But the example does not parallel the Libby case. As mentioned above, substantial investigation before the grand jury would have eliminated the opportunity to lie. Furthermore, in the Libby case, eight hours of grilling is prosecutorial abuse akin to waterboarding.

Sorry. Reframe your example and try again.

[Jeff]

Now that Libby has been convicted and you've been completely consumed by Fitzgerald Derangement Syndrome, Tom, let me point out that there is no parallel in the CIA leak investigation to this:

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

And most definitely no parallel to anything like this happening within a couple of days of the start of the investigation (the knowledge that Armitage and Rove were the two leakers to Novak not serving as a parallel for several reasons).

And if you want to start Toensing again, let me point out once again that in August 2004 Fitzgerald noted that he and his team had analyzed the relevant statutes, and they had evidently come to a different conclusion from Toensing about whether an underlying crime could have been committed. Toensing, of course, could be right with her interpretation of key sections of the IIPA statute, but I think skepticism is called for when she acts like it is not an interpretation untested by the courts, unsupported by the plain language of the text, and utterly absent from the actual legislative history of the statute (as distinct from Toensing's secret legislative history, which she seems to have miraculously rediscovered in the context of the very leak investigation). Fitzgerald could be right, on the other hand. It would have to be determined through litigation - which is one reason why Fitzgerald always was very clear to not answer questions about whether Plame was covert (since that term in the IIPA doesn't answer to any actual category in the CIA).

[lonetown]

Under oath!

[globalmom]

Long time lurker first time commentor please take it easy if this is a dumb question. Is the coroners report the first indication that no crime had occured or was that fact known before the professor lied when he was questioned?

[SunnyDay]

I'm not convinced the professor lied, I think he could just gotten the dates mixed up. After all, he is gone as many weekends as he is in town.

[SunnyDay]

Enough with Clinton. Leftie talking points.

[clarice]

BTW the Wa Po style section reports Joe and Val dined out last night with Hillary! and Sidney Blumenhtal and his wife.

[reliapundit]

good example. here's a better truer one:
a congressional intern dies - was murdered.

her congressman lies about their affair.

the cops find out.

he recants.

he is not indicted for perjury or obstruction.

[Rick Ballard]

I'll go for a letter of reprimand in the prosecutor's file for wasting resources prior to determination of the facts necessary to support the conclusion that a crime has occurred.

(BTW - the example would be helped if it were established that there was an ongoing budget defict and that choices had to be made as to whether to cut a free lunch program for pre-schoolers, a homeless shelter or the heartless prosecutors office.)

[cboldt]

beldar has the right answer, and the right attitude. Or at least his attitude parallels mine.

[clarice]

Why would you convene a gj before getting the medical examiner's report?

Beldar is right that the prof's answer in THIS example is material. That does not mean that it is material that a year after his discussion w/ Cooper he remembered being surprised by what Russert told him is.
Not to me.

In this example we are told the prof lied. In the Libby cause there is reasonable cause to doubt that he did.

We could play w. this all day, but it is an idle exercise.
First we have to find out a critical, missing fact:Is the prof a Republican?

[tomh]

Yes. In a high profile case, and the death of a University Dean would certanly be high profile in that community, allowing a critical witness to lie under oath before a grand jury with impunity sends the message to the community at large that lying has no consequences. The deterrent value of the prosecution is sufficient to bring the charge, aside from any other consideration.

[BD]

Beldar is right if this were a law school exam. He is absolutely incorrect if this is anything other than a law school exam. In the real world, prosecutors have to make choices about which crimes to prosecute and which crimes to let slide. When deciding whether to prosecute the crime Libby (and the professor in your hypothetical) committed, the prosecutor has to do something of a cost benefit analysis. When there is a public figure involved, I think the deterrent value (ie the benefit of prosecuting in the cost benefit analysis) goes way up.

[MikeS]

If there is some other evidence to prove Prof. Jones' intent, then of course he should be prosecuted. But the intent, just like the alibi, should be subject to the test of proof. All of the necessary elements of the crime i.e. motive, willingness, etc. should be subjected to a test for proof.

To say a man left his house because it was on fire may seem a compelling motive, but if we examine the house and find no evidence of a fire the motive would be highly dubious.

I was impressed with Fitz at his first (the indictment) presser, until he said he hadn’t figured out the motive (or something to that effect). This wasn’t manslaughter, how can there be perjury and obstruction without a motive? I mean a convincing, compelling, tested motive.

How about willingness? If my boss tells me to do something, am I doing it voluntarily? When I am carrying out someone else’s instructions, I feel like I’ve given up some of my free will and submitted to their will. So, in Libby’s case, I’m not sure that his cooperation with investigators was entirely voluntary.

[Pofarmer]

Jeff

Toensing wrote the damned statute. I think she should know what it means and what the law intended.

[Rick Ballard]

Cboldt,

Given yours and Beldar's "right attitude" and the proper resources we could have the 12/13ths of whole country sitting on juries judging the 1/13th on trial. (OK - we'd have to have some FBI agents engaging in creative note taking in order to bait the perjury traps.)

Stalin had an extraordinarily efficient legal process system so we know that the process can 'work' very smoothly and be entirely 'legal'.

[clarice]

Jeff just made that shit up out of thin arir. So sure wee the prosecutors that there was an IIPA violation they immediately sought for and got permission to investigate process crimes; so sure were they that the IIPA applied that Comey's letter announcing the appointment is a tap dance around the issue so finely done it could win an award at the Apollo.

[Anonymous Liberal]

Tom,

Others may have pointed this out already, but here are some major problems with this analogy.

First, as Jeff points out, there is no equivalent of an "unambiguous" medical report here declaring that no underlying crime has occurred. Fitzgerald's people clearly think an Espionage Act violation arguably occurred, and even the IIPA violation has not been definitively ruled out (nor can it be given the ambiguity in the law itself).

Second, and more importantly, people often lie to hide politically problematic facts as well as criminal facts. If Libby wasn't lying to hide the latter, he was almost surely lying to hide the former. From the standpoint of a prosecutor who investigates political figures, it is simply unacceptable to have witnesses lying for either reason. If you allowed witnesses to get away with lying for political reasons, you would never get to the bottom of anything.

[cboldt]

-- Given yours and Beldar's "right attitude" ... Stalin had an extraordinarily efficient legal process system --

Oh yeah, now I remember.

[MayBee]

Given yours and Beldar's "right attitude" and the proper resources we could have the 12/13ths of whole country sitting on juries judging the 1/13th on trial.

And about 17 more indictments in the Libby case....

[hit and run]

Why assume Tom was trying to build the perfect analogy to Libby?

I would assume he purposefully created a scenario that stripped certain elements away in order to focus the question/discussion.

[cboldt]

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.

[clarice]

Well, there is that inconvenient fact, too , MayBee.Like a lawyer not knowing that there are no lawyers for the witness allowed in a gj, or a fake affidavit hiding cooperation w/ the FBI, or a witness being unable to remember sources she sat in jail 85 days to protect, or an immunized witness saying he didn't talk to one reporter when the reporter says he did and saying he talked to two reporters one of whom is duct taped and the other saying he didn't.
OR--the leaker not revealing he told at least one other reporter.

[verner]

TM, I think the analogy is all wrong for Libby. For it to fit his case, you would have to say something like--"He was asked about the incident about 4 months after it happened. He said that he went to Atlantic City on Friday the 5th, and played Blackjack at the Horseshoe with Tom Dick and Jane, and lost about $50--when in reality, he went to Atlantic City early on the morning of Sat the 6th, and won $100 playing poker with Ted and Bill." That would be more like it. And if you add, he frequently went to Atlantic City, and had not consulted his blackberry before he was interviewed by the police--well.

[MayBee]

That is not my response to Tom's analogy. As you can see, I did not give one.
I find it an imperfect anaolgy to the Libby trial, but I would not answer "no, of course not" to it.

[MayBee]

That's to cboldt.
It seems to me, however, that there are good analogies to Libby's situation right there in the Fitzgerald investigation. Did Armitage, Ari, Miller, Grenier, Grossman, Rove, Russert (who else?) get charged with perjury? No, of course not.

[MayBee]

oops, clarice covered my 6:37 already.

[Rick Ballard]

Do appeals to authority always get you this excited? Do we actually want "crimes" created by prosecutors initiating grand jury proceedings when they have a confession in their hands?

Armitage's October 3rd acknowledgment of responsibility doesn't exist?

[verner]

It seems to me, however, that there are good analogies to Libby's situation right there in the Fitzgerald investigation. Did Armitage, Ari, Miller, Grenier, Grossman, Rove, Russert (who else?) get charged with perjury? No, of course not

Excellent point MayBee--why didn't Armitage get stuck with perjury and obstruction--oh yeah, that's right! He wasn't a part of the "dark cloud" hanging over the VP's office...It's OK to "misremember" if you're Armitage, Ari, Russert, Andrea Mitchell etc.

Can we add that to Fitz's prosecutorial misconduct list? Selective prosecution of a political enemy?

[Walter]

As he does so well, Beldar cut to the nub of the argument. I really should read his 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, we reviewed the statistics on federal perjury prosecutions a few months ago. 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? (Beldar's war story dates from many years back. Perhaps he has no more recent tales of mischief under oath? Or perhaps most of these fall by the wayside?) In his example, the misstatement could not have "affected the outcome of the judicial proceeding" absent negligence by his 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 or any other injured party.

[Rick Ballard]

Should Fitzgerald be indicted for perjury for lying to the grand jury about Libby being the "first to disclose"? After all, that had to be the basis for his rationale to them for going after Libby. He emphasized it in the presser and I would assume that he told the gj that Armitage had confessed.

But, given Fitzgerald's peculiar ideas concerning "truth" perhaps that's an unfounded assumption. Did he, in fact, keep the existance of Armitage's confession from the gj in order to obtain the indictment? Did he cloak Armitage's identity from them as well as from the public?

He's such a small and peculiar man that he might have - he has the cloak of gj 'secrecy' to cover his maneuvers, so we will probably never know.

[centralcal]

OT:

Has anybody got information about 4 additional jurors coming out in favor of a pardon for Libby? I heard something to that effect on the news briefly.

I am swamped at work and uable to keep here right now, so I apologize in advance if this has been discussed on another thread.

Tom M: I think your example isn't very good. No one (not even the jury) knows if Libby lied or mis-remembered or mis-attributed, unlike your Professor who lied.

[Jeff]

Toensing wrote the damned statute. I think she should know what it means and what the law intended.

Just to be clear, then, Pofarmer, your view is that prosecutors should follow whatever any congressional staffer in any way involved in the complex act of drafting and passing a statute says it means, regardless of the fact that what that staffer says is nowhere reflected in the act or the actual legislative history, and regardless of the fact that said staffer announced her (in this case) view only twenty years after the fact, in the context of a highly charged investigation and legal case involving a very prominent member of an administration of a party to which the former congressional staffer belongs.

Ok, at least we're clear on what your view of original intention is and how it should control in the judicial system.

[boris]

Actually the coroner and the Dean were in cahoots to fake his "death" in order to frame the professor. The prosecutor was selected on the basis of an antagonist personal history with the professor.

The professor actually did go to Atlantic City (casino receipt for proof) and the claim that he was part of an anti Dean cabal having a meeting at the time turned out to be a figment of the prosecutor's imagination. No evidence of such meeting was ever found.

Bottom line: had Libby decided to lie in order to stay out of trouble, he would have succeded.

In the real world with this flawed analogy the most likely outcome would depend on the political situation more than the legal. If the professor was out of step with the politics of the university they could probably prosecute the sucker. Otherwise if the professor had even a smidge of political supporters they could make prosecution impossible.

[boris]

whatever any congressional staffer

When there is clear language in a statute and and the staffer simplhy explains what it actually means in laymans terms ... yes.