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In Defense of Lewis Libby

Lewis Libby is the victim of a conscience-shocking grand jury indictment, secured entirely by entrapment. Libby, the former chief of staff to the Vice President Cheney, was arraigned in federal court November 3. The entire matter should have been dismissed at that time.

It is appalling that this investigation, which began approximately two years ago, has continued one day past the full determination that the federal national security statutes did not apply to the controversial CIA agent Valerie Plame in the alleged disclosure or ‘outing’ matter.

Once it became clear that the Plame issue was moot, the prosecutor should have pulled the plug on the investigation.

Instead, he acted under false pretences and without authority to go fishing in the White House, with seemingly enticing bait. Everything after the conclusion that there was in fact no ‘outing’ crime committed is fruit of the poison tree. It must be tossed and the innocent Libby restored to his former position—right now. Justice delayed is justice denied.

This entire matter is a malicious abuse of a process at the behest of the Democrats in Congress and the significantly biased left-wing national media. You know who you are!

Patrick Fitzgerald is the special prosecutor who was appointed to investigate a violation of someone having violated:  “Title 50, Section 421. Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources.”

After reading the statute, which takes an hour at most, the investigation begins. Assuming it takes a month or three to secure and review the Plame files, a conclusion on the part of the prosecutor logically follows.

No one has been indicted for exposing Plame. Today, it is clearly recognized that the statutes are narrowly tailored and that Plames’ exposure does not meet the criteria of the criminal statute.

Evidently, one plus one no longer equals two in the American justice system. The U.S. Supreme Court stated the following in Berger v. U.S. (295 U.S. 78, 1935):

"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

Fitzgerald and the entire Democratic Party, a significant number being lawyers, seem to have forgotten the part where he is to "prevent innocence from suffering" or "use improper methods calculated to produce a wrongful conviction."

Here the issue is obtaining a wrongful indictment, sufficient enough to harm Libby. The next step is to obtain the wrongful conviction. 

There is a principal in the law regarding entrapment by law enforcement. Essentially, entrapment means setting up a trap. The U.S. Supreme Court in Sherman v. U.S. (356 U.S. 369, 1958) said this:

"A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute." 287 U.S., at 442. Then stealth and strategy become as objectionable police methods as the coerced confession and the unlawful search. Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations.

“[F]or my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part." Insofar as they are used as instrumentalities in the administration of criminal justice, the federal courts have an obligation to set their face against enforcement of the law by lawless means or means that violate rationally vindicated standards of justice, and to refuse to sustain such methods by effectuating them.

Next we have U.S. v. Russell (411 U.S. 423, 1973), which stated:

"The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. … However, ‘A different question is presented when the criminal design originates [411 U.S. 423, 435] with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.’" Id., at 372, quoting Sorrells v. United States, 287 U.S., at 442.

“No other issue, no comparison of equities as between the guilty official and the guilty defendant, has any place in the enforcement of this overruling principle of public policy." 287 U.S., at 459.

Then to continue, the case Mathews v. U.S. (485 U.S. 58, 1988):

“The District Court denied petitioner’s pretrial motion seeking to raise an entrapment defense, ruling that entrapment was not available because petitioner would not admit all of the elements (including the requisite mental state) of the offense. …

“…Even if the defendant in a federal criminal case denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment – a defense that has the two related elements of Government inducement of the crime, and a lack of predisposition on the defendant’s part to engage in the criminal conduct.

"Although the Federal Rules of Civil Procedure specifically authorize inconsistent pleading, the absence of a cognate provision in the Federal Rules of Criminal Procedure is not because of the Rules’ intent to more severely restrict criminal defendants than civil parties, but because of the much less elaborate system of pleadings—particularly with respect to the defendant—in a criminal case. [ ** ] A simple not guilty plea puts the prosecution to its proof as to all elements of the crime charged, and raises the defense of entrapment. Moreover, the Government’s arguments that allowing a [485 U.S. 58, 59] defendant to rely on inconsistent defenses will encourage perjury, lead to jury confusion, and subvert the trial’s truth-finding function are not persuasive. The question whether the evidence at trial was insufficient to support an entrapment instruction was pretermitted by the Court of Appeals, and is open for consideration by that court on remand. Pp. 62-66.

"The Government points out that inconsistent pleading is specifically authorized under the Federal Rules of Civil Procedure, but that there is no parallel authorization under the Federal Rules of Criminal Procedure. Rule 8(e)(2) of the Federal Rules of Civil Procedure provides in relevant part:

"A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses . . . . A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal, equitable or maritime grounds. All statements shall be made subject to the obligations set forth in Rule 11."

To my thinking and logic, this is desperate attempt to have rendered unto Caesar or in this case the Democrats that which they declare theirs.

How Mr. Fitzgerald got stuck in this swamp I cannot say.

What I can say is that this indictment is anathema to the Fair and Just treatment of Mr. Lewis Libby.

Written By

Mr. Weinstein is an activist who was once the innocent target of New Jersey prosecutor Nicholas Bissel. The indictment against him was dismissed with prejudice.

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