The Aftermath of the Scooter Libby Guilty Verdict:
Reviewing the Jury's Behavior, the Correctness of the Verdict, and the Likely Presidential Pardon

By SCOTT MOSS

Thursday, Mar. 15, 2007

I. Lewis "Scooter" Libby, while serving as Vice-President Dick Cheney's Chief of Staff, lied under oath to obstruct a national security investigation, we've been told by the jury that convicted him for perjury and obstruction of justice. In this column, I'll discuss four of the key questions the verdict raises: Was the jury's verdict right? Did the jury's odd behavior call its judgment into question? Will President Bush pardon Libby? Finally, should Libby be pardoned?

Was the Jury's Verdict the Right One?

It's hard to second-guess most jury verdicts unless you've sat in the courtroom for the entire trial, personally heard all the witnesses testify (and just as importantly, get cross-examined), heard the lawyers' opening and closing statements sum up the complex web of events and testimony, and heard exactly what the judge told the jury (in the jury instructions and in other remarks). Very few folks other than the jurors actually did that, and while we all can read detailed accounts of the trial, that's not the same. (After all, do you think Oscar voters watch the movies or just read the screenplays and some movie reviews, figuring that's about the same thing?)

From our vantage point outside the courtroom, we can spot only the most egregiously wrong verdicts - and the Libby verdict doesn't seem so far off-base that we can confidently say that a jury seeing the case firsthand should've ruled differently. Despite the length of the trial and of the jury deliberations, this was at heart a simple matter: Was Libby lying (illegal) or simply mistaken (not illegal) when he told investigators that he'd heard certain information from a journalist on a particular date, even though there was strong evidence he'd been telling that same information to others before that date? Given the parade of witnesses for the government, it doesn't seem unreasonable for the jury to have concluded, "We think he was lying, not mistaken, and we don't have any reasonable doubt about that."

Did the Jury's odd behavior call the Validity of Its Judgment into Question?

Even if we can't usually question jury verdicts, did this jury, in particular, display enough odd behavior to justify skepticism as to the validity of its verdict?

The jury's antics ranged from the purely weird (they wore matching Valentine's Day shirts and recited an ode to Judge Walton) to the legally weird, such as their repeatedly submitting confusing questions for the judge. The jury's critics were merciless.

One question the jury submitted to the judge asked about the precise definition of "reasonable doubt": "Is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt?" The National Review's Byron York responded with derision: "'It's really a very commonsense concept,' says NRO's [National Review Online's] Andy McCarthy, a former federal prosecutor who served with Patrick Fitzgerald in New York. 'If you're down to parsing it, it's almost like you're dealing with a jury that is asking why is the sky blue.'" When the jury later withdrew that very question, the often insightful but always snarky Slate.com paraphrased the jury as saying "Never mind."

The jury also drew mockery when it seemed intent on hoarding large quantities of office supplies: "They wanted a large flip chart, masking tape, Post-it notes and a document with pictures of the witnesses," MSNBC.com reported. "Who knows, maybe they are making early Happy Easter cards," one blogger commented.

Even the sheer number of days the jury took drew criticism: "[T]hey have lost sight of the question before them," York (again) complained. "Other juries have settled far more complex cases in less time."

While the crack about "Happy Easter cards" was funny, the rest of the criticisms were cheap shots seeking to make a point, or pursue a punch line, at the expense of more serious thought. Contrary to the skeptics, color me impressed with, not disdainful of, the Scooter Libby jury, which struck me as taking its job very seriously.

Sure, the jury was confused at times, but the path to the truth often starts with confusing struggles with complexities. Also, a good part of this jury's - and many other juries' - troubles are not their own fault: They are the fault of the legal system's oddly utopian fiction that jurors, untrained in law and often entirely uneducated, easily can remember vast quantities of evidence and understand complex legal instructions without the sort of detailed, computerized notes that judges and lawyers typically need to keep their facts and law straight. Even my more able law students commonly have questions for me after class - some of them difficult for me to understand, but understandable for a novice to ask.

Fortunately, Judge Walton seemed to do a better job of guiding this jury than some other judges do. Some judges won't even give the jurors the jury instructions in written form, instead bizarrely insisting that jurors - who aren't trained in law - must understand complicated explanations of legal rules just by hearing them ("This is what reasonable doubt means… These are the five elements of crime XYZ…"). Those judges may well get faster jury decisions - discussions are short among jurors with no idea what's going on - but they also predictably will get bad jury decisions.

At law professors' conferences, I've learned about the varied learning styles different people prefer: Some learn by listening, while others learn by reading, discussing, or physical demonstrations. Especially in a case with a complex web of conversations, disputed interpretations of events, and multiple credibility determinations, it's entirely proper for a jury to undertake extensive discussion and create their own lists, marked-up documents, etc., before reaching a unanimous conclusion.

In sum, this jury's diligence and inquisitiveness evidenced the kind of active learning and processing of information that, frankly, we probably see far too little of, from most juries.

Will Libby be Pardoned?

Bush's post-verdict expression of sympathy for Libby and his family seemed like a standard cliché, but think about it: Bush is expressing sympathy for a convicted criminal - not, say, for someone who died a tragic death.

Moreover, this display of empathy for a convicted criminal was especially striking coming from President Bush. As Governor, Bush engaged in what one nun called "cruel mimicry of [a] woman whose death he had authorized": Parodying the clemency plea of Karla Faye tucker, Bush whimpered, his lips pursed in mock desperation, "Please, please, don't kill me." With President Bush not normally given to public displays of empathy for convicted criminals, his pro-Scooter statement is a noteworthy glimpse into his thoughts.

In short, Bush clearly doesn't like the Libby conviction. In addition, we know Cheney doesn't either - and neither does the Republican establishment, which funded a multi-million dollar "Scooter Libby Legal Defense Fund." Finally, and just as importantly, we know this Administration, whether one likes it or not, will take unpopular actions when it feels strongly about something. All this powerfully militates in favor of predicting a presidential pardon for Libby.

At least since President Ford tanked his re-election with his pardon of President Nixon, most politically unpopular pardons (and the public rejects this one by a 70-18 margin in a recent poll) come at the very end of a presidency. So if you're Scooter Libby's cellmate in late 2008 and he owes you some cigarettes, make sure he pays up before January, 20, 2009 - President Bush's last day in office, and the day you can bet Libby will be issued his "Get Out of Jail Free" card.

Should Libby be Pardoned?

We can be fairly sure, then, that Libby will be pardoned, but should he be? Much of the right is so arguing, and - surprisingly - so are some non-righties.

From the right, William Kristol - not only a columnist and pundit, but, as Chief of Staff to Vice-President Dan Quayle, a predecessor of Libby! - penned an ode to the need for leniency when too-harsh criminal laws demand unjustly long sentences. Forgive me for questioning the sincerity of this epiphany that criminal convictions can be harsh medicine: This is perhaps the first time we've seen predictable conservatives like Kristol or the Weekly Standard editors arguing for sympathy for a convicted criminal, and I'd bet that it's a one-time-only display of sympathy; I doubt that anytime soon we'll see the pages of the Weekly Standard featuring Kristol's pleas for leniency for folks facing truly excessively harsh sentences, like first-time drug users.

From the left - or at least from the contrarian center - Michael Kinsley in Time takes the view that it makes little sense for Libby to go to prison given that he was lying only to conceal journalistic anonymity, which may in itself have social value, and given that the Bush Administration has lied about worse things, and Libby shouldn't be a fall guy. There's a point at which this sort of contrarianism becomes too clever by half, however. Does Kinsley really think we should craft a perjury exemption for "lies that help journalists get sources," "lies that aren't as bad as some other lies," and "lies that aren't committed by the guy at the top"? As to the last two categories, we'd have to let an awful lot of mid-level mafia capos go free if the argument "I'm not as bad as the guy running the operation" were sufficient to justify a pardon.

But the biggest objection to a pardon, to me, is the need for accountability. The same Constitution that authorizes pardons has a more fundamental purpose: separation of powers. The way not the Constitution protects us against tyrannical government is not just by requiring democratic elections - after all, elected governments could be tyrannical - but also by requiring that the president, Congress, and the federal judiciary must each be able to "check" and "balance" the other branches, to assure that no one branch has total free rein.

In a system of separation of powers, the last crime we should pardon is a conviction of an Executive official for committing a crime to protect a higher Executive official. If the President pardons those who commit crimes to protect him (or, here, to protect his Vice-President), then the President is immune from any laws passed by Congress or any judicial proceedings. Executive officials can ignore any law, investigation, subpoena, or judicial ruling, without fear of consequences, because any ensuing conviction (for contempt, obstruction, and so on) can be pardoned.

In sum, there simply are no checks or balances on an Executive who pardons Executive subordinates who commit crimes to protect the Executive. I suppose impeachment remains one remaining check and balance, but that isn't much of a control on the Executive, as illustrated by the failed-and-then-backfired Clinton impeachment, and the 130 years preceding the Clinton impeachment in which not a single President actually got impeached.

Sure, pardoning Libby wouldn't assure that all Executive employees would get pardons for crimes protecting the boss. But a pardon certainly would diminish the deterrent effect of criminal law on Executive officials. Along with the Scooter Libby Legal Defense Fund, it would send a clear message to the next Scooter Libby: If you commit a crime to protect this administration, we'll protect you. The clearer that message is, the less we actually have any checks or balances on the Executive, and the more we have an imperial presidency not accountable to the same laws that apply to everyone else.

In short, a pardon is likely but troubling -- not just as an instance of cronyism, but also as a serious threat to our constitutional system of government. Whatever one thinks of the conviction, the fate of Scooter Libby alone isn't worth putting all that at risk.


Scott Moss is a professor at Marquette University Law School.

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