This post by Beldar answers my arguments about why it is wrong to prosecute Scooter Libby even though there was no fundamental crime committed.
I was always disturbed that Libby was prosecuted for lying even though there turned out to be no crime involving Valerie Plame. But as Patterico pointed out, Libby was prosecute not merely for false statements made after Fitzgerald's appointment, but for lying to the FBI before it.
Libby spoke to the FBI in October and November 2003. Fitzgerald was appointed on December 30, 2003. In getting to the bottom of the unauthorized leak, Fitzgerald would naturally want to look at the truth or falsity of the statements that major players had made to the FBI. Libby’s statements — especially the ones concerning his conversation with Russert — turned out to be implausible, when viewed in the light of testimony from numerous other witnesses.
I think this is an excellent explanation of Libby's prosecution, and it makes it seem less of a witch hunt.
Beldar said:
I've seen commenting on many other blogs, have fundamental misunderstandings about the nature of perjury law — and specifically, that they have the serious misimpression that sworn testimony can only be perjurious if it's about an actual crime that was at least committed by someone, and perhaps that also was indicted, prosecuted, and the subject of a conviction.
I never made the argument that one couldn't prosecute someone under these circumstances. My argument was that one shouldn't, largely because it uses up large resources and virtually no one is satisfied with the results. The people who hate George W. Bush and Dick Cheney aren't satisfied with the verdict (see here for examples of moonbatty argumentation at work), and the people who support the president are outraged that such a mountain was made out of Libby's falsehoods when there are others who have done worse and gotten no punishment (see Ann Coulter's column for examples).
But Beldar goes on to explain the key to Libby's prosecution: the importance of materiality.
If the intentional false statement is on some matter that is not material to the subject of the testimony, then it may not be able to support a prosecution and conviction for perjury. Thus, for example, if Prof. Jones is asked before the Grand Jury, “How old are you,” and being vain, he lies and says he’s 39 even though he’s really 49, that’s a deliberate and intentional false statement, but it’s not on a material matter because that’s not something that relates closely to the reason for him giving sworn testimony to that grand jury. (His age doesn’t relate to anything that grand jury is trying to find out.) But some people blur this “materiality” requirement in their minds, and come away with the impression that to be “material,” the testimony must relate to a crime.
Well, no, that’s not at all what “material” means...
Likewise, Libby’s testimony about who told him what and when, and who he told what and when, was absolutely “material” to Mr. Fitzgerald’s grand jury’s investigations. “Materiality” doesn’t depend on whether there really was a crime committed, or whether an indictment is ever returned, or on whether a conviction is ever obtained. The grand jury is entitled to get truthful testimony on the subjects that are material to its investigation even when — as here — it never finds probable cause to believe an underlying crime has been convicted, and therefore never indicts anyone. That’s why both Libby and Prof. Jones can later be found guilty of having committed perjury.
The key is that the grand jury needs to receive truthful testimony regardless of whether an actual crime is committed. It can't determine if a crime was committed without it. This goes into the "truth, justice, and the American way" jurisprudence we're taught in law school, but tends to get lost in the shuffle of everyday life.
Personally, I got caught up in the fact that Fitzgerald tried desperately to hang an indictment on Rove or Cheney and lost sight of the fact that Libby's conduct was wrong (as opposed to inadvertent). I tended to believe Libby's version of events, just as liberals have wanted to believe the unbelievable arguments made for Sandy Berger, Bill Clinton, and others.
Looking at the law in the abstract, it's clear that Libby's misconduct was worth prosecution. I still wonder if it is worth the cost.
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