Thursday, November 03, 2005

With what motive?

The Left trumpets the indictment of Scooter Libby and hails it as the beginning of the overdue bringing-to-justice of the Bush Administration. But something just doesn't make sense here.

Irish Pennants, a blog written by journalist Jack Kelly, discussed the indictment last week in a post entitled "Scooter Libby evidently lied." I read it (HT: RealClearPolitics) over the weekend and was unable to push it out of my mind.

Kelly's big-line, for me anyways, was this: But what Fitzgerald had to say in his news conference about national security being endangered in the Plame Name Game was a crock, and we'd better be prepared to fight back against the criminalization of conservatism.

I believe he's right (see "proxy fight on Iraq war"). But beyond that, I can't get one most-basic of questions out of my head: Why would Libby lie?

Of course with a charge of perjury and making false statements, the assumption is that any false statements given were made knowingly with the intent to deceive. This makes no sense when you consider that there are no indictments--and likely none forthcoming later--on the original focus of the investigation, the "outing" of Valerie Plame.

In accusing Libby of lying, Fitzgerald (it is presumed) knows what Libby's actual true behavior (and assumed also, his intent) in the affair was. How else of course can he say that Libby's testimony was un-true?

If Libby's true behavior is known, and that behavior was illegal vis-a-vis the outing of Plame, it stands to reason there would be indictments along those lines. There are none.

So either Plame didn't fit the bill as a covert agent, and anything Libby told anyone was not a crime, or Libby didn't "out" her by virtue of his conversations with journalists. Either way, there is no crime.

And if there is no crime, there is no motive to lie because there is nothing to protect, nothing to hide. Rich, in his comments to Jack's posting, put it far more eloquently than I:

What were the lies relevant and material to?

If there is no underlying crime, then by definition, the lies could not be relevant or material to an underlying crime.

So what is left? The lies were relevant and material to an investigation of non-criminal conduct?

If so, then any lie is a crime. Lies in these circumstances, although detestable, should not be a crime.

Or were the lies relevant and material to the determination of whether there was an underlying crime. If so, then the potential/possible underlying crime should be identified in the indictment, i.e. the lies were relevant and material to whether or not so and so did such and such.

The indictment did not identify a possible/potential crime. So, does the indictment state a crime on its face? Or is the defendant required to guess the nature of the charge against him.

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