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Free Scooter LibbyThe case gets weirder by the day.

By Christopher Hitchens
Posted Monday, June 18, 2007, at 11:38 AM ET
Lewis "Scooter" Libby. Click image to expand.

If Scooter Libby goes to jail, it will be because he made a telephone call to Tim Russert and because Tim Russert has a different recollection of the conversation. Can this really be the case? And why is such a nugatory issue a legal matter in the first place?

Before savoring the full absurdity of the thing, please purge your mind of any preconceptions or confusions.

  • Mr. Libby was not charged with breaking the Intelligence Identities Protection Act.
  • Nobody was ever charged with breaking that law, designed to shield the names of covert agents. Indeed, the prosecutor, Patrick Fitzgerald, determined that the law had not been broken in the first place.
  • The identity of the person who disclosed the name of Valerie Plame to Robert Novak—his name is Richard Armitage, incidentally—was known to those investigating the non-illegal leak before the full-dress inquiry began to grind its way through the system, incidentally imprisoning one reporter and consuming thousands of man hours of government time (and in time of war, at that).
  • In the other two "counts" in the case, both involving conversations with reporters (Judith Miller of the New York Times and Matthew Cooper of Time), Judge Reggie Walton threw out the Miller count while the jury found for Libby on the Cooper count.
  • The call to Russert was not about Plame in any case; it was a complaint from the vice president's office about Chris Matthews, who was felt by some to have been overstressing the Jewish names associated with the removal of Saddam Hussein. Russert was called in his capacity as bureau chief; any chitchat about Wilson and Plame was secondary.
  • The call was made after Robert Novak had put his fateful column (generated by Richard Armitage) on the wire, and after he had mentioned Plame's identity to Karl Rove.

Does it not seem extraordinary that a man can be prosecuted, and now be condemned to a long term of imprisonment, because of an alleged minor inconsistency of testimony in a case where it is admitted that there was no crime and no victim?

I know of a senior lawyer in Washington who is betting very good money that if the case is heard again on appeal, the conviction will be reversed. This is for three further reasons, which I call to your attention.

1) There is an important constitutional question regarding Fitzgerald's original jurisdiction. It is a rather nice legal question, having to do with whether, as U.S. attorney for the northern district of Illinois, Fitzgerald is a "principal" or "inferior" officer under the Appointments Clause of the U.S. Constitution. A dozen senior legal scholars have filed an amicus brief, arguing that the authority under which the original prosecutorial investigation was conducted was itself dubious. I have no expertise in this very important matter, but in granting them leave to file, Judge Walton made the following hair-raising comment, which I reproduce in full because it is longer than his order and needs to be read in full:

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

2) This low sarcasm displays not so much bias against the defendant, but actual animus. What does the number of days have to do with it? In how many cases involving poor defendants is an issue of constitutional law involved? Does the judge not know that Libby has already been almost ruined financially and faces incarceration? Would he have adopted the same tone if 12 experts ranging politically from Robert Bork to Alan Dershowitz had filed a brief arguing the opposite position? It's difficult to see how an appeals court can avoid these questions.

3) The judge refused to let the jury hear from a memory expert and would not admit much of the evidence about Libby's extremely heavy workload on matters of pressing national security. An amazing collection of testimonials has been prepared, from all points of the political compass, regarding particularly Libby's concern about inadequate troop levels in Iraq and his work in strengthening the country's defense against bio-warfare terrorism. It seems to some legal observers that the judge's exclusion of some of this exculpatory evidence was a payback for Libby's decision not to take the stand, which is his constitutionally protected right.

The rush to prejudge the case and pack Libby off to prison seems near universal. (Patrick Fitzgerald has denounced him for failing to show remorse; a strange charge to make against a man who has announced that he intends to appeal.) Given the unsoundness of the verdict, the extraordinary number of other witnesses who admitted to confusion over dates and times, and the essential triviality of the original matter (an apparently purposeless coverup of a nonleak, in private and legal conversations, involving common knowledge of information that was not known to be classified), it is unlikely that the verdict at present can stand scrutiny, let alone the sentence. But why go through all this irrelevant and secondhand hearsay again? Those who want to "get" someone for "lying us into war" have picked the wrong man and failed to identify a crime. Let them try to impeach the president, who should in the meantime step in to avoid any more waste of public money and time and pardon Libby without further ado.

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Christopher Hitchens is a columnist for Vanity Fair.
Photograph of Libby by Mark Wilson/Getty Images.
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Remarks from the Fray Editor:

Many readers felt that Hitchens' column misrepresented the factual record of the trial. The most exhaustive critique was submitted by TheBrewmaster. Unfortunately, it's too long for this space, but click here to read it in full.—G.A.

Remarks from the Fray:

The exclusion of "experts" on memory testimony is generally within the judge's discretion under the Daubert case, incorporated into the federal rules to keep paid experts from hypothesizing that the earth is flat and that Libby could not remember anything past the last talking point memo that crossed his desk that morning. I suggest that Hitchens not quit his day job excoriating religion. His "free Libby" arguments fall on deaf ears with those who see the legal system favor those who abuse the auspices of power. His "commentary" attempts to devalue the role of grand jury, judge, and trial jury ex post facto in this case without giving us anything to chew on. Try again please

--nosjones

(To reply, click here.)

I'm not sure I understand the logic on [the fourth] point. Because he wasn't found guilty of two crimes, he must be innocent of the third?

--A_Noid

(To reply, click here.)

Hitch, you are absolutely on the mark about the absurdity of the Libby trial. The man was convicted of obstructing the investigation of a non-crime. The perjury charge always struck me as rather weak; the evidence seemed capable of several reasonable constructions consistent with innocence.

But whatever D.C. attorney told you that Libby may win his appeal is nuts. The challenge to Fitzgerald's jurisdiction will survive constitutional scrutiny, and appellate courts give tremendous discretion to the trial judge's decisions regarding who and who doesn't testify. It should be noted that Libby's decision not to testify (a crucial error in hindsight) could fairly be considered by the judge in choosing to disallow a so-called memory expert, without it being a punishment for Libby's invoking his 5th Amendment right not to be a witness. Without Libby testifying about whether he remembered the Russert conversation and about why he may have forgotten details, then the memory expert may not have been relevant.

As far as the trial judge's infantile remarks about academics filing their briefs, that will certainly be beyond the scope of appellate review, and no Circuit Court of Appeals is going to reverse this case over such a silly issue as extrajudicial sarcasm.

--aivlys

(To reply, click here.)

Hitchens argues that it would be illogical for Libby to show remorse if he is going to appeal. Well, virtually every person convicted faces this conundrum. It is hard to argue "actual innocence" when you've begged the court for mercy for your sins. But since you've already been convicted, "actual innocence" is already a bit hard to demonstrate. Make that, "virtually impossible to prove."

The jury is the finder of fact, and they were satisfied that there was enough evidence to convict. Hitch may think they were mistaken, but it takes an awful lot more before an appeals court will overturn.

--fozzy

(To reply, click here.)

Libby had the advantage of a Bush appointee for a prosecutor. He had the advantage of a Bush appointee for a judge. He had the advantage of a set of criminal procedures specifically designed to favor letting the guilty go rather than jailing the innocent. He had the advantage of lots of powerful friends and contacts to help with his defense. He had the advantage of a very high-priced defense attorney and practically unlimited resources. And he had the advantage of having twelve of his peers decide his fate. With all those advantages, he was found guilty and sentenced to prison. And yet he still has the advantage of an appeals process. If that doesn't work out for him, exactly why should any of us regard this as a miscarriage of justice? If you want to find a miscarriage of justice, look for defendants who weren't blessed with all those advantages.

--Arkady

(To reply, click here.)

Hitchens has to understand that many of us are still struggling to find our bearings in an ideological framework whose axes seem to be so fluid, and whose fundamental principles seem to be so counterintuitive. We're constantly being told that we're at war with the terrorists, and that we've been seriously harmed because we've lacked the intelligence-gathering assets "on the ground" in the world's far-flung hotspots. So you'd think—wouldn't you?—that those who went to considerable trouble and risk to gather that desperately-needed intelligence in faraway lands would be seen as the heroes, and someone else, who sought to permanently sabotage the ability of those aforementioned people to do their intelligence-gathering work—all in the service of a petty partisan vendetta—would be seen as a villain.

By the same token, you'd think that an administration who's official passwords seem to be "Freedom and Democracy" would have some respect for the laws of our land, its courts and its principles of due process. But no! As it turns out, the same people willing to violate the strictly specific provisions of a law ("FISA") designed to ensure a basic right of Americans to not be subjected to warrantless search and seizure, who grant themselves the limitless power to arrest and imprison anyone they declare to be a terrorist suspect and subject them to torture in foreign prisons without ever even charging them with a crime or granting them the service of an attorney, who attempt to turn the very Department of Justice into a tool for partisan profit and then suborn perjury to cover up these activities—these same people then turn around and say that a legally pristine process of investigation, indictment, trial, conviction and sentencing should all be overturned on their whim. Not overturned because Libby didn't actually lie, of course, but because prosecuting attorney Fitzgerald was either a "principal" or "inferior" officer, or because the judge at Libby's trial wrote something that seemed snotty.

Are we to grant the same special exemption for bad memory to our many hundreds of unindicted prisoners, who were probably also extremely tired and busy when they were arrested? Should we show mega-traitors Aldrich Ames and Robert Hansen leniency if they can prove that the Russians already kinda suspected the spies that they ratted out, so it wasn't really as bad as it looked? The whole point is that there seems to be no bedrock principle that the Bush administration and its neocon apologists respect. No principle except the notion that whatever they decide to do—even if it seems, or in fact can be proven in court, to violate the law—should be OK, and everybody should just shut up about it. Pardon our confusion.

--fingerpuppet

(To reply, click here.)

(6/22)