Truth, Justice, and the American WayIs Scooter Libby innocent until proven guilty?
Posted Wednesday, Nov. 2, 2005, at 12:31 PM ETSpecial Counsel Patrick Fitzgerald quite properly emphasized in his press conference on Friday that I. Lewis "Scooter" Libby is, in the eyes of the law, "innocent until proven guilty." Fitzgerald, who has the gift of making extreme fastidiousness seem macho, also refused to comment in any way on Karl Rove or any other suspect—and isn't even filing a final report—because he believes that the only thing the law should say is "guilty"—if it's got the goods. If it can't say guilty, it should say nothing at all.
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This posture is admirable and darned charming in a federal prosecutor. But it is silly, sneaky, and wrong when adopted by politicians to avoid saying anything substantive, as many have done in the past few days.
Scooter Libby is not innocent until proven guilty. This is true in several senses, but let's start with the one that many observers believe is undervalued in our hurly-burly world of today. It's called reality. Libby may be innocent, or he may be guilty. We will try to reach a conclusion about that in a trial, which of necessity lies in the future. But the events that his innocence or guilt turn on are all in the past.
Either he fed the FBI and the grand jury a phony story in order to impede the investigation of a security leak, or he didn't. Even the states of mind that the law requires for various crimes—knowledge of this or that, intent to do this or that—occurred or did not occur in the past, however imperfect our future efforts to fathom them might be.
The presumption of innocence is a conceit of the judicial system. That doesn't make it a bad thing. In fact it is a good thing—one of the ornaments of free and democratic society. The law, and especially the criminal law, is full of conceits that serve justice, although they require participants to make believe various things. The rules of evidence, for example. Anyone who has watched a TV courtroom drama, from Perry Mason to Law & Order, has heard a judge declare that "the jury will disregard" something no one seeking the truth would disregard. That's because the judicial process has other goals besides seeking the truth.
One of those other goals is protecting the innocent. The law bends over backward to avoid a wrongful conviction. That's why it excludes certain kinds of evidence, and that's why the standard for conviction is guilt "beyond a reasonable doubt." In a civil lawsuit, the standard is generally "more probable than not." Whatever probably happened, as best as the judge or jury can determine, is taken to have happened. But in a criminal trial there is a whole range of probability that is off limits: It probably happened, but not beyond a reasonable doubt.
The judge and the jury who try Scooter Libby must start with a presumption of innocence and must consider only the facts as presented at trial—which may or may not include all the relevant facts. If the truth is that he's probably guilty, but not beyond a reasonable doubt, they must declare him innocent. Superman fights for "truth, justice, and the American way," but the American way sometimes pits truth against justice. In the courtroom, justice counts for more than truth. But outside the courtroom, truth has its claims as well.
In refusing to discuss any aspect of the CIA-leak mess, the White House is exploiting an American mania for judicial process that President Bush has so often criticized. Meanwhile, in the Supreme Court mess, Democrats have been misusing this same mania against the president. Trying to milk every last drop out of the botched nomination of Harriet Miers for the Supreme Court, the opposition party faced a challenge: How can you knock Bush without endorsing Miers? Solution: You complain that she was denied her fair opportunity to a hearing and an up-or-down Senate vote. And that is the official Democratic sound bite. But it is ridiculous. Hearings are about the Senate's right to approve of the president's choice, not a nominee's right to be approved. There is no such right, and no right to a hearing, either.
As for the CIA-leak investigation, there are more than enough facts, unchallenged or beyond reasonable dispute, to raise questions that President Bush and others should have to answer. These questions do not depend on a final judicial resolution about one person's guilt or innocence, and they shouldn't have to wait for it. The most important of these questions involve the legitimacy of the war in Iraq. To avoid this topic, the administration and its defenders cling to Special Prosecutor Fitzgerald's declaration that the war and the Libby prosecution have nothing to do with each other. It's fine, and appropriate to his job, that he thinks so. But about this, at least, he's quite wrong.
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Remarks from the Fray:
Kinsley walks all around it without actually stepping in it.
Whenever we have an accusation against a political figure we have two trials. The real trial begins the moment an accusation is leveled. This is when the "loyal opposition" falls all over themselves to be the first in line to express righteous indignation. They are followed immediately by supporters of the accused, who fall all over themselves to be the first in line to express, well, righteous indignation, and neither side is the least concerned about the individual. What both sides watch the most closely is public opinion and this is likely the most accurate barometer politically, anyway: for the people to be swayed more than a few points, the evidence must be pretty overwhelming to begin with.
"Innocent until proven guilty," in fact, is a poor standard to judge the behavior of elected and appointed officials. We would not be willing to keep a person in an appointed office when the evidence, while insufficient to prove guilt beyond a reasonable doubt, raises enough concerns that we no longer trust them. When the official has been removed from office, other than what they may be willing to tell us about other officials, we no longer care what happens to them. They are then private citizens who must face the same justice that the rest of do. In the end, I think the first trial and its consequences is much worse.
--Ozymandias1
(To reply, click here)
…the way Kinsley comes at the issue of a presumption of Libby's innocence is troubling. Kinsley seems to believe that establishing guilt is some sort of technical undertaking wherein a finding of innocence might not reflect "reality" or "truth" but merely the absence of jury agreement on what is beyond reasonable doubt. This paints a picture of American criminal justice very much like the one drawn by several generations of conservatives who have complained that obviously guilty criminals are being sprung on "technicalities" by sharp lawyers and criminal-coddling judges. But the fact is that most jury verdicts reflect the reality very nicely, thank you, provided there is something resembling persuasive proof.
In Libby's case, there may be overwhelming proof. Then again, there may be little or none. How can that be, when the indictment says so clearly that he did this and that? Well, that's the whole point of a presumption of innocence, is it not? A prosecutor -- even a very smart, responsible prosecutor -- and that tool of the prosecutor, the grand jury, present accusations, hopefully based on evidence that will be adduced in court but this would not be the first or last time if it turned out that these were flimsy accusations based on a prosecutor's exaggerated statement of the facts.
It's not that I expect that in this case, but the indictment is the prosecutor's version of "reality" -- his story or narrative -- and we haven't yet heard Libby's version out of court much less at trial.
--Publius
(To reply, click here)
True, the presumption of innocence is a conceit, and that rules of evidence in rendering justice do not necessarily apply to establishing truth. Thus, you say, that while the court must reserve judgment until the evidence subject to its rules is in, we outside the court are not likewise constrained, that judicial truth is not necessarily the historical truth, which we are free to pursue.
However, you are assuming that one truth does not impact the other, and is this not the brief against pretrial publicity? Certainly we are free to make up our minds regardless of a judicial outcome, as we did with O.J., but I don't think that's what you're talking about. I'm wondering if you aren't in fact engaging in special pleading, i.e. "though we are constrained in a courtroom, we are not constrained out here" is merely a way of furthering the interests of the chattering class.
--SoerenAabye
(To reply, click here)
(11/2)