Wednesday, February 14, 2007

Scooter Libby & George Costanza

Scooter Libby's defense goes something like this: Okay, mabye I did tell the FBI that I learned Valerie Plame was a CIA agent from Tim Russert, but that's because: a) In general I'm a really really busy guy who can't remember details from hour to hour; and b) I spoke to lots of journalists about the Joe Wilson business and didn't tell them anything about Plame, so I can't be expected to remember that my conversation with Russert went differently.

As Richard Nixon famously observed, it's not the crime that does you in; it's the cover-up. For reasons that have not yet been made clear to the public, Fitzgerald decided not to charge Richard Armitage, Ari Fleischer or Karl Rove with leaking Valerie Plame's name to the press, even though they have all now admitted doing so. Perhaps Fitzgerald concluded that they did not thereby break the law. In any event, in keeping with the pattern in cases of this sort (think Martha Stewart, Bill Clinton's impeachment, etc), the case Fitzgerald did bring charged lying to investigators. Conventional wisdom holds that prosecutors bring obstruction/lying cases because they're often easier to win than charging the underlying offense. But should Libby's defense prevail, that might challenge the conventional wisdom.

When a defendant is charged with lying to the FBI, to a grand jury or to other investigators, one way he can deny the charges is by showing that the underlying statement is true. Libby's gambit is a variation of the George Costanza dictum: "It's not a lie, if you believe it." By admitting that his statement was or may have been false but claiming that he believed it, Libby makes the case about his subjective mental state. And while subjective mental state can be proved through objective evidence, that's not always so easy.

The puzzle, then, is why Libby isn't testifying. He doesn't have any prior convictions that would come in for impeachment. And while the jurors will be instructed not to draw any adverse inferences from Libby's failure to testify, they've got to be wondering why he doesn't get up and say, point-blank, "I thought what I said to the FBI was true. I guess I might have remembered incorrectly." Presumably Ted Wells, Libby's lawyer, thinks that his credibility would be damaged by cross-examination. Which leads those of us in the observing public---who are not governed by the Rules of Evidence---to wonder whether Libby was deliberately lying to the FBI after all, and not just failing to remember. For if that's true, and if Wells knows it, he can't put Libby on the stand. To do so would be to suborn perjury.

6 comments:

Craig J. Albert said...

In my humble opinion, the defendant has to testify in a perjury case. Not in the legal sense, of course, but in the theater sense.

Think about it this way. Most criminal cases involve testimony about about events not involving testimony. "I saw him pull out the gun." "He said, 'I'm going to Cripple Creek with Wilson'." "I saw him pick up the money." Perjury, though, is different. In a perjury case, the prosecution basically says, 1) Defendant swore an oath to tell the truth, 2) These are the words that he then said, 3) Those words were false, and 4) Looking at the other testimony, you should infer that he knew the words were false when he said them. What can the defendant do? He usually can't deny that he took the oath or that the words were spoken (in Libby's case, we did have a sub-issue regarding the accuracy of the FBI agent's memory of what Libby said in an interview, though). He can quibble over falsity (see the cross-examination of Russert). But at the end of the day, the debate almost always comes down to the scienter issue.

On the scienter issue, the defendant's testimony is an in-court demonstration of how the witness behaves when he swears an oath. For example, in the Libby case, it would be fair for the jury to contrast the way Libby sounded when he swore an oath to the grand jury with the way he sounds today. Does he seem nervous or forgetful today? Uncertain?

Judge Walton is going to give the required charge about not drawing any inferences from the defendant's failure to testify, but let's face it. Libby already waived his right to refuse to testify before the grand jury, and that's why he's sitting at the defense table today. If his lawyers harbor any hope of an acquittal, they need to have Libby testify and thereby give the jury a live demonstration of how Libby behaves when he takes an oath.

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