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[Richard Painter, guest-blogging, March 24, 2009 at 6:11pm] Trackbacks
Vice President Cheney:

A few commentators bring up Vice President Cheney.

I represented the President and his staff, not the Vice President and his staff. David Addington handled that side of things, and I don't think he is blogging today.

I take issue in my book, however, with the Vice President on a few matters including the following:

Although the Vice President did not retain an economic interest in Halliburton that likely affected his official duties, the complex arrangement used by his lawyers to donate his Halliburton stock options to charity while he retained title to the options would not have passed muster under the federal conflict of interest statute 18 U.S.C. 208. The only reason the arrangement worked legally was because Section 208 applies to every federal employee except the President and Vice President. Anything he did to dispose of Halliburton stock or stock options would be purely voluntary. Nonetheless, when appearances mean everything in Washington, he should have gotten rid of the options. Once the invasion of Iraq and reconstruction of Iraq were imminent, this became an even more pressing concern.

The Vice President's staff at times spent too much time arguing about who had the power to tell who to do what -- separation of powers and executive power issues -- instead of who should do what. For example, there was a dispute with the National Archives over whether its regulations for handling of classified information applied to the Office of the Vice President (OVP). Because OVP has both legislative and executive branch functions these are fascinating constitutional questions for a law review article, but OVP's spat with the National Archives did not address the issue that most Americans care about, which is whether proper procedures for handling classified information are being followed. This was particularly worrisome when there was in fact a controversy over whether classified information about a CIA agent was leaked and the OVP had some connection with that controversy. I was the person charged in November 2005 with giving ethics lectures, together with Bill Leonard from the National Archives, to the entire White House staff on handling of classified information and other ethics matters (this is I believe the only time I was written about widely in the newspapers). From an ethics lawyers' perspective it does not help to have some people arguing about whether the rules technically apply to them.

Finally, Scooter Libby got a good deal from the President; a full pardon would have been too much. Perjury traps are not that difficult to avoid if one uses an old strategy called telling the truth. I regret that we did not include in White House ethics lectures a warning "do not lie under oath" but such should be self evident, particularly after the previous President nearly lost his job over perjury or near perjury on a relatively minor matter.

Dave N (mail):
I regret that we did not include in White House ethics lectures a warning "do not lie under oath"
Actually good advice all the way around--and worth repeating in all contexts.

Years ago, I did a training program for young police officers along with a prominent defense attorney.

Though the class occurred close to 15 years ago, I remember one of his lines as if it were yesterday:

"Do not lie. Not even a little bit. Not even about somethig unimportant. Because if you do and if I catch you, I can guarantee you two things. One, I will make it my mission in life to destroy your career; and two, every case I have where I see your name on a report will go to trial."
3.24.2009 6:24pm
Oren:

... donate his Halliburton stock options to charity while he retained title to the options would not have passed muster under the federal conflict of interest statute 18 U.S.C. 208.

For the rubes out here, what exactly does it mean to donate something while retaining title? I associate "donate" with "relinquish ownership" and "retain title" with "continue ownership".
3.24.2009 6:38pm
Kazinski:
Oren,
It may be the options were not transferable so he had to hold title until they were exercised. The other scenario I can see is he would get a larger tax deduction if he donated them at their exercise value. But you can certainly contractually obligate yourself to making a future donation of an asset while still retaining title.
3.24.2009 7:38pm
Ken Arromdee:
Perjury traps are not that difficult to avoid if one uses an old strategy called telling the truth.

Telling the truth doesn't avoid perjury traps. It may avoid a conviction once you're caught in the trap, but a trial can be devastating even to an innocent person, not to mention that the court of public opinion can easily convict an innocent person.

There's a video going around the Internet titled "Don't Talk to the Police". Many of the same reasons why talking to the police is bad for you have parallels here. What if you misspeak? What if you tell the truth but it conflicts with some other (mistaken or false) evidence, and it gets you sent to jail? What if you get quoted out of context (courts of public opinion are prone to this)? What if you told the literal truth but this is considered to be misleading anyway?
3.24.2009 7:50pm
Allan L. (mail):
Cheney? Is he still alive?
3.24.2009 7:51pm
a knight (mail) (www):
All may not yet be lost within Contemporary Conservatism:

Scooter Libby got a good deal from the President; a full pardon would have been too much. Perjury traps are not that difficult to avoid if one uses an old strategy called telling the truth.

I do feel that "perjury trap" is a bit of a stretch. When considered in the context of recent caselaw, and authorship, it is a slight indicator that conservatives believe they are accountable to a differing standard of law than everyone else:

We cannot imagine how it could be true that falsely denying guilt in a Government investigation does not pervert a governmental function. Certainly the investigation of wrongdoing is a proper governmental function; and since it is the very purpose of an investigation to uncover the truth, any falsehood relating to the subject of the investigation perverts that function. It could be argued, perhaps, that a disbelieved falsehood does not pervert an investigation. But making the existence of this crime turn upon the credulousness of the federal investigator (or the persuasiveness of the liar) would be exceedingly strange; such a defense to the analogous crime of perjury is certainly unheard-of.

Justice J. Scalia, Brogan v. United States (1998); majority opinion

It also should be noted when The Federalist Society decided to remove a resounding approval of Brogan, authored by former Scalia Law Clerk, Alex M. Azar II, from its website, and toss it into the memory hole, as the timing is suspect. The Internet Archives' last crawl of the page was on October 2, 2006, but I first read it in January of 2007.
3.24.2009 9:19pm
blog fiend (mail) (www):
"near perjury"

???
3.24.2009 9:36pm
Dr. Weevil (mail) (www):
A dumb question from a non-lawyer:

If "falsely denying guilt in a Government investigation" is perjury, does that mean anyone who pleads not guilty of a crime and is subsequently found guilty of it can be charged with perjury, and sentenced to jail time over and above that assigned for whatever crime he was originally charged with? That may sound fair -- I'm of two minds about it -- but that's not the way things are done now, is it?
3.24.2009 9:43pm
anotherpsychdoc (mail):
Perjury traps are not that difficult to avoid if one uses an old strategy called telling the truth.


I feel you think or do know something about the facts that wasn't brought out in the trial. To me Fleischer could have lied to avoid being where the buck stopped (and passed it on to Libby) in what looked to him like a hunt for Cheney. Everybody else Fleischer 'talked to' disconfirmed what he had to say. The CBS staff was given extraordinary courtesy in not having their version looked at. To me the lesson of the trial is that, if others might lie and leave you holding a perjury bag, the Fifth is the way to go.
3.24.2009 10:44pm
Ricardo (mail):
If "falsely denying guilt in a Government investigation" is perjury, does that mean anyone who pleads not guilty of a crime and is subsequently found guilty of it can be charged with perjury, and sentenced to jail time over and above that assigned for whatever crime he was originally charged with?

I think falsely denying guilt refers to actually talking to investigators and giving them a false version of events -- that's illegal as it should be. If you keep your mouth shut except to plead the Fifth and to answer "not guilty" when asked by a judge to enter a plea, you can't be charged with perjury or any additional crime.

Of course, in reality, if you plead not guilty to a crime and go to trial, you will likely get a more severe sentence than if you plea bargained. Arguably, that's a way of punishing guilty people who deny responsibility.
3.24.2009 11:11pm
Visitor Again:
A dumb question from a non-lawyer:

If "falsely denying guilt in a Government investigation" is perjury, does that mean anyone who pleads not guilty of a crime and is subsequently found guilty of it can be charged with perjury, and sentenced to jail time over and above that assigned for whatever crime he was originally charged with? That may sound fair -- I'm of two minds about it -- but that's not the way things are done now, is it?

+++++++++++++++++++++++++++

Not at all a dumb question.

A plea of not guilty is not made under oath. Moreover, entry of a plea of not guilty is the only way one secures one's constitutional right to a trial. (One can remain mute when asked for a plea, but in that case the judge will enter a not guilty plea.) So the plea of not guilty has constitutional underpinnings; indeed, it might be said one has a constitutional right to enter a plea of not guilty regardless of whether one is guilty or not.

Defendants who testify falsely at trial are subject to perjury prosecution, although it's not often they are charged.
3.24.2009 11:28pm
PatHMV (mail) (www):
Visitor Again... that the plea of not guilty is not made under oath is immaterial. It is currently against the law to lie to a wide range of government officials, even if one has not sworn to tell the truth to them, even, frankly, if one is not warned that telling a lie to the person asking questions is a crime.

That the plea of not guilty is constitutionally protected, I agree. But the fact that it's not made under oath has nothing to do with it, under today's unfortunate legal landscape.
3.25.2009 12:39am
a knight (mail) (www):
anotherpsychdoc - far too much unsupported speculation in what you've asserted here.

"what looked to him like a hunt for Cheney" - Libby believed that a Republican appointed US Attorney with a reputation for being a hard-nosed by the book player, who because the Attorney General needed to recuse himself to avoid any appearance of impropriety, had been chosen to investigate a CIA request into whether one of its covert employees had been illegally outed was in reality "The Hunt for Darth Cheney"?

Everybody else Fleischer 'talked to' disconfirmed what he had to say - which may well have been true initially, but Ari was given, and accepted the opportunity to amend his previous testimony, which causes me to believe the same option would have been available for Libby also.

others might lie and leave you holding a perjury bag - this one is a real laugher. The only charge that could possibly have been hanging over Libby's head if he had simply done the honourable thing, and testified truthfully, would have required that the prosecution proved as fact; Libby knew at the time he talked about Plame, that she was a covert CIA employee, and from what I've been able to discern, it is exceedingly unlikely that he was aware of this before the news hit the fan. Nobody left Libby holding a perjury bag. He freely chose to lie under oath to a grand jury as a redirection providing cover for Cheney. Worse, there are strong indications that Libby is no G. Gordon Liddy either, and expected a full-pardon as a quid pro quo in return.

Eslop's fable of "Poor 'lil Scooter and The Mean Ole Prosecutor".
3.25.2009 1:24am
a knight (mail) (www):
Apology, it seems I should have offered some explanation for my citation of Brogan v US, because it is not directly applicable to the conviction of Libby, but was instead offered as illumination upon the pervasive haughtiness of contemporary conservatives, who believe they should rightfully be held to a differing standard of law than the rest of Americans.

Brogan was a real bastard, dishonourably derelict in fulfilling his duty as a Union representative. This isn't because I believe a collectivist entity representing an identifiable employee population has some inherent superiority to the collectivist business entity it negotiates labour contracts with. Brogan had multiple times, taken material reward from the entity to which he was union representative, in exchange for accepting the employer's contract stipulations. This was discovered after the fact, peripherally in a subsequent FBI audit of the employer's financial records. In all but one of these instances, the statute of limitations had expired, and the actions were no longer criminally prosecutable. FBI agents, consciously aware of these facts appeared unexpectedly at Brogan's door and simply asked him if he had taken bribes from the company. His answer was just no, and when informed that his lying to federal investigative officers in the performance of their duty was a prosecutable felony, he simply shut his trap. In addition to the one charge of bribery still within the statute of limitations, Brogan was also charged with felonies for lying to investigators about criminal acts for which the statute of limitations had expired, and that the FBI knew beforehand he had committed. They had in effect, willfully created an environment for facilitating the commission of new felonies from too old to charge past criminal actions.

Brogan appealed and his conviction was upheld in this 5-4 SCTOUS decision, widely cheered by the right-side of the political bipolarity, and no one from that side of the line seemed to have the temerity to stand-up and question the propriety of granting the state a power to circumvent legislated statute of limitations in this manner. Yet turn the tables on contemporary conservatives, and let one of their own get taken down for perjuring himself in a legitimate grand jury investigation, initiated at the request of the CIA into whether one of its covert employees had been unlawfully outed, motivated only from tawdry juvenile spite, and the lamentations, garment rending, hair pulling and teeth gnashing began in earnest.

I'm sure many of the VC readership will pass me off with ad hominem derogations of my lefty beingness; but I will say what I've said before, knowing full well that few will understand: Looking into the miasma of contemporary conservationism it has become a herculean feat to discern just one who is capable of projecting even a faded spectre of Senator Barry Morris Goldwater.
3.25.2009 2:23am
Adam J:
Kazinski- "But you can certainly contractually obligate yourself to making a future donation of an asset while still retaining title." How? Wouldn't a promise to make a future donation lack consideration?
3.25.2009 2:53am
Adam J:
a knight- You don't think Libby knew Plame was undercover? I think it's pretty probable... that's not to say proving in a court that Libby knew this beyond a reasonable doubt was likely. I've heard it said that's why Fitzgerald declined to prosecute... which is pretty understandable, no savvy US attorney is gonna bring a case against a white house aide without anything less then an open and shut case.
3.25.2009 3:03am
David Walser:
The only charge that could possibly have been hanging over Libby's head if he had simply done the honourable thing, and testified truthfully...
Two aspects of the Libby trial have always bothered me: First is the oft' repeated wisdom that Libby wouldn't have been in trouble "if he'd just told the truth." This dismisses Libby's actual defense of his actions -- that what he told investigators and the Grand Jury was consistent with what believed to be true at the time he said it. The advice to "simply tell the truth" is useless to a person whose memory is playing him false. If someone believes "x" is true, when in fact "x" is false, telling them to tell the truth is of no avail. He or she will simply say "x", believing they are doing exactly as you instructed.

Second is the fact the judge prevented Libby from presenting expert testimony in support of his claim that his inaccurate statements were due to memory error. The judge ruled the expert testimony inadmissible because it covered a topic, memory lapses, with which the members of the jury were intimately familiar by virtue of there everyday life. This ruling seems to ignore that the expert was not going to testify just about the types of memory failure to which we are all subject but to the fact that most members of the public dramatically overestimate the reliability of their own and others' memory. In other words, the expert was going to show that the jury members' everyday experience did NOT equip them to judge whether Libby's claims of memory failure were accurate or not.

Did Libby intentionally mislead investigators? I don't know. I do find his claim of memory failure plausible. Were it not for three experiences I had at the time of the Plame controversy (both pre-trial and during the trial), I would most likely be counted among the crowd tisking "He should have just told the truth."

The first of these experiences relates to a series of conversations I had with another member of my firm. I'm a tax professional and, in that context, was asked to review a trust document. After reviewing the document, I discussed it at length with my peer. About two weeks after that conversation, my peer asked me a follow up question by showing me a copy of the trust document and pointing to one of its provisions. I swore that I had never seen the document in my life and that we had never discussed it before. My peer was quite perplexed and assured me we had discussed the document -- over lunch! I was certain he was wrong and would still be of that opinion had I not found my review copy -- complete with my notes in the margins. Even with the help of those margin notes, in my handwriting, I still have no recollection of reviewing the document or discussing it. It's as if someone else wrote those comments.

The second experience concerns my recounting a funny experience I'd had at a business dinner. In my tellingy, my wife and I had gone to dinner with a group of other professionals and their spouses. I told the story, in the presence of my wife, to my sister and her husband. My wife said she'd never attended such a dinner. I assured her she had and even reminded her of a clever and witty remark she had made. At that point, my sister spoke up. She had attended the dinner in my wife's absence. It had been my sister, not my wife, who'd made the witty remark. Again, despite all the evidence to the contrary, my memory is still of my wife attending the dinner. Somehow my memory has put the words of my sister into my wife's mouth.

Third, I was asked to appear before a Grand Jury as a witness. A law firm had approached one of my clients about a tax strategy the government considered fraudulent. My client, on my advice, had not pursued the transaction; and I was there to explain why we had advised against the deal. In preparing for my time before the Grand Jury, I had the privilege of being questioned by members of the prosecutor's staff for a couple of days. Towards the end of the 1st day of questioning, I was asked about an entirely different transaction entered into by an entirely different client who was assisted by this same law firm. I was shown a copy of a tax opinion from the law firm addressed to my client and asked if I had ever read it. I confidently answered that I had and, in response to further questions, declared that I'd seen the opinion in draft form and had helped ensure the factual representations in the opinion were accurate. I was then asked to read certain of those factual representations and tell them whether or not I thought they were accurate. It was if I had never seen them before in my life! Some of the factual representations were, to my mind, total fabrications and misrepresented what had happened. My attorney asked permission for us to consult in the hall. He told me to quit talking out of both sides of my mouth and to just tell the truth. I told him I was telling the truth!

Except, I wasn't. That night, I reviewed my files and found a note I had written. At the last moment, the law firm had refused to allow me to see the draft and the final version of the opinion. They released it to the client only on condition I not be allowed to see it. I had been furious. My anger indelibly seared the events into my memory. Yet, a few years later, under questioning from law enforcement officers, I gave false and misleading answers to questions about those events. Were it not for my file note, I would not have been able to correct my honest errors the next day.

Despite these three experiences, I'm known as someone with an exceptionally fine memory. Were it not for outside evidences, I'd still believe I had read something I had not read, that I had not read something I had read, and that I had witnessed my wife say something someone else had said. In each case, I was absolutely certain my memory was correct and I would have bet my life on the accuracy of my recollection. Had it not been for these events happening around the time of the Libby trial, I'd probably not remember these memory lapses today. As a consequence, I'd be more than willing to convict someone of perjury when their testimony is clearly contradicted by outside evidences.
3.25.2009 5:36am
DeezRightWingNutz:
kazinkski said:


But you can certainly contractually obligate yourself to making a future donation of an asset while still retaining title.


IANAL, so this may be dumb, but I thought there had to be consideration received to have a contractual obligation? What's the consideration received for promising to give something to charity?

When I make a pledge to United Way at work, when they send me a reminder to actually give them the money, I assume I'm not obligated to do so.
3.25.2009 6:17am
Moneyrunner43 (www):
David Walser,

That was very interesting. I am of the opinion that Libby got a raw deal. His was the reverse OJ jury and a grandstanding prosecutor. His career and reputation are destroyed so I don't imagine that he will appeal, but would the judge's denial of his memory witness be grounds for an appeal?
3.25.2009 8:15am
Richard Aubrey (mail):
How do we know Libby knew?
We have some recollections by others, unsupported by hard evidence.
Dueling recollections.
Fitz decided which of the recollections he was going to pursue as wrong...based on what?
Anyway, considering the drooling anticipation with which the entire thing was opened, you have to be satisfied with a minor figure getting hammered for a lapse in memory.
Well, you do the best you can with what you have.
Enjoy.
3.25.2009 8:28am
Anderson (mail):
This dismisses Libby's actual defense of his actions -- that what he told investigators and the Grand Jury was consistent with what believed to be true at the time he said it.

Yes, and Gonzales's actual defense of *his* actions was that he didn't recall.

Few found that credible, and a jury didn't find Libby credible. Commenters tend to leave out that "jury" detail, as if Patrick Fitzgerald were the finder of fact.

I was faintly surprised that Libby was convicted, given the he-said/he-said quality of some of the evidence, so I would surmise that the jury didn't find his defense credible. They were in the courtroom; I wasn't.
3.25.2009 9:48am
cboldt (mail):
-- I was faintly surprised that Libby was convicted ... --
.
The way I see it, the jury had a grasp of the gravamen of the charge; while the general public did not.
.
The jury did not believe Libby's story to investigators, that Libby had no recollection of contact with the CIA regarding whether or not Wilson's wife worked there.
.
Characterizing the totality of the charge as resting on a "he-said / she-said" as between Libby and reporters is a sharp (i.e., false, but well-thought and effective) distraction.
3.25.2009 10:04am
Armyvet_lawyer (mail):
DeezRightWingNutz: Good question. Gifts don't require consideration. The contract to make a gift is nevertheless enforceable.
3.25.2009 10:27am
Richard Aubrey (mail):
Yeah. Libby was one of the four who knew--so it is said--and the only one prosecuted for anything. Which had nothing to do with the original foofaraw.
Boy, what a comedown for the frogmarchers.
So now you pretend he was some kind of important in the whole scheme, so you won't be disappointed you got zilch.
Probably isn't as much fun as you pretend.
3.25.2009 10:43am
Oren:

The advice to "simply tell the truth" is useless to a person whose memory is playing him false. If someone believes "x" is true, when in fact "x" is false, telling them to tell the truth is of no avail. He or she will simply say "x", believing they are doing exactly as you instructed.

If you are unsure, say that you are unsure. There is no crime in not being able to remember with certitude what happened.
3.25.2009 10:51am
Ken Arromdee:
If you are unsure, say that you are unsure. There is no crime in not being able to remember with certitude what happened.

This is about an incorrect memory, not about being unsure. The person with the bad memory thinks he's sure.
3.25.2009 11:05am
Adam J:
Richard Aubrey- "We have some recollections by others, unsupported by hard evidence. Dueling recollections." Not that I really want to open up this can of worms again, I'd at least suggest you give specific criticism, not vague statements of how Libby was railroaded. Particularly when so much of your vague statements are wrong. We have hard evidence that Libby said to a jury that he did not leak Plame. We have hard evidence that Libby did in fact leak Plame (Miller's notebook re this meeting). The only thing we don't have hard evidence for... nor will we ever, is that Libby knew he was incorrect when he said that he did not leak . If hard evidence is required here, then we might as well remove perjury from the lawbooks- because incredible rare are the occasions where an (apparently incredibly stupid) individual creates hard evidence that shows he knew he was lying before a grand jury.
3.25.2009 11:16am
devil's advocate (mail):
David Walser,

thank you for vivid and detailed recitation of the type of memory trap most of us have fallen into at one time or another.

Sometimes I think memory triggers are wonderful because I can watch a movie again 3 years later and go through about half of it before I remember the denouement.

So I think that is not meant to reflect on the plausibility and not the probability of Libby's defense.

More importantly it reflects on whether there is such a thing as a perjury trap.

a knight

Now I haven't read Brogan in its entirety, but it appears Scalia was focused on whether the "exculpatory no" falls under the truthfulness to officials required by 18 USC 1001, not on the pattern of conduct attendant to asking the question.

I don't think it can be taken for granted that Scalias typically acerbic finding on the question is not narrowly focused on that question. I tend to agree that the pattern of enforcement problems are an issue unto themselves.

It certainly does seem that the government officials to whom Brogan was required to be honest were abusing their authority.

If one assumes the duty to be honest has to do with governmental efficiency and effectiveness, if you lie about what happened then the concern is that government officials spend a whole lot of time and effort based on false assumptions. But in the Brogan case, they already seemed to know what had happened. It was largely in the past to the extent of beyond the statute of limitations.

That does seem an abuse of process to me.

I'm less convinced one way or another about Libby's case in terms of the setup, whether it should be seen as a trap, and even if it were, was it an abuse of process.

But I do think it possible to with Scalia on the narrow question and against the outcome of Brogan based on the entirety of the circumstances.

Brian

PS - I think you're reaching regarding the documents on the Federalist Society website. That particular document was not indivdually excised, rather the archives don't go back that far any more. Depending on the format and how they maintained them and the migration of websites and so forth, the notion that they got rid of 2 or 3 years of archiving in 2006 or so to hide one paragraph of a longer essay on casenotes is strictly the stuff of vast right wing conspiracies. I'm a card carrying member, and you are really stretching it.

Fed-Soc has such a vast repository of material a good part of which is not complimentary to but is challenging to their central tenets and general right leanings sentiment. They are simply not in the habit of taking down bits and pieces of their site according to some ideological filter, so while I appreciate your raising the question of the goose and gander problems vis-a-vis Brogan and Libby, I think you are way offbase in the implication you draw regarding the Fed-Soc website.

Brian
3.25.2009 11:26am
Richard Aubrey (mail):
Adam J.
We know Miller's notebook is correct because....
3.25.2009 11:50am
Roger Schlafly (www):
Adam J, Libby was not prosecuted for saying that he did not leak Plame's name. He was prosecuted for saying that Russert mentioned Plame to him on the phone.
3.25.2009 11:58am
Anderson (mail):
Characterizing the totality of the charge as resting on a "he-said / she-said" as between Libby and reporters is a sharp (i.e., false, but well-thought and effective) distraction.

That is why I said *some* of the evidence had that quality.

My faint surprise was that the jury did what I thought was the right thing. While I have no suggestions for replacing the jury system, I do not expect juries to always get a case right. I also worried that sympathy for Libby as a "fall guy" might affect them. Interviews confirmed their sympathy, but the jury quite properly disregarded it.
3.25.2009 11:58am
Adam J:
Seriously? Because she's credible... actually she's incredibly credible. She spent several months in prison protecting Libby, and only revealed him as her source &her notebook after receiving Libby's explicit permission. Are you suggesting after all that time protecting him that she did a complete aboutface &lied to have him convicted? Outside a signed confession or an actual recording of the conversation, that evidence is as hard as it gets. Trying to question that evidence just shows how ridiculous your position is.
3.25.2009 11:59am
Oren:


If you are unsure, say that you are unsure. There is no crime in not being able to remember with certitude what happened.

This is about an incorrect memory, not about being unsure. The person with the bad memory thinks he's sure.

Then truly perjury has no meaning if convincing yourself of the truth of your testimony is defense.


We know Miller's notebook is correct because....

We don't know anything of the sort -- we present both Miller's testimony and Libby's to a jury which makes a finding on the totality of the evidence.
3.25.2009 12:02pm
M. Gross (mail):
What, Oren?

Perjury requires motive, something someone who is incorrectly remembering lacks.

That you genuinely believed you were telling the truth is a defense to perjury, provided of course, the jury believes you.
3.25.2009 12:25pm
Oren:
My comment wasn't not that one can be convicted of perjury for testimony genuinely believe to be true.

It's about not having enough grasp over your own faculties to discriminate between things you might be mistaken of and things that you are certain of.
3.25.2009 12:35pm
Mark S. Devenow Esq. (mail):
a knight:
Your allusion in your initial post last night to the Scalia opinion in Brogan is an attempt to game and thereof twist the analysis of the "perjury trap" by slyly importing case law which has nothing to do with what is prosecutable as perjury (Brogan involving a prosecution under the federal "Official Statements" act). This to the end of declaiming some kind hypocrisy on the part of legal conservatives. Later on, presumably in the knowledge that this piece of casuistry will be recognized or be brought to light for what it is, you reverse course and attempt to make a virtue out of the admission (as if initially attempting this little trick only shows cleverness and nobility for having eschewed cleverness).

If there Dantean circles in hell for liberal hypocrites (I qualify using the word "liberal" only to use redundancy, avoiding pleonism, for pronounced effect) you, sir, will surely be bunked alongside Keith Olbermann. The only significant difference between the two of you where it comes to hypocrisy is that Olbermann is a complete idiot.
3.25.2009 12:42pm
zuch (mail) (www):
blog fiend:
"near perjury"

???
Yes. Like "lacking one or more essential elements of the crime [see, e.g., Gaudin]."

Cheers,
3.25.2009 12:56pm
Roger Schlafly (www):
[Adam J] Because she's credible... actually she's incredibly credible. She spent several months in prison ...

[Oren] we present both Miller's testimony and Libby's to a jury which makes a finding on the totality of the evidence.
Libby was acquitted on the charge of lying to Miller. There were inconsistencies in Miller's story.

If you want to accept the jury's verdict as the last word on the subject, then please refer to the jury's actual verdict.
3.25.2009 1:04pm
Dilan Esper (mail) (www):
Folks, if Scooter Libby and Bill Clinton were just ordinary citizens and not prominent members of major political parties, nobody would bother to make implausible, highly technical arguments that their lies didn't actually constitute perjury.

In both cases, they needed to tell the truth. That is Painter's point, and it is absolutely true. Libby didn't tell the truth because he never believed that the reporters would be forced to reveal their sources. Clinton didn't tell the truth because he didn't realize that Lewinsky would have proof of the affair. And both of them should have just fessed up and let the chips fall where they may.

That's the reality. Occam's Razor is important here-- the simplest, most plausible, most common sense explanation is the best one. All of these arguments about memory loss and materiality are simply fig leaves for partisanship and an unwillingness to admit that someone on "my side" did something really bad.
3.25.2009 1:16pm
zippypinhead:
I regret that we did not include in White House ethics lectures a warning "do not lie under oath" but such should be self evident, particularly after the previous President nearly lost his job over perjury or near perjury on a relatively minor matter.
After a few beers I have sometimes voiced the opinion that all Federal political appointees need to have the following Washington truism tatooed in reverse on their foreheads, so they can see it in the mirror when the wake up every morning: "It's not the crime that will get you, it's the cover-up..."

well, maybe not tatoos. Would take too long to do all the political appointees. Perhaps use a branding iron -- not only faster and more efficient, but branding every politico in D.C. sounds like a LOT of fun!
3.25.2009 1:24pm
Adam J:
Roger Schlafly - "Libby was acquitted on the charge of lying to Miller." Now we are making up charges for Libby to have been acquitted of? There was no charge for lying to Miller... it's not illegal to lie to reporters. The false statement charge that he was acquitted of had nothing to do with the statements he made to Miller, they had to do with him lying to investigators about what he said to an entirely different reporter (Matthew Cooper). Maybe you should refer to the actual verdict, so you don't even know what the charge he was acquitted of was.
3.25.2009 2:20pm
anotherpsychdoc (mail):
Andrea Mitchell said, prior to Libby's indictment, that 'everybody knew that Plame was at CIA.' Since Ms. Mitchell worked with Tim Russert, it is not unreasonable to assume that Mr. Russert knew but this could never be examined at trial. My limited experience with 'secret meetings' has led me to hear things 3 hours after the meeting from people presumably not to be informed about which, were I to be expected to say anything, I might find Libby's remark, 'I heard that too,' to be the most appropriate. Further it was never established that Plame was 'covert;' so it had to be assumed that Libby should and did assume that. As for the jury deciding and 'I wasn't there,' like the O.J. trial the testimony was widely reported and the flippancy with which the jury approached the deliberations, wearing 'I love you' T-shirts as a group, before condemning a man suggested an attitude like taking a box lunch to a lynching.
3.25.2009 2:52pm
Adam J:
anotherpsychdoc- All your points are irrelevant to whether Libby lied, which is why it wasn't presented to the jury. Also what Mitchell said off the cuff is quite irrelevant. If "everyone knew" then Libby's defense should have presented this evidence- perhaps a handful of witnesses (I'd start with Mitchell) to say something to this effect. Also, it could easily have been established that Plame was covert if it was necessary- the CIA released documents re Plame's improvement that pretty decisely prove this. And while I do agree the T-shirts were wierd &lacked a certain amount of decorum, its a long way from invalidating a verdict, particularly for such an open and shut case.
3.25.2009 3:30pm
ParatrooperJJ (mail):
One point to look at is why is it illegal to lie to a federal agent but it is perfectly leagal for them to lie to you?
3.25.2009 4:43pm
anotherpsychdoc (mail):
Robert Novack contacted the CIA re: his article which would 'reveal' Plame as a source of Joe Wilson getting sent to Africa; the CIA did not ask him not to publish. The evidence for her not being covert has been abundantly documented by Tom Maguire on his blog Just One Minute, a good source for the 'counterfactual' argument. The defense asked that Mitchell be called to testify before the jury, but Judge Walton ruled against it.
3.25.2009 6:55pm
Roger Schlafly (www):
Adam J, my statement about the Miller charge was clumsy, but Libby certainly was charged with lying about his conversation with Miller. You can read it yourself in Count 1 of the indictment (PDF). After Miller gave contradictory testimony at the trial, Libby successfully moved to have that charge dismissed. It is fair to say that Libby was acquitted of that charge.
3.25.2009 7:46pm
Roger Schlafly (www):
Libby didn't tell the truth because he never believed that the reporters would be forced to reveal their sources.
Libby was convicted of lying about what Russert told him. Your theory suggests that Libby had something to gain by telling this lie and hoping that Russert would not testify. If so, what?
3.25.2009 9:46pm
Adam J:
Roger- I'm like 99% certain that Libby was found guilty on count one, the only charge I believed he dodged was the ones regarding what he said to Cooper.
3.26.2009 12:35am
Roger Schlafly (www):
From the sentencing papers:
At the close of the government's case, the defense moved to dismiss from the indictment the allegation that Mr. Libby had lied about his July 12 conversation with Ms. Miller, because the evidence did not support this allegation. The government did not oppose this motion, and the Court granted it.
So Libby was found guilty on Count 1, but the Miller charge was dismissed.
3.26.2009 11:33am
Adam J:
Roger- stop mischaracterizing evidence- you've already claimed two pieces of evidence support your position when they do nothing of the sort. All you've shown there is a sentencing memo by Libby. It doesn't even argue for dismissing charges. Also in itself has no authority, it's simply trying to convince the judge that the sentence should be reduced. Furthermore, it has nothing to do with dismissing any charges, it relates to sentencing for the counts that it was found guilty of. It argues that Libby shouldn't have his sentence elevated for underlying charges that weren't brought by the government. I'm starting to reach the conclusion that you are eather a liar or have absolutely no idea what you are talking about.
3.29.2009 1:22pm

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