As the tables turn on Durham County, North Carolina district attorney Mike Nifong, who has finally been appropriately reprimanded for his overt prosecutorial malfeasance regarding his undertaking into the prosecution of the Duke Lacrosse rape allegations, there is but another equally egregious malfeasance, if but only one, which ought to draw the ire of any American short on memory. I am of course referring to United States v. Libby.
Now, despite any such ruling to the contrary, Lewis “Scooter” Libby’s biggest crime is likely to have been working as chief of staff for the passionately loathed Vice President Cheney. In what was as much a witch hunt as the Duke debacle out of North Carolina leading this week to Nifong’s obvious disbarment, the United States v. Libby criminal trial proved just how unjust politics can be. But despite what vitriol those on the left may have for the Bush administration or rather anyone even remotely associated with it, Lewis Libby bears the crime of “forgetting to remember to forget”; while ordered to serve his sentence on appeal of the ruling which is indeed disheartening given the judicial stretch of the imagination leading to Libby’s “apparent crime” of perjuring himself during a trial for a crime in which no one was ever charged.
The case was, from the outset, questionable given the original jurisdiction of prosecutor Patrick Fitzgerald. The questionability stems from the initial appointment of Fitzgerald and whether or not Fitzgerald is an “inferior” or “principal” officer under the Appointments Clause of the United States Constitution. Couple this with the judge’s refusal to permit the jury to hear from a memory expert while not allowing for much consideration with respect to Libby’s extremely busy schedule and massive workload on matters of national security and you begin to see the root of a pattern to incriminate someone (anyone) who can take some sort of fall for the canard of lying us into the Iraq war. But, to say the stage had not been properly set for the forthcoming rush to judgment, the pursuit to bring down the Bush administration in this concerted attempt to criminalize nothing at all, the crux of the case is even that much more perplexing, if not downright ludicrous.
Contrary to popular belief, Lewis Libby was not charged with “outing” Valerie Plame. The man who disclosed Valerie Plame as a CIA employee to Robert Novak was Richard Armitage. Were it a crime to expose Valerie Plame as a CIA operative, neither Lewis Libby or Richard Armitage would have been charged with breaking the Intelligence Identities Protection Act. Because you see, while Valerie Plame was indeed employed by the CIA, her position was such that she was not protected under the provisions of the Act. Indeed this is a crucial fact; one in which Prosecutor Patrick Fitzgerald recognized and admitted that no law had been broken in the first place. And yet, the case (or rather witch hunt) proceeded with one of two counts; one involving conversations with reporter Judith Miller of the New York Times thrown out while the jury found for Libby on the count of conversations with Time reporter Matthew Cooper. The crux of the case however, comes from apparent discrepancies between a phone call Lewis Libby made to Meet the Press’ Tim Russert. It seems the recollection Russert has of the conversation didn’t quite gel with what Libby remembers. Either way, though we’ve asserted that Valerie Plame wasn’t protected from being “outed” and that it wasn’t Lewis Libby who “outed” her, the call Libby made to Russert wasn’t even about Valerie Plame but rather it was a complaint about Chris Mathews (I’m guessing they get a lot of those).
Now, those who are rushing to judgment in incriminating Lewis Libby for the crime of perjury ought to tread very lightly in harboring such a belief. For, under the United States Criminal Code: § 1623. False declarations before grand jury or court, any false declaration must not only be done knowingly but, more importantly, such a false declaration must be material to the point in question. Given that there was no criminal act stemming from the case, I’m still struggling to get my arms, not only around the belief that any falsification of Lewis Libby’s testimony was done intentionally but also, around the pertinence or relevancy of any of his testimony period. He could have rambled off his college transcripts for all we care and it still would have had no bearing on the case whatsoever. Let us say for the sake of example that you were on the stand for breaking into your neighbors home and stealing thousands of dollars in jewelry. Following the break-in of your neighbors home, their alarm went off and police were dispatched. Upon arriving to the home they nabbed a man wearing all black with a bag full of jewelry who admits to the crime. Nonetheless, you are on the witness stand and are asked, “On the night of the burglary in question did you or did you not floss your teeth before going to bed?” If you answer that you did but it is later discovered that you didn’t, ought that be considered perjury? In layman terms, that is precisely what Lewis Libby is up against.
We should seek protections from the act of prosecutorial malfeasance so that none of us should one day find ourselves hauled into court and sent to jail for a crime we didn’t commit. Political persuasions aside, that my friends is something we should all be very afraid of.
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