Scooter Libby Found Guilty on 4 of 5 Counts

Scooter Libby has been found guilty, report AP’s Michael Sniffen and Matt Apuzzo.

Former White House aide I. Lewis “Scooter” Libby was convicted Tuesday of obstruction, perjury and lying to the FBI in an investigation into the leak of a CIA operative’s identity.

Libby, the former chief of staff to Vice President Dick Cheney, was accused of lying and obstructing the investigation into the 2003 leak of CIA operative Valerie Plame’s identity to reporters.

He was acquitted of one count of lying to the FBI.

Despite a jury pool that was ideologically stacked against him, I though Libby had a legitimate chance of getting acquitted on either the so-called “memory defense” or through jury nullification on the basis that he was charged with lying about a non-crime.

After watching the trial live during the first week of the prosecution’s case, it looked like Team Libby was way ahead on points. I haven’t paid nearly as much attention since, however, and can’t weigh the remaining evidence, though, for how it may have swayed the jury.

I’ll have more on this once more detailed reports come in. The above blockquote is the entirety of the AP report at the moment.

UPDATE: CNN:

Libby, 56, faces a maximum sentence of 25 years in prison and a fine of $1 million. CNN senior legal analyst Jeffrey Toobin said, “He is virtually certain to go to prison if this conviction is upheld.”

After the verdict was read, Libby was fingerprinted and released on his own recognizance.

Ted Wells, Libby’s defense attorney, said he will file a motion for a new trial, or appeal the conviction if that motion is denied. “We intend to keep fighting to establish his innocence,” Wells said outside the courthouse.

An update to the AP story above adds, “The trial’s outcome may have been a repudiation of the strategy that Libby’s attorneys chose by not calling either Libby or Vice President Cheney, his former boss, as a witness.” That could well be. Indeed, by relying on the “memory defense” in the opening remarks, they implicitly promised the jury they would hear directly from Libby.

UPDATE: PJM has a good roundup of the blog reactions thus far.

I agree with Tim @ Balloon Juice that a pardon will be forthcoming. That’s par for the course for political crimes, after all.

Ian Schwartz has videos of statements from Libby’s attorneys and the reaction of the Wilsons.

Steven Taylor observes, “[G]iven that it is, to this day, unclear as to whether any laws were broken regarding Plame’s status, the whole thing seems like a waste on numerous levels.”

See the Media Bloggers Association Scooter Libby Trial feed for a myriad of reactions.

UPDATE: Intrade Prediction Markets has “now listed a contract on Scooter Libby being pardoned by the end of this year.” Were I a betting man, I would pass on the contract, since I think it unlikely the pardon will happen this year. Between the 2008 election and the end of Bush’s term of office, however, it’ll almost certainly happen.

UPDATE: Michael Demmons passes on some preliminary comments from the jurors seen on Drudge Report.

JUROR: WE HAD SYMPATHY FOR LIBBY, HE WAS THE FALL-GUY, WHERE WAS ROVE, WHERE WERE THE OTHERS…? SOME JURORS SAID ‘THIS SUCKS, WE WISH WE WEREN’T JUDGING LIBBY’

Says Michael, “[I]t seems odd to me that a jury would convict a ‘Fall Guy.’ Wouldn’t that be acknowledging that they knew he wasn’t the one who committed a crime, but convicted him anyway???”

Well, maybe they just meant they would have rather had a bigger fish to convict. Libby has been convicted of the crime of lying about his involvement in something that wasn’t a crime and that he wasn’t involved with. Had there been something with which to charge Rove or some other more prominent official, there’s no doubt Fitgerald would have charged them.

Alternatively, perhaps the jurors thought Libby looked a lot like Lee Majors.

UPDATE: Judith Weiss has an interesting roundup of reactions from conservative attorneys. Perhaps most noteworthy is Andrew McCarthy‘s take. He explains why multiple counts are used and how they tend to interact in the minds of juries.

Let’s take a drug case. If the whole case is about a single transaction — say, one cocaine deal that happens in a fleeting instant on a street corner. If that’s all there is, and the government has only witness who said he saw it or participated in it, but it has no other proof (e.g., the drugs, photos, bank records, etc.), that is a flimsy count indeed — although the jury is free to convict if they believe the witness beyond a reasonable doubt. But if there are five counts, one saying the defendant was involved in a drug conspiracy of some duration and four other ones charging individual drug sales within the conspiracy, then it’s not so flimsy anymore. As the saying goes, pieces of evidence are not looked at in isolation; the case is considered as a whole. If you believe there was a drug conspiracy, it becomes a lot more likely that the guy did the individual drug deals, even if the evidence supporting any single one of them is not overwhelming.

That strikes me as reasonable enough. Then again, theoretically at least, the state is obligated to prove each charge beyond reasonable doubt. By indicting on multiple counts, especially ones that are rather confusing and technical, it’s not hard to think that jurors are likely to come away figuring that “well, the guy was probably up to something.” I’m not sure that’s within the spirit of the high burden placed on the state.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. legion says:

    He was acquitted on count 3, the false statement re: Cooper, but convicted on the false statement re: Russert and all others.

    My perception (based only on reading reports from both the left & right, not live watching) was the opposite of yours; I got the impression his defense was just too thin. And lying about a “non-crime” is still a crime. Like it or not, the Clinton impeachment set that standard 🙂

  2. Anderson says:

    Interesting. I always thought the reason Bill Clinton didn’t actually commit perjury was that his lies weren’t material to the supposed case at hand.

    Does that apply equally to Libby?

    The “Armitage did it” theory has been touted as showing that the feds already had the leaker, so Libby’s lies weren’t material.

    I am open to that argument, but it seems that just because Armitage leaked, doesn’t mean that Libby & Cheney couldn’t have been independently trying to leak as well.

  3. Tano says:

    I find your remarks kinda strange.

    First off, do you really have so little confidence in “the people” that you assume that people’s ideology will come into play in determining the guilt of a defendant?

    Secondly – how on earth could anyone find the “memory defense” credible? There was abundant evidence that the WH, at its highest levels, saw the Wilson charge as potentially devastating blow to their credibility. The counterattack was very obviously being run by Cheney, Rove, Libby. The notion that Libby would forget the core elements of that effort were really ludicrous.

    ANd jury nullification? Since when have juries gone to such limits to excuse examples of lying to investigators and to grand juries? And under what moral sensibility is such behavior seen as excusable by virtue that the underlying act was not, in itself, prosecutable?

  4. Anderson says:

    Ah, I crossed with Legion.

    Impeachment is strictly political, not a legal determination, so I don’t think the impeachment set any precedent — taking your remark perhaps a bit more seriously than you intended it ….

  5. Anderson says:

    The last graf of the current AP story, btw, is a reminder why the “memory defense” was doomed:

    Fitzgerald noted that eight witnesses, including an undersecretary of state, two CIA officials, two top Cheney aides, two reporters and former White House press secretary Ari Fleischer said they discussed Wilson’s wife with Libby in a one-month span before Plame’s CIA employment was publicly revealed.

    I mean, come now.

  6. Zelsdorf Ragshaft III says:

    The term being bandied about is that information was leaked. That indicates a secret was revealed. Mrs. Wilson employ was no secret. The only secret in the matter was who sent the Liar Wilson to Niger. Since Fitzgerald knew from the very beginning who “leaked” Valerie PLame’s name to the general public as the one who sent Wilson to Niger. The case should have ended at that point. P. Fitzgerald should be fired and dis bared for malicious prosecution. Libby had no reason to lie, as there was nothing to lie about. He may suffer from a faulty memory. I defy any who post or read these posts to recall a conversation they held with someone over a year ago, verbatim, and be held accountable for the veracity of their memory. It is now time for the President to act. First in the discharge of Fitzgerald and then the pardon of Lewis Libby.

  7. cian says:

    ‘I did not have sexual relations with that woman’ vs. ‘I did not leak a CIA operative’s name to the press’ is no competition in terms of damage to the country. The public understood that then (Clinton’s approval ratings reached 70% during and after his impeachment)and they understand it now (over 60% disapprove of the job Bush is doing).

    Yes Libby will be pardoned, adding another layer of awfulness to the Bush Presidency.

  8. James Joyner says:

    Anderson,

    I saw most of that phase of the trial live. “Discussed” is a bit of an exaggeration. “Mentioned in passing” was more like it. All the official witnesses (except perhaps Fleisher; his testimony took place while I was traveling out of state) made it clear that the issue of “the wife” was something they passed on as a mere curiosity.

    cian: Clinton was lying about a material fact in a sexual harrassment trial that, while I opposed on principle, the Supreme Court ruled 9-0 had to go forward. Neither Libby nor anyone else was ever charged with any illegality with respect to releasing Plame’s name.

  9. Tano says:

    James,

    Could you formalize your opinions here so that I can better understand the principles in operation? Under what precise circumstances, in your opinion, is it morally permissible to lie to a federal investigation or a grand jury?

  10. JohnG says:

    If what that juror said is true, it implies to me that the jury was looking to convict whoever they could get their hands on. They wish they could convict Rove; did the see a lot of evidence that Rove was guilty of something? I didn’t follow the trial closely but somehow I doubt that there were seeing much evidence concerning Rove one way or another.

  11. James Joyner says:

    Under what precise circumstances, in your opinion, is it morally permissible to lie to a federal investigation or a grand jury?

    I haven’t given much thought to the morality of it but legally, there shouldn’t be a charge for lying unless there is actually a charge filed for the matter that was the subject of the investigation to begin with. I thought that of Martha Stewart and I think that of Scooter Libby.

    Overall, I thought it perfectly plausible that Libby was confused on the precise sequence of events as to when he heard about “the wife,” which seemed to indeed be a very trivial part of the overall scramble to push back against charges being made by her husband. Indeed, the early prosecution witnesses were all pretty confused despite having had months to study up.

  12. Anderson says:

    I saw most of that phase of the trial live. “Discussed” is a bit of an exaggeration. “Mentioned in passing” was more like it.

    The jury doesn’t seem to’ve thought it an important distinction …

  13. ken says:

    James, your standard is nonsense and you have it exactly backwards. A charge is not ‘brought’ until the investigation is complete. If someone lies to an investigator, regardless of what they are investigating, the investigator can then bring charges of perjury and obstruction of justice against the liar.

    Your standard would mean that prosecutors would get fewer honest answers when investigating supposed criminal activity.

  14. Tano says:

    ken is right. James’s standard is the dream defense of any group of criminal conspirators (myabe he can get a job as a mob lawyer!).

    Lie to the investigators so as to maximize the probability that no criminal charges can be filed for the underlying action. If this plan is successful, then the perjury is retroactivly justified by virute of the fact that no charges are filed.

    Why do I have this sneaking suspicion that JAmes really doesnt believe this, but has somehow fallen prey to letting partisan considerations cloud his judgement (greatly disappointing some who have come to expect much better from him)?

  15. ken says:

    Senator Reid is demanding that Bush pledge not to pardon Libby.

    Reid wants to let the legal system determine Libby’s punishment. I think most Americans agree with the Democrats on this.

  16. Billy says:

    Clinton was lying about a material fact in a sexual harrassment trial

    That would be true, if the allegation in court was that he sexually harrassed Monica Lewinsky. My understanding is that the trial was not about this (it was about Paula Jones, correct?), and that this was evidence for the purpose of impeaching Clinton’s character (which is NOT material evidence with regard to whether Mr. Clinton sexually harassed Ms. Jones), or even less important, conduct evidencing that similar conduct took place in another situation (evidence that does NOT meet the “relvance” standard, let alone a “materiality” standard).

    So, in other words, while the SCOTUS may have ruled that the trial went on, this said nothing about whether the Clinton-Lewinsky issue was even relevant to the Jones issue. In fact, Mr. Clinton’s lie was no more “material” to the case at bar than were any of Mr. Libby’s lies. A “material fact” is one that has a tendency to prove or disprove any element of the crime – Clinton’s escapades with Ms. Lewinsky demonstrated at best (for Mr. Starr) only that Clinton had a tendency to act in such a way, and his lie about it was ACTUALLY more material to the case than was that which he lied about, in that it showed a current lack of candor and believability.

    The point is that these are legal terms, and if you’re going to bandy them about with definitive conclusions attached thereto you should probably go to law school first, or at least look some of them up on Wikipedia.

  17. Billy says:

    I haven’t given much thought to the morality of it but legally, there shouldn’t be a charge for lying unless there is actually a charge filed for the matter that was the subject of the investigation to begin with.

    Well, maybe there shouldn’t be, but there IS. Ignorance of (or disagreement with) the law isn’t a defense, is it?

    I agree with everyone else with regard to what a ridiculous standard this would be in practice, and I’m no advocate for enhanced prosecutorial powers.

  18. Tano says:

    “it’s not hard to think that jurors are likely to come away figuring that “well, the guy was probably up to something.”

    You are on a roll today, James. Once again, showing quite a bit of contempt for your fellow citizens, and the underlying rationale for our system of jury trials.

    I served on a jury once that had multiple charges. Like the Libby jury, we had no problem sifting through those charges that met the reasonable doubt standard, and those that fell short. And I know that I was not the only one in that room who was able to conclude that one of the charges (a minor one) seemed utterly unfounded and just piling on.

    Our reaction to that was to make us more critical of the other charges (defending against the suspicion that maybe the prosecution was BSing about the whole case), not less critical.

  19. just me says:

    That would be true, if the allegation in court was that he sexually harrassed Monica Lewinsky. My understanding is that the trial was not about this (it was about Paula Jones, correct?), and that this was evidence for the purpose of impeaching Clinton’s character (which is NOT material evidence with regard to whether Mr. Clinton sexually harassed Ms. Jones), or even less important, conduct evidencing that similar conduct took place in another situation (evidence that does NOT meet the “relvance” standard, let alone a “materiality” standard).

    ACtually it was material evidence.

    Civil suits are different from criminal suits, and they actually provide much less protection for the defense than a criminal trial (there is no 5th amendment, you can be compelled to testify in both depositions and in court, and the standard of proof is a lower standard).

    One thing that can be permitted in a civil suit is allegations of other possible prior acts, and sexual harrassment is implied when one person is in a powerful postition compared to the other, and the president definitely outranks an intern.

    The judge ruled that this evidence could be sought.

    Clinton chose to lie about it under oath.

    I don’t think there is much debate over the requirements for Clinton to tell the truth in a deposition in a lawsuit where he is the defendant. I think there may be some legitimate complaints on whether the Jones lawsuit should have been allowed to go forward, but a judge ruled that it could, and Clinton was obligated to tell the truth.

    My issue with Libby isn’t so much whether he lied, but that I haven’t seen much proof of intent, and in the end and from the beginning of the investigation Fitzgerald knew there was no crime.

    Basically at the beginning before he ever called Libby to testify he should have closed shop, and said “look folks, there wasn’t a crime” and gone home. Libby’s situation feels like entrapment-and honestly I have a hard time seeing the proof of intent, it seems like the case was built as much around a bunch of reporters with fairly faulty memories who weren’t charged as with one many who was.

  20. The Angry Left seems rather ludicrously gleeful about the conviction of Scooter Libby to pay for the sins of Bush. For instance, see Harry Reid’s comment about the conviction. I mean, wow, SCOOTER LIBBY has gone down! Assuming, of course, that the request for a new trial is denied, and all the appeals fail, and Bush doesn’t pardon him. While the braying crowd’s calls for sacrifical blood, anyone’s blood, to pay for Bush’s perceived sins are a little disturbing, I have to admit to a little wicked amusement at how out of proportion their celebrations are to the relative value of the scalp they are dancing around if Bush is really as bad as they are always claiming. It all kind of reminds me of Marv in Sin City saying, “Is that all you’ve got?”

  21. Tano says:

    Just me,

    Could you expand a bit? How on earth do you see entrapment?

    And what is so hard to see about intent? Is it not rather clear that the WH would rather have reporters blamed for the leak than have it revealed to be WH retaliation against Wilson?

  22. Anderson says:

    How on earth do you see entrapment?

    They asked him questions he didn’t want to answer truthfully!

  23. just me says:

    Could you expand a bit? How on earth do you see entrapment?

    It isn’t so much legal entrapment, it is more how it comes across, and that is mostly because you have a case where the underlying crime wasn’t really investigated or charged. The leaker was known from the beginning, it was sort of like a special prosecutor out to justify his job rather than closing up shop and saying there is no there, there.

    Also, I will be honest with you, I can buy the faulty memory defense, at least with regards to knowing exactly what was said to whom and where you heard it from first.

    If you asked me about conversations I had at meetings or whatever at work from several months ago, I likely couldn’t tell you exactly who I heard what from or exactly what I told somebody. I might be able to tell you the general idea of some of those meetings, but not exactly who said what.

    I am a secretary for an organization. But if you asked me specific questions about things discussed, I would probably have to look at those minutes to give you the exact details of what was said. Shoot our last meeting was three weeks ago, I could tell you some of the things we talked about, but probably not who said what when.

    I think the other thing that bothers me here is that many of the reporters who testified had faulty memories as well, but they weren’t charged with perjury either.

    This looks more like a prosecutor justifying his position by collecting a scalp, not like justice.

  24. Tano says:

    Oh give it a rest, just me.

    Focus. Wilson basically charged the Bush admin. with lying. Cheney launched a counterattack. They set out to undermine Wilson in any way they could.

    Now if you want to claim that Libby forgot whether he originally learned of Plame from Cheney, or from Rove, then you might have a point.

    But to claim that it is credible that he though maybe he heard it first from the people he was leaking it too, is just downright absurd.

  25. Billy says:

    Civil suits are different from criminal suits, and they actually provide much less protection for the defense than a criminal trial (there is no 5th amendment, you can be compelled to testify in both depositions and in court, and the standard of proof is a lower standard).

    The Federal Rules of Evidence are the Federal Rules of Evidence regardless of whether the case is civil or criminal. Whether or not the judge chose to allow prior acts -for purposes of impeachment- does not bear on their materiality, it merely bears on their relevance. They were still not -material- facts, at least as far as the elements of the charges sought by Ms. Jones in that case were concerned.

    Yes. Clinton chose to lie about them. No one is arguing that. What was said was that they were -material- facts. They were not. As I said before, materiality is a specific legal term, and the claim was raised that Clinton lied about a material fact. This claim was wrong. The claim was also raised that Clinton’s lie was somehow worse than Libby’s lie. This was not only wrong, but asinine and desperate whining.

    The idea that because there was “no crime committed” (other than Libby lying under oath) Libby should be excused EVEN THOUGH he lied under oath is just ridiculous. Trying to distinguish this case from Clinton’s (and furthermore, trying to do so in a way that claims Clinton’s lie about his personal life was somehow worse) is the height of either disingenuity or stupidity.

  26. Meanwhile, William “Cold Cash” Jefferson not only remains a free man and a member of Congress, he’s sitting on the Homeland Security Committee.

    I’m just sayin’.