Hogan's Alley

Tuesday, July 03, 2007

Perjury and Obstruction of Justice is Perjury and Obstruction of Justice, Period.

The three gentlemen pictured above, H. R. Haldeman, Bill Clinton and Scooter Libby were all charged with perjury and obstruction of justice. Haldeman and Libby were convicted and sentenced. Clinton, being President of the United States, could not be proscecuted and submitted to the tender mercies of a Federal jury. He was Impeached by the House. The Senate voted 55 - 45 to not convict him of perjury and 50 - 50 on the obstruction charge, which therefore failed to achieve the necessary majority.

Perjury and obstruction of justice are either crimes or they are not. The guilt or innocence of the person cannot be based on the reality or severity of the underlying crime. If that were the standard, then some lying and obstruction would be OK, even though the very acts of lying and obstructing might prevent prosecutors from being able to determining whether and which underlying crimes in fact occurred.

For my part, in those long ago days, B.B. (Before Blogging), I supported the conviction and jailing of the likes of Haldeman, Erlichman and the others of the Watergate era. I also supported the Impeachment of Clinton for his crimes. Yes, I know, he was not technically convicted by the Senate. But surely one can presume that if the same charges were presented to an Grand Jury and subsequently tried, a conviction would have been forthcoming. After all, the man went on TV speaking to the American people and barefacedly lied in the "I never had sexual relations with that woman, Ms. Lewinsky" speech. His conviction at a real trial would have been a slam dunk, to quote another current master of the half-truth.

So please spare me, yea purveyors of leftist and rightist screeds. You cannot have it both ways. As David Brooks so aptly put it today:

Republicans who’d worked themselves up into a spittle-spewing rage because Bill Clinton lied under oath were appalled that anybody would bother with poor Libby over lying under oath. Democrats who were outraged that Bill Clinton was hounded for something as trivial as perjury were furious that Scooter Libby might not be ruined for a crime as heinous as perjury. It was an orgy of shamelessness. The God of Self-Respect took sabbatical.
One can understand the calculus of the politicians. They are focused on the battle. Bush is trying to hold on to what is left of his Republican support in Congress. He needed to mollify them if he was to avoid a total descent into lame duckery. The Democrats needed, for the reverse of the same reason, that Bush deny any leniency. Both parties were acting in the time honored tradition of defending one's own kind at any cost and attacking the other side at any opportunity.

But pundits, those of the MSM and Blogosphere, ought to be held to a higher standard. Truth and logic should be stuff of their efforts. Those who quiver and prevaricate along purely partisan lines do not deserve our attention. They fully deserve our approbation.

As to Libby's sentence, supposedly the excess of which let Bush to commute it, the only test is that it should be just, as compared to the sentences routinely handed out to Federal defendants across the country. As to that, Edward Lazarus, at the FindLaw site has a well cited piece that discussed the Federal Sentencing Guidelines for Perjury and Obstruction of Justice. His conclusion:

Is it really fair, after all, to up Libby's punishment for obstructing an investigation in which there was no underlying crime charged (or perhaps even committed)? (Readers may object that a crime must have been committed, since no one can dispute that Valerie Plame's identity was, in fact, revealed. However, it is possible, for example, that the person who released the information lacked the state of mind necessary for criminal punishment.)

In his sentencing memorandum, Special Counsel Fitzgerald asserted that under the Guidelines, it does not matter whether the investigation ripened into an actual criminal charge against the defendant or anyone else. On this point, it looks like Fitzgerald has a pretty good legal argument, based on the text of the Guidelines and the accompanying materials.

And it's not hard to see why. The mere fact that the underlying investigation did not result in criminal charges can't be the difference-maker. If it were, then a really successful cover-up would result in more lenient sentencing for a perjury/obstruction defendant, than would a less successful one - that is, one which led to criminal charges. That makes no sense, as it rewards talented and effective deception, the most dangerous kind.

Against this backdrop, I find it hard to fault Fitzgerald for sticking with the tough-on-crime approach that has earned him so many admirers. He's driven by a genuine outrage at Libby's subversion of a legitimate and serious investigation into an abuse of power and, in prosecuting that subversion, he has gone straight by the book.

Lazarus also would not have found grounds for objection to a more lenient original sentence. He concludes:

I do not pretend to know what the precise right answer is in Libby's case, regarding the justice of his sentence. I don't think anyone not fully immersed in the investigation and evidence could know. The most I can say is that the Libby case is a good case study for why the Guidelines should only be advisory, not mandatory. Some cases just don't lend themselves easily to algorithmic answers; they call for the exercise of human beings' reasoned discretion.
The Probation Office, which is required to review each case and apply the sentencing guidelines recommended a sentence of 15 - 21 months. Arguably Bush could have commuted Libby's sentence to that level, but he chose to eliminate any jail time at all. Therein lies the fault, dear Brutus, in ourselves this time.

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