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Lessons from the Libby Verdict

What are some of the lessons from the Scooter Libby guilty verdict? Here are four of them.

Tell the truth and if you can’t remember, say so. It appears that Mr. Libby’s “disremembering”  brought on his conviction violated the basic instructions given by any attorney to a grand jury witness: Tell the truth, do not lie and if you cannot remember, say so.

Even as skilled a lawyer and powerful public official that Libby was, appearing before a grand jury is an intimidating process.

As an attorney and a former fact witness in a politically-driven grand jury — not a target — I  was aware that the slightest slip up could lead to a perjury charge. A witness appears with no notes, no lawyer, no appointment books.

But the biggest challenge is that a witness may have no context for the questions asked. What may seem an irrelevant detail could be the key to the case the prosecutor is trying to make. The burden placed on Mr. Libby in the grand jury expects an attention to detail and memory that none of us could muster.

The other alternative — that Libby deliberately lied — can only be true if there was terminal hubris in the Vice President’s Office. There was a unanimous jury verdict that Libby “knowingly and willfully” lied to the FBI and grand jury and it deserves respect unless overturned.

Whichever is the case, Libby and his lawyers brought on this result, in part, through their own mistakes, criminal or otherwise.

Criminal grand juries are too blunt an instrument for political disputes. President Bush may now regret calling for the full force of an FBI investigation on what we now know was not an illegal “leak” of the name of a covert CIA operative.

Seeking to discover a traitor in his administration, the President may have been, in the words of Shakespeare, hoist by his own petard.

Republican and Democrats have both been the instigators and the victims of run away criminal investigations that are essentially political and partisan battles.

Elected officials, usually with the goading of the press, are too quick to fob off a growing political and policy issue on the Justice Department.

How many times do officials need to learn that run away so-called accountability investigations usually do not achieve their goals. Other agendas quickly take over.

In the Libby investigation, there was no criminal leak but the Democrats use the investigation to promote their own views.

Ambassador Joseph Wilson — a minor and despicable low life player in the Bush 43 era — got his book, his Kerry campaign job (briefly) and now a movie. Fortunately for him, his serial lies were not under oath. Clearly the Bush/Cheney vendetta against Wilson has been used skillfully by Wilson to promote his own cause.

The federal prosecutor, long after he learned that then-Deputy Secretary of State Richard Armitage was the source of the information on Valerie Plame, continued to press the case and try and discredit the Vice President.

And perhaps most disturbing, Denis Collins, a journalist who has written for the Washington Post, got on the jury and will surely have his own book out shortly.

It is unlikely that politicians will learn the lesson about the dangers of politically-driven criminal investigations. Too many people benefit from the process.

The is no “press shield” to protect the press or government officials.  The Libby Affair put a further nail in the coffin of the idea that government officials can secretly leak information to the press and be protected by promises of confidentiality from the press.

No government official should be comforted in the future by a promise from an NBC, New York Times, Time Magazine or other media reporter that they will “go to jail” to protect their sources.

As a person who mistrusts both the media and the government, this is a development that has me in a quandary. When my team in is power, I want strict application of the no leak rules, but when the other side is in power, I know leaks may be the only way to uncover wrongdoing.

On balance, as citizens, we may come to regret this further closing of the window on access to government.

The Presidential pardon is a political power that should be used in this political case. Assuming that Scooter Libby’s appeals fail, the debate is already underway as to whether the President should grant a pardon.

This a case based on an investigation of alleged crime that never occurred. The President ordered his staff to participate in a criminal investigation even though, it is now known, none of them engaged in an unlawful disclosure.

But in a high profile investigation, the prosecutor could not fail to bring at least one prosecution. Scooter Libby drew the short straw for either deliberately misleading the grand jury, as the jury found, or for misremembering details of a series of conversations held month before being questioned by the FBI.

In either case, this an appropriate matter for a Presidential pardon.

The President’s power to grant reprieves and pardons is absolute. It is a political act delegated solely to the President by the Constitution. A pardon removes both punishment and guilt.

Because it is a political act, a President must consider the political costs before he issues any pardon.

Gerald Ford paid the highest political price for a pardon. But Presidents George H.W. Bush and Bill Clinton were willing to incur the political costs in pardoning government officials.

In 2001, President Bush stated, “Should I decide to grant pardons, I will do so in a fair way. I will have the highest of high standards.”

It would be fair and proper political act for the President to pardon Scooter Libby before he leaves office. With the President’s political standing today, he does not have much to lose.

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Written By

Mr. McLellan, a Lansing, Michigan attorney and former special assistant to the state attorney general of Michigan, is head of the Government Policy Department at the firm of Dykema-Gossett.

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