Lose-lose situation
Posted by David M. Nieporent on March 8, 2007
So, with the Scooter Libby verdict in, everyone is talking about it as a blow to Bush. But from a broader perspective, were there any winners in this case? Let’s break it down:
- Scooter Libby is obviously the big loser. Even if he does get a pardon from Bush. He’s no Ollie North; he’s not going to be able to parlay this prosecution into a prominent public career.
- In the narrow view, Patrick Fitzgerald secured a conviction on 4 of 5 charges, which was a success. But the only person he convicted was Scooter Libby — hardly what everyone was expecting when this non-scandal began — and he convicted him only for perjury, not for the underlying leaking offense. What he mainly succeeded in doing is demonstrating once again that ‘special prosecutors’ are a really bad concept.
- For those same reasons (the identity of the defendant and the nature of the charge), it’s anti-climactic for Democrats, who were hoping this would bring down the administration, or at least a big name like Karl Rove or Dick Cheney. Nope.
- Ditto for Joseph Wilson, who famously ranted that he wanted Karl Rove “frog marched out of the White House in handcuffs,” and his wife, Valerie Plame, about whom all we proved is that she really wasn’t as important as her supporters had portrayed her as being.
- The media crying for the investigation — I’m looking at you, Mr. New York Times — ended up getting several reporters in trouble, weakening the reporter-source non-privilege, and still not getting the big game that they wanted.
- Since Libby was the only one convicted, and only for perjury, it’s not a big blow to the administration — but it’s not exactly a shining moment, either.
- For the same reason, it’s hardly good for Republicans, generally.
Did I leave anyone out? (Some blogger, maybe?) I guess I’m trying to draw some broader lessons from this case, because as a purely legal matter, it turned out to be pretty darn trivial. I don’t subscribe to the view — I didn’t when Bill Clinton was in trouble, and I don’t now — that it’s no big deal to obstruct justice just because the underlying conduct wasn’t criminal. Whether the underlying conduct is criminal something which has to be determined after the fact, not something for witnesses or defendants to unilaterally decide. At the same time, if there was no crime, then the obstruction becomes mostly a technical violation — something we need to punish, but not something we need to dwell upon.
I mean, ultimately, what do we have? Scooter Libby either honestly forgetting when he told something to Matt Cooper and Tim Russert, or lying about it. Something it was legal for him to tell them. Whoopee. I miss the days when we had really important legal issues to discuss, like whether John Kerry deserved his medals from 30 years ago or whether George Bush was AWOL at the time.
Steven said
I agree
Ara said
But the only person he convicted was Scooter Libby — hardly what everyone was expecting when this non-scandal began — and he convicted him only for perjury, not for the underlying leaking offense.
No, actually he was also convicted of obstruction of justice and making false statements, both of which are serious felonies that you’d think a seasoned lawyer like Libby would recognize. If anything, the reason Fitzgerald was able to only put Libby in the dock is that he (and his cohorts) were able to game the system almost perfectly. Libby, metaphorically, caught his coattail in the door scramming and thus Fitz was able to catch him in time.
it’s anti-climactic for Democrats, who were hoping this would bring down the administration, or at least a big name like Karl Rove or Dick Cheney. Nope.
Um, no. This Democrat was simply hoping to see justice done. Besides, turning it around, are you satisfied that Rove and Cheney escaped?
…Valerie Plame, about whom all we proved is that she really wasn’t as important as her supporters had portrayed her as being.
Again, no. Just no. Are you thinking that because she didn’t wear a trenchcoat, fedora and sunglasses that she wasn’t undercover? Google “Brewster-Jennings” and tell me that Cheney didn’t royally screw a lot more people than Valerie Plame.
weakening the reporter-source non-privilege, and still not getting the big game that they wanted.
One of the things that baffles me is why reporters continue to accept the garbage given to them — off the record — by senior administration officials when (time and again) it has turned out to be self-serving crapola. This sorry episode — hopefully — has revealed the dangers of being a dope.
it turned out to be pretty darn trivial.
Yeah, “a third-rate burglary” if you will.
I’d suggest that we haven’t really even begun to unravel the story.
For example, why would a smart guy like Libby risk his entire career in this way? Why was he willing to take the fall? Was this all about Cheney all along? Was Cheney doing this simply to punish Wilson? Or was he trying to conceal something really big? Others have suggested that the Niger-uranium controversy has roots in the Italian government, British Intelligence, the CIA and the start of the Iraq war — even before 9/11.
At the same time, if there was no crime, then the obstruction becomes mostly a technical violation — something we need to punish, but not something we need to dwell upon.
“Technical violation?” Dude, you’re a lawyer! It was perjury and obstruction of justice. If you lie to the court and get away with it, what good is our system of justice?
Scooter Libby either honestly forgetting when he told something to Matt Cooper and Tim Russert, or lying about it. Something it was legal for him to tell them.
Again: Scooter Libby was convicted of perjury, obstruction of justice and making false statements. All of that occured while talking to the FBI and the grand jury, not Matt Cooper and Tim Russert.
The story isn’t over. For example, I do believe John Conyers will have something to say about this soon.
PoliticalCritic said
Either way, Scooter Libby will be pardoned. Bush already has support from the fringe elements of his party, which are his only supporters anyway. Maybe he waits until Libby’s legal options are exhausted (i.e. appeal), but the pardon will come soon.
Ron Coleman said
Is there a better definition of the story being over?
zach. said
ron,
i think it’s pretty much a situation with no winners or losers. unlike the clinton scandal, where the salaciousness made it good water cooler talk, i think the average american has precisely zero reaction to this story. people who think wilson was a toad still think that, people who think rove was the manichean mastermind still believe it. about the only person this decision effects is scooter libby.
Ron Coleman said
I think you’re right, Zach. It’s mostly Beltway news except for the Libbys. And, maybe, John Conyers.
ArnoldHarris said
Ms Plame’s former supervisor said her assignment was not covert. Classified or not, her duties comprised little more than paper shuffling or other forms of what is lightly termed “analysis” at CIA headquarters.
So the fact was, she was just another federal employee. Because the regulations about exposing the identity of such people apply only to covert agents.
Arnold Harris
Mount Horeb
K said
It is pretty clear that Libby was guilty. It is a lot less clear why he followed such an odd course. He should have said he wasn’t sure. Or, if he was sure, he should have told the truth.
This matter won’t close until at least the next elections. Democrats in Congress will keep hearings going throughout the campaign. And Fitgerald will rummage around in hopes of finding another way to charge someone. Finally, after the 2008 elections, if the Democrats win, there will be legal attempts to get Cheney and Bush who will be out of office.
I have no idea what the truth of this matter is. Or of who did what. It doesn’t matter anyway, it is just a political tool from here on.
David Nieporent said
Ara,
I used perjury as shorthand; I know he lied both to the grand jury and to investigators. But that doesn’t change what he lied about: legal conversations he had with Tim Russert and Matt Cooper. (And again, I am not saying that it’s okay to obstruct justice in this way, nor did I say that he should “get away with it”; I’m just saying that there’s no bigger picture here.)
As for Plame, she apparently used to be covert, working on NOC. But she was working a desk at the CIA at the time Novak wrote the article, and as the Boston Globe reported at the time, the CIA had put very little effort into establishing Brewster-Jennings as a viable cover.
Finally, as for the media, they accept the things they’re told because 90% of reporting is stenography. Yes, there’s some great investigative journalism out there. But most is simply repeating what people tell them. And if they don’t do that, then people will stop telling them things, and they can’t do their jobs as they understand them.
Ara Rubyan said
David:
But that doesn’t change what he lied about:
I know how you feel about this. I felt the same way about Clinton’s lying. But after I thought about it some more (like between 1998-2006) here’s what I found: what Libby/Clinton lied about is beside the point. But you don’t need me to tell you that, right?
All that’s left is to ask the question, “Why? Why’d they do it?”
In Clinton’s case (and I haven’t read his book) he probably feared being outed as a sex addict, or he feared destroying his marriage, or shattering his daughter’s faith in him.
In Libby’s case, we still don’t know why he did such a blindingly stupid thing. But that won’t stop some people from digging down further to find the answer.
David Nieporent said
Ara, I know you want to pigeonhole me as saying that Libby shouldn’t have been prosecuted because he didn’t lie about anything important, but I’m not saying that. I’m not denying he should have been prosecuted, but I’m saying that question is independent of whether what he lied about was important. We can say both
1) He should have been prosecuted because he lied.
2) What he lied about wasn’t serious.