A conservative news and views blog.

Location: St. Louis, Missouri, United States

Sunday, October 30, 2005

Loose Libby`s

perjury n. the crime of intentionally lying after being duly sworn (to tell the truth) by a notary public, court clerk or other official. This false statement may be made in testimony in court, administrative hearings, depositions, answers to interrogatories, as well as by signing or acknowledging a written legal document (such as affidavit, declaration under penalty of perjury, deed, license application, tax return) known to contain false information. Although a crime, prosecutions for perjury are rare, because a defendant will argue he/she merely made a mistake or misunderstood.

Scooter Libby is being prosecuted for perjury and obstruction of justice. Prosecuter Fitzgerald has not seen fit to prosecute anyone for the original crime, but is going after Libby for stating under oath that he first learned about the identity of Valerie Plame from the media, and Fitz asserts that he learned it from the Vice President, based on testimony from three journalists. It is, indeed, a crime to commit perjury to a Grand Jury. But what constitutes perjury?

According to the Criminal Resource Manual from the U.S. Department of Justice:

The false statement must be material to the proceedings. A false statement is material if it has "a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed." Kungys v. United States, 485 U.S. 759, 770 (1988)(denaturalization proceeding).

So, a statement need not be merely false, but must be an attempt to mislead the investigative body.

The CRM continues:

The government need not prove the legitimacy of the grand jury's investigation which led to the testimony, only the pertinence of the particular testimony to the grand jury's investigation. United States v. Regan, 103 F.3d 1072 (2d Cir. 1997).

Here is where the question of materiality comes into play; according to the indictment Scooter had this conversation with Vice President Cheney after the disclosure, not before. There is a huge question of motive; What reason would Libby have for lying? Further, Fitzgerald will have to prove Libby intentionally lied. Since juries decide materiality, I suspect the Prosecutors will have their work cut out for them. (That`s why they have been trying to plea bargain this case.)

If you all remember, Clinton defenders tried to dismiss the accusations of perjury on the grounds of materiality (lying about an affair with an underling not material to a sexual harassment suit?)

Furthermore, Fitzgerald lied during his press conference about the nature of the crime; he continually stated that this endangered the SECURITY of the United States. None of the charges are about the original mandate, and the charges against Libby have NO national security implications.

Who has committed the crimes here? Perhaps the Special Prosecuter should look at his own office.

According to the Cornell University Law Manual;

(2) Secrecy.

(A) No obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B).

(B) Unless these rules provide otherwise, the following persons must not disclose a matter occurring before the grand jury:

(i) a grand juror;

(ii) an interpreter;

(iii) a court reporter;

(iv) an operator of a recording device;

(v) a person who transcribes recorded testimony;

(vi) an attorney for the government; or

(vii) a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii).

That includes you, Patrick Fitzgerald! Your office began leaking before the indictments. Perhaps you should investigate yourself.



Blogger Esther said...

Once again, Tim, you make some great points. Very interesting.

6:00 PM  

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