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.

[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....

[cboldt]

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

Oh yeah, now I remember.

[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.

[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?

[MayBee]

oops, clarice covered my 6:37 already.

[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.

[Sue]

I'm sorry, Fitzgerald proceeded with the investigation for one reason and one reason only. 1x2x6. For revenge. The only problem he couldn't find it but he absolutely believed it. Next best thing, baby. He even told us so.

[Sue]

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

Supreme court decisions are repleat with just such incidences. The intent of the legislators are deciding factors, when the law is ambiguous.

[Walter]

Rick,

If you look at the numbering of the exhibits Fitzgerald presented to the grand jury, you can get a sense of the direction of his investigation.

As I see it, he was not using the grand jury to determine whether Armitage was the first leaker. He wanted to find out whether Libby lied; whether Rove lied; and, if they lied, what they were trying to hide. From that viewpoint, it is less important that Armitage spoke also to Woodward: It merely removes the possibility that Libby himself was the source of the rumors to which Armitage responded.

[clarice feldman]

I remind everyone of azaghal's excellent analysis and the comments here on point:
http://64.233.167.104/search?q=cache:T1yIOYdpQIYJ:www.americanthinker.com/blog/2007/02/bait_and_switch_and_trap_the_r.html+clarice+feldman+Switch+and+Bait&hl=en&ct=clnk&cd=1&gl=us>Fishing Expedition

[Jeff]

clarice

Of course you mischaracterize what I said. I was not asserting or suggesting that prosecutors were sure there was an IIPA violation. Toensing's position was that there could not have been one. My assertion was that Fitzgerald evidently had a different interpretation of the IIPA statute from Toensing's, and indicated that their belief was that a violation could have occurred.

As for Comey's tapdancing, could you explain what you mean. What I see in his letter is this:

the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity.

Is that tapdancing?

[clarice feldman]

Toensing not only wrote the Statute she worked w/ it regularly at the DoJ so she wspeaks with the authority of the drafter, the witness to the legislative history of it and someone well versed in DoJ policy respecting such referrals.

[Sue]

Is that tapdancing?

So where is Armitage again? Or even Harlow for that matter. I forget, did he lose his job for confirming her employment at the CIA to a nationally sydicated journalist?

[Other Tom]

I'll go with Beldar's analysis, but not necessarily with his conclusion. And I think if the question were posed on an exam in law school, Beldar would get an "A" for his analysis. I also think he'd get the same grade if, having gone throught that analysis, he concluded that the decision whether or not to prosecute would depend upon factors not addressed in the question, particularly the availability of staff, backlog of cases and the like. Certainly if resources were not an issue, the crime should be prosecuted beyond a shadow of a doubt.

As a related matter I would note that, like Beldar, I was a litigator, and my practice was predominantly civil. I spent many thousands of hours examining witnesses under oath in deposition, despite the routine warning at the outset that doing so is punishable as perjury. I think any layman would be astonished at how often witnesses knowingly lie under oath in deposition. In my entire career I never heard of a prosecution being brought as a result. In one of many instances where I had dead-solid proof that the witness had lied, I went so far as to inquire of the DA's office whether this man might be prosecuted. The DA wouldn't touch it with a ten-foot pole. The only remedies realistically available are those that might be meted out by the judge hearing the civil case. This, as I recall, is what happened with Bill Clinton, who was caught red-handed but was never charged with a crime. The $90,000 civil penalty imposed by the judge is the harshest penalty for civil perjury that I am aware of. I don't weep for the man, but it's highly unlikely that John Smith would have received such a penalty.

[Bob]

I find attempts at parallel models to the Libby case lacking. The end point of the episode was a confiction of Libby after a perplexing litany of events. If put into a timeline and begin with the Wilson article, then the Armitage whatever we call it, at best a half-truth exists. Val Plame WAS NOT covert and no crime was committed with respect to this. Moreover, there is nothing wrong with ANY member of the administration discrediting someone who has accused them of lying. As it turned out the one who accused of lying was, well, lying.
So Patrick Fitzgerald, after ALREADY KNOWING THESE EVENTS, begins interviewing members of the administration and he clearly does so with two seperate agendas-one public which he announced at the press conference where the Libby indictment the other, political which he revealed in his final arguments intended to enflame a jury he already knew to be loaded.
And as much as both sides of the argument depended on elements of witnesses memory, Judge Walton, in a bizzare ruling refused to allow an expert witness, someone of the doctoral level, to give background on the human memory. Both sides had agreed to the witnesses' credentials and expertise.
As we are trying to come up with models, I'll submit one here. To do so, we'll have to go back to school and witness administrators sort out a he said-she said long after its happened. And do so just on what people can remember. And they'll have to do so on something that really have any affect nor any otential to harm someone. These usually don't last very long.
Amazingly thats what Peter Fitzgerald was able to do. Deftly playing the "cloud over the Vice Presidency card" in his closing card, he hooked his hand picked 11 angry dems and gave them their marching orders.
Even for them it hadn't been easy, needing photographs of witnesses and countless post-it notes. Hopefully they were the same color. And after several days needing once more instructions about what reasonable doubt meant, they did it. Guilty, but they admitted to wanting Karl Rove, a man not on trail. Tainted to the last.
Trying to parse words and see certain testimony through a microscope can never really make this into anything but a political vendetta who's like we've just not seen in this country.
Parallels and models do no service in many cases as the facts are different each time. The facts here must give strong voice to what this was and seriously consider Peter Fitzgerald's work as prosecutorial misconduct.

[clarice feldman]

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Page 1
Office of the Deputy Attorney General Washington, D.C. 20530 December 30, 2003 The Honorable Patrick J. Fitzgerald United States Attorney 219 S. Dearborn Street Chicago, IL 60604 Dear Patrick, By the authority vested in the Attorney General by law, including 28 U. S .C. §§ 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. § 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department. /s/ James B. Comey James B. Comey Acting Attorney General

Please note two things:
(1) the letter does NOT track the IIPA, but treats the referral as if it were a standard referral respecting the unauthoized disclosure of classified information;
(2) contrary to Fitzgerald's representations when he fought the Motion to dismiss, it makes clear that Comey delegated to a non-Congressionally confirmed DoJ employee all the AUTHORITY (not FUNCTIONS) of the AG with no supervision or control by any Congressionally confirmed officer of the United States.

[Sue]

I beg to differ Clarice. Comey supervised through newspaper articles.

[clarice feldman]

*slapping hand to forehead* How could I forget?

[Walter]

I like the coinage:

"Confiction" = "A wrongful conviction".

[boris]

Having said on multiple postings ...

Certainly there is no "I was being framed" exception to truthful testimony just as "malicious prosecutor" is not a license to lie.

Last May I posted a hypothetical example of complex truth where a suspect knowing he's being framed feigns a memory lapse, uncertainly suggesting he went golfing, to hide that he was fishing on the afternoon in question in order to keep the investigation from discovering planted evidence in the boathouse.

Planted evidence is not "the truth" and hiding it is not misleading. In addition self-defense is a valid exception whenever it applies. Trust in government does not trump it.

[Other Tom]

"despite the routine warning at the outset that doing so is punishable as perjury."

In my post above, that clause should have been inserted immediately following "under oath in deposition." Sorry for the confusion. Bloody Marys, don't you know (it's Saturday).

[Semanticleo]

"I'm also curious to see what I think..."

Perhaps you can will your carcass to the Science Dept so they can open your melon and
study you cold. It is interesting that you chose murder for this Libby parallel.

Why don't you do an Philip Agee, next time?

Or maybe you could move on to contemporary
lies.(Domenici, Wilson)

[Ham Sandwich]

I've been indicted more than anybody in the United States so I should know.

The professor in Tom's example should be prosecuted.

.

[Sue]

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.

We need an Armitage in this scenario. A Prof. Smith, in the biology department, who had the same access to the 'weird' chemicals and went so far as to obtain them, mix them, and leave them in the Dean's office. Not on purpose mind you, but as a ha-ha, can you believe this [] kind of thing. He confesses right away to the prank, didn't mean any harm, wasn't really trying to kill the Dean, etc. Later, after Prof. Jones is indicted, someone reminds him that he had done the same thing earlier. Two ha-ha moments. Neither charged.

[Other Tom]

Anybody have the foggiest idea what Cleo is talking about? How does one "do an Philip Agee?"

[Semanticleo]

"He confesses right away to the prank, didn't mean any harm, wasn't really trying to kill the Dean,"

It never occurred to me that this all might have been in jest. Cheney's just a mischievous little poltergeist. How cute!

I guess you can't expect a butterball like him to be anything but jolly. That little leprechaun!

[Gary Maxwell]

What goes on in Atlantic City stays in Atlantic City!

And how come we have not heard it repeated ad nauseum that everybody lies about what goes on in Atlantic City. Seems like a good parallel. What the shoe is on the other foot?

[MikeS]

Fitz says Libby lied because Libby thought telling reporters information was unofficial would be a defense against leaking official information.

Libby says No I didn’t think that.

Fitz says of course he thought that, otherwise why would Libby lie?

Can you make an analogy for that?

[Rick Ballard]

"Anybody have the foggiest idea what Cleo is talking about?"

Cleo talking is the excremental result of her peristaltic thought process. You would have to be credentialed as a proctoanalyst to examine her output. Better just to hold your nose and step over it.

[Sue]

Cheney's just a mischievous little poltergeist. How cute!

If I doubted it before, this post just proves it. Comprehension is a problem with you.

[Libby's a Liar]

Its not the sex - its the perjury stupid.

[RichatUF]

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

Interesting, looks like they are going to be Hillary! emissaries to the Richardson campaign...

re: topic:: I think the difference should be smaller (lieing about being in town). The professor says he is in a meeting with some number of people at XYZ building. The prosecutor determines that it was some+q people and in NBC building. The professor got the number of people wrong and the building wrong but didn't deny he was on campus at the time.

RichatUF

[sylvia]

You know what I noticed, is how come people who give false confessions are never indicted for their false statements? Where's John Mark Karr's false statement charge? And why is defending against a coerced or false confession such a cornerstone of defense lawyers - because if the defense lawyers are believed, shouldn't the accused all face a perjury charge afterwards? So it seems that the prosecution has two standards, one for under-confessing, another for over-confessing, but they are both still perjury.

[Gary Maxwell]

Rich

I heard that too!

[verner]

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

Clarice--I'm starting to think you were soooo very very right when you said Sidney has had a hand in the little cabal from the beginning. Lies, ruthless ambition, an attempt to destroy the life of a political enemy, with a strong whiff of conspiracy...sure fits the MO. Just ask Kathleen Willey and Monica Lewinski.

[Semanticleo]

"Comprehension is a problem with you."

It's called selective perception. You should teach a class, professor.

[clarice feldman]

It's a crappy analogy but a simple way to comprehend a simple materiality question.
Now, how is it material--assuming there was stronger proof he lied-- where Libby said at the outset he'd heard it first from Cheney, that he was surprised when he heard it from Russert a month later?

[boris]

YES: Jones lied during a good-faith murder investigation.

NO: Are you kidding - there was no crime!?!

MAYBE: The calculation behind fabricated testimony should include legal jeapordy. If the lie was in the nature of false alibi (true denial) which does not impede the investigation then ignoring it seems reasonable.

[Sue]

It's called selective perception.

And it infects the entire left side of the political sphere. Anything else you wish to confess?

[clarice feldman]

At the trial, Sidney was skulking about w. Corn and Isikoff and Shuster.

[sylvia]

As to the above example, it all comes down to timing. The lying has to be material to the pursuit of the investigation. In Tom's hypthetical example, the coroner's report came after the grand jury, which would of course never happen in real life. In real life, hopefully the coroner's report would come before the grand jury. If the prosector continued the murder investigation and convened the grand jury AFTER he knew there was no murder, he could be held liable for malicious prosecution.

However interesting question as to whether the false statements would still stand. I think there still is some standard of materiality to a false statement. There has to be something shown that the false statement wasted the police's time, or killed some other lead, or that the false statement as it stands still leaves unclear about whether a crime was committed. Short of some blatant facts in this regard, I would say it would not be pursued.

In Libby's case, assuming that Plame was covert, Fitz could get away with it because he didn't know about the "intentions" until after the investigation, so that would cover the false statements. However, I think it's more questionable about the grand jury, but I think he could still make the case that he didn't know for sure about Libby's intent because he didn't believe that Libby was being completely honest. And the "intent" is the missing part of the law-breaking, leaving the possibility of a crime still open, unlike the heart attack professor. So again, Fitz can get away with it all.

[Rick Ballard]

Original question:

"SO - does the prosecutor file perjury charges against Prof. Jones?"
Supplemental data?:

"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."

Correct answer - it depends.

If the question were:

"SO - can the prosecutor file perjury charges against Prof. Jones?"

The answer is, certainly. He can probably get a conviction, too.

If a poll done were done today concerning the "public policy lesson" involved in the Libby verdict, what would one suppose would John Q. Public's response be?

My bet is: "It's illegal to disclose the identity of a secret agent."

[sylvia]

"A Brief Legal Seminar"

Are we all going to get law degrees after this? After all this legal analysis for this case, we should at least get honorary ones.

[RichatUF]

Jeff;

...I was impressed with Fitz at his first (the indictment) presser, until he said he hadn’t figured out the motive ...

Leaked "classified information"->motive to lie...What classified info? Plame-Wilson's 'status' at the CIA.

If Fitzgerald was so worried about gov't officials handling classified information why didn't he nail Armitage for leaking the contents of the INR memo to Woodward. Mishandling classified info can be a felony (except in Burger's case). The INR was classified and was passed around AF1 to any number of parties who had no need to know; Armitiage read it to Powell courtier Bob Woodward. Fitzgerald didn't even provide Walton with infomation about Plame-Wilson's status [covert, non-covert]. It's ridiculous to assume that Fitz had some 'secret' info re: IIAP or EA wrt Libby and then prosecuted him for "being surprised". And the jury wasn't suppose to speculate on this Fitz 'secret' info either.

RichatUF

[topsecretk9]

I'm starting to think you were soooo very very right when you said Sidney has had a hand in the little cabal from the beginning.

Pretty sure Vicious wrote the forward to Wilson's book (maybe paperback) or visa versa and on salon said they were tight for a while. Cue Mandy Grumwald too.

[Charlie (Colorado)]

You should teach a class, professor.

You should take one, Leo.

[sylvia]

To add on, intent AND specific knowledge that Plame was covert were the missing elements of the leaking charge. Fitz could make the argument that both elements might have been obscured by Libby's "false" statements about what he knew and how he knew it.

Still I wonder if Libby could somehow challenge convening the grand jury on the specific knowledge part, since it seemed that Fitz had pretty strong evidence that Libby had no access to the knowledge that Plame was covert, and without that element, a crime could not be committed. No crime, no grand jury. Unless the prosecutor can uncover a lie during an investigation, and then call a grand jury to investigate the lie, independent of an underlying crime? I notice that Libby's indictment lists the crimes of perjury and false statements, so I'm not really sure how that works. We really do need a lawyer here.

[Syl]

JohnF

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.

Yeah, but there has to be a grand jury to whom you perjure yourself for deterrance to have any effect.

Let's convene a GJ just so this guy can perjure himself and we can show the world what a naughty thing lying is.

[RichatUF]

To further parce:

A. The University Dean had informed the Vice-President for Academic Affairs he had a heart condition.

B. Prof. Jones was informed of this information in an offhand manner in the course of his duties as Science Department Dean

C. Prof. Jones says he is surprised when he is told that the Dean is dead and possibly by posioning.

D. During Prof. Jones gj testimony he says he was surprised to learn that the Dean died

E. The prosecutor says that Prof. Jones made a perjurious statement when he says "he was surprised" because he hade in fact been informed by the VP for Academic Affaris of the Dean's heart condition

RichatUF

[PeterUK]

Since Fitzgerald already knew the identity of the leaker,can he be prosecuted for misuse of public funds?

[topsecretk9]

The lefts disdain towards Toensing is so odd and probably the most revealing aspect of the weakness of the entire affair.

If the person who participated in crafting the statue and negotiated the terms between the intelligence agencies and the media is to be totally discounted simple because her expertise conflicts with their "needs, wants,desires" then the other demonstrably LESS qualified players including the non-intelligence trained Ambassador who isn't/wasn't on a need to know, carries NO WEIGHT.

Ditto for Larry Johnson.

Lefties take everything these non experts say as gospel and wear some strange colored glasses in order pretend and ignore the mountain sized pile of misspeak, misquotes, literary flair and lying doesn't exist.

[PeterUK]

Tops,
Some lefties seem antagonistic towards strong, intelligent women.Toensing,Clarice,makes one wonder.

[obsessed]

Are you kidding? There was no crime.

murder:
http://icasualties.org/oif/US_chart.aspx

grand larceny, fraud, racketeering: http://nationalpriorities.org/index.php?option=com_wrapper&Itemid=182

[clarice feldman]

I must say that the first time I was suspicious of Fitz is when Toensing explained the IIPA and why there could not have been a violation of it re Val. I found her compelling then and I've seen nothing to change my mind. Indeed, I think azaghal's analysis nailed it for me.

[dmbeaster]

The proper analogy is that the errant professor did try to poison the Dean, but someone else was actually successful in doing so.

Once you start thinking clearly about the proper analogy, maybe you can see the Libby situation rationally.

[obsessed]

Some lefties seem antagonistic towards strong, intelligent women.Toensing,Clarice,makes one wonder.

you hadn't noticed that a majority of the most-vaunted plameologists are exactly that? Emptywheel, Jane, Jeralyn, Reddhedd, De la Vega, otisishungry, uhhh, Valerie Plame ...