Scooter Libby: What May Be Going on...

I will not say that this makes anything in the Scooter Libby case clearer. But it does increase the likelihood of one possible scenario:

Glaukon: Why did Pat Fitzgerald charge Scooter Libby with perjury and false statement charges, rather than more substantive violations concerning damage to national security?

Thrasymahkhos: If Libby were charged with substantive violations, then Libby's lawyers would demand to see classified documents as part of preparing his defense, the judge would have no choice but to agree, the White House would cite national security and refuse to turn the documents over, and the judge would dismiss the charges.

Glaukon: Ah.

Thrasymakhos: Charging Libby with substantive violations is--with a White House in cahoots with Libby's defense--a fast way to get the charges dropped.

Aristodemos: Ah. But what about Libby's actual trial? Isn't perjury about private talks between Libby and reporters a "he said, he said" kind of offense that it is impossible to prove beyond a reasonable doubt?

Thrasymakhos: Normally, yes. But look at Fitzgerald's list of people who say that Libby is lying:

1. An Under Secretary of State
2. A senior officer of the Central Intelligence Agency
3. The Vice President of the United States
4. Libby's own notes of his meeting with the Vice President.
5. A briefer from the Central Intelligence Agency.
6. Libby's then-principal deputy.
7. Judith Miller.
8. Tim Russert.
9. The White House Press Secretary.
10. The Counsel to the Vice President.
11. The Assistant to the Vice President for Public Affairs.
12. "White House Officlal A".
13. Matthew Cooper.

Glaukon: Recollections differ. Memories are fallible. People forget. But I cannot see how any conceivable jury could fail to find Libby guilty on the perjury and false statement charges, if the witnesses testify as the indictment suggests they will.

Aristodemos: So what did Libby think he was doing?

Thrasymakhos: There are two possible answers. Answer 1: Libby is certifiable.

Glaukon: Probably true, but even so not sufficient reason for him to do something so stupid as to lie repeatedly to Fitzgerald.

Thrasymakhos: Well how about answer 2: Libby is erecting a perjury firebreak to keep Patrick Fitzgerald from knowing that he, Cheney, Rove, and possibly others knew very well that Valerie Plame Wilson was a covert operative and thought that blowing her cover would be a nice way to warn the CIA not to leak information that contradicted what Cheney and company had said?

Aristodemos: That certainly sounds more plausible.

Thrasymakhos: In a normal case, right now Fitzgerald would be offering Libby the choice between spending a long time in prison or giving up Rove or Cheney or somebody even more interesting.

Glaukon: But what if Libby can't give up anybody more interesting?

Thrasymakhos: That's his tough luck. If Libby cannot sing--if Libby is in fact the prime mover--than Libby has tough luck and spends a long time in prison.

Aristodemos: Is that fair? To be especially harshly punished just because the prosecutor wants to see if he can induce you to give up somebody more interesting?

Thrasymakhos: It's how our legal system works: we don't torture--well, we do torture now--instead of torture we threaten people we think have interesting things to say with long prison terms. It's more humane than crushing their hands.

Glaukon: Am I supposed to like this?

Thrasymakhos: It's running code.

Aristodemos: Oh.

Thrasymakhos: As I was saying, if this were a normal case, then if Libby can't or doesn't want to sing, he spends a long time in prison. If Libby tries to give up Rove or Cheney but just has one-on-one conversations to relate, than once again Libby has tough luck and spends a long time in prison: no prosecutor would think that he can convict on the word of a confessed perjurer without corroborating evidence. Only if Libby wants to sing and can point Fitzgerald to corroborating evidence that gives Fitzgerald a conviction of somebody more interesting would he be able to avoid spending a long time in prison. That's what would be happening now if this were a normal case.

Sokrates: But I expect to hear that this is not a normal case.

Thrasymakhos: Indeed, it is not. In the present circumstances, things are complicated by the existence of the presidential pardon power.

Glaukon: Pardon power?

Thrasymakhos: Fitzgerald can threaten to try to put Libby away for a long time. Cheney can promise Libby a presidential pardon on January 20, 2009. Libby's perjury firebreak protecting Cheney will hold.

Glaukon: But isn't that illegal? For a president to promise he will pardon somebody as long as he keeps his mouth shut?

Thrasymakhos: Article II, §2, clause 1: "Section. 2. Clause 1: The President shall... have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." The president's power to pardon is unreviewable and uncontrollable. But there is a question I want to ask a real lawyer: What kinds of discussions among whom about the exercise of the presidential pardon power rise to the level of conspiracy to obstruct justice?