Friday, October 28, 2005

The Evil that is a Political Prosecution (cont.)

In a recent post, I discussed the "evil that is a political prosecution." In my view, these are dangerous legal/quasi-political animals. They may eat up your political adversary today, but tomorrow they will eat us all up.

So what do I mean by "political prosecution"? First, it is a criminal action. As such, the power of the state is arrayed against the individual defendant. Second, these prosecutions are usually not for, or related to, crimes recognized at common law, such as burglary, sexual assault, murder, etc. In other words, the crimes are created by statute and interestingly are often not readily identifiable as crimes by ordinary people (As an example, ask some guy on the street what is the evil that Tom Delay is accused of doing). Third, political prosecutions occur as a result of a complaint by a political opponent seeking a political advantage via the proceedings.

Tomorrow, Scooter Libby, the VP's Chief of Staff, apparently will be indicted. I agree with Michael Barone that an indictment of either Libby or Karl Rove in the Plame matter would be a "grave injustice".

Let me explain. In '02-'03, certain elements within the CIA were fighting their own war with the White House. This was, in fact, a political war, with the two sides having different views about the desirability of taking out Saddam. In spite of the chain of command and their roles as public servants, however, Democrat Joseph Wilson and his Democrat wife were aiding the CIA forces in rebelling against WH policy. The punch line here in this whole mess is that Joseph Wilson is a lying, political hack who was, in the course of his political dispute with the WH, caught in the act of lying and hacking. Barone writes:
True, Rove and Libby did seek to discredit Joseph Wilson -- as they should well have done. As the Senate Intelligence Committee concluded in a bipartisan report in July 2004, just about everything Wilson said publicly about his trip to Niger was untrue. He said that he had discredited reports that Iraq sought to buy uranium in Niger. But the CIA people to whom he reported concluded that, if anything, he substantiated such reports. He said that he pointed out that certain other intelligence reports were forged. But the forgeries did not appear until eight months after his trip. He said his wife had nothing to do with his trip to Niger. But it was she who recommended him for the trip. And on and on.
So, after Rove and Libby sought to set the record straight, Wilson and his political allies sought to cast these actions as criminal, intimating that Plame's life had been endangered. This is garbage. As Barone points out, for a variety of reasons it has become apparent that an indictment for the crime of "outing" Plame appears untenable. Thus, Libby is apparently to be charged only with his failure to be honest with the grand jury during the special prosecutor's probe.

Let's get some preliminaries out of the way. Should one lie to a grand jury? Of course not. It's wrong and it undermines the investigatory process. End of story. But should one be criminally prosecuted -- and potentially face jail time and the loss of a career -- for it? Well, it depends. Yes, it depends.

If one is lying to cover up a real crime, then yes, in my judgment a perjury/false statement indictment is within a prosecutor's discretion. If, however, one is lying to cover up ... well, something that shouldn't have been investigated in the first place, i.e., the prosecutor has no grounds to pursue an indictment for an underlying crime, then no ... absolutely not.

Perhaps a further, albeit imperfect, illustration is in order. Imagine you are sleeping soundly in your bed and then two guys break in, shine a flash light in your eyes and start questioning you about your whereabouts the night before. Realizing that you were out late at a place/with a person/in a situation where you should not have been, you lie. You lie big. Well, it turns out that there was a murder committed last night. You didn't commit it, but you are charged with making a false statement to a police officer, though. Too bad. And, oh yeah, your angry neighbor told the authorities to check you out. And by the way, your neighbor's friend actually committed the murder. But you committed an offense. Rules is rules. Feel good about that prosecution? You get the picture.

There are so very many things that are technically offenses (maybe this is what Sen. Hutchinson was referring to in her inartful remarks about perjury being a "technicality") but in reality no harm is done to the public, and thus a prosecutor accordingly should not proceed. Indeed, this happens every day. It is called prosecutorial discretion. The rules of ethics governing criminal prosecutors require a prosecutor to seek justice, not simply a conviction.

The bottom line: It is grossly unfair to criminally prosecute some one for "covering up" something that was not, in fact, a crime. This is especially so when such a prosecution is initiated by political enemies of the defendant and no harm has been suffered.

In such a case, the government, instead of representing "the people", really prosecutes "the people".