Guilty of Perjury

There is great irony in the fact the Scooter Libby was convicted for lying to a grand jury about who he informed about the truth that Valerie Plame worked for the CIA and was responsible for suggesting that her husband Ambassador Joseph Wilson be sent on a fact-finding mission to Africa. On the other hand Joseph Wilson and his wife are enjoying book royalties, possible compensation for a movie story, and puff pieces in Vanity Fair, when virtually everyone of Wilson’s claims were certified as false by the 9/11 Commission Report. Indeed, the Washington Post concedes that one outcome of the entire affair is that “[t]he former ambassador will be remembered as a blowhard.”

There are at least two important lessons from this episode. Lessons that politicians appeared destined to be continually re-learn.

The first lesson from this political tragedy is that one never ever lies under oath. It does not matter whether or not there is a substantive underlying issue in question, perjury and obstruction of justice can and generally ought to be prosecuted. This mistake was largely responsible for the fall of President Richard Nixon and resulted in the impeachment of President Clinton.

When the Valerie Plame story broke, many wondered whether the release of Valerie Plame’s name violated the 1982 Intelligence Identities Protection Act. It turns out that under the provisions of the act Plame did not qualify for protection. This interpretation is given tremendous weight by the fact that Special Counsel Patrick Fitzgerald did not even charge anyone with this crime, though many have since admitted that the spoke of Plame’s CIA position. Indeed, the original source of the leak which appeared in an article by Bob Novak was Deputy Secretary of State Richard Armitage. The original claim by Administration critics is that Valerie Plame’s name was released by the Administration as retribution against her husband. Actually, Armitage was no fan of the Iraq War. He released Plame’s name in passing as a way to explain how some as conspicuously indiscreet as Wilson would be sent on a sensitive mission to Niger. Despite Wilson’s initial denials, he was sent on his because his wife suggested his name to the CIA.

The second lesson is that decisions to appoint special counsels are almost invariably mistakes. Ordinary prosecutors are faced with finite resources and many potential crimes to investigate. They are consequently compelled to prioritize: to choose those crimes that are deserve government resources. They are forced to weigh the public benefit to the prosecutions against the costs. Special counsels, by definition, have a narrow focus and unlimited resources. This situation usually devolves to trail distorted decisions.

Even before Fitzgerald became the special counsel the Justice Department knew that Armitage had given Plame’s name to Novak. Fitzpatrick’s next step should have been to determine whether that revelation violated the law. Any reasonable reading of the relevant law would have concluded that no law was broken. Indeed, no one was ever charged with a crime from revealing the Plame’s name. The special counsel’s office could reasonably have closed up shop within months or weeks.

Instead, given a blank check for further investigation, Fitzgerald trolled for perjury by conducting grand jury hearings. This does not excuse perjury or obstruction of justice on the part of Libby or anyone else, but is does reveal the injustice of unconstrained and unaccountable prosecutions. Indeed, on the jurors, Ann Redington, while driven by the compelling logic of the law to convict Libby concludes that justice would be served by pardoning Libby.

This is a particularly sorry episode, of using the criminal justice system to adjudicate political disputes and on that , in the words of the Washington Post, “besmirched nearly everyone it touched.”

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