Arnold G. York
Scooter goes down for the count
They got him. They convicted Lewis “Scooter” Libby on several counts, including lying to the FBI and the grand jury, and for obstruction of justice.
Since the verdict had to be unanimous, justice must have been done. Right?
Well, I’m not so sure, although the trial is still not completely over, as I’ll explain.
First, I have to give my disclaimer. I spent 10 years as a criminal defense attorney, both federal and state. I hated defending anyone in federal court. The prosecutors seemed to have fewer cases and unlimited trial budgets, and the sentences were very long. I’ve seen the resources of the federal government lined up against a client. If they want your client badly enough, the gloves come off. I suspect that during my time as a defense attorney, my phone might have been tapped and the IRS was going through my tax returns. They’d grant immunity or light sentences to some very sleazy characters if it would get them whoever they were after. And clearly they were after old Scooter.
Also, I must confess that Dick Cheney in not my favorite guy and Scooter was pretty clearly his hatchet man. So, why am I feeling sympathetic for old Scooter?
First and foremost, he appears to me to be the fall guy (the jurors in the case have also expressed the same thought). And it’s always bothered me that someone becomes the designated felon in a situation where there is an entire cast of characters from which they could have picked.
If there was a conspiracy of any sort it must certainly didn’t begin with Scooter. It most probably came from his boss, Cheney, who is the guy, I believe, who should have been on trial.
Here’s a bit of an inside look at how the criminal justice system really works.
The federal prosecutor subpoenas someone to appear before the grand jury and unless that person takes the Fifth, the prosecutor has free reign to ask him anything he’d like. This can go on for hours, which was the case with old Scooter. Any experienced trial lawyer knows that after a few hours of cross examination, without a defense lawyer present, you can pretty much have any witness, and I do mean any witness, speaking in tongues, particularly if he’s trying to protect someone.
Even outside the grand jury room it’s a crime to lie to a federal officer when you’re being questioned, even though you’re not under oath. On the other hand, it’s not a crime for a federal officer to lie to the person they’re questioning; in fact, they take seminars on how to interrogate suspects, and misrepresentation or making threats is not exactly unknown.
This could easily be avoided if interviews with suspects were recorded, but they never are, or at least prosecutors claim they’re never recorded. Typically, the interviewer takes handwritten notes, which avoids embarrassing cross examination by defense attorneys and allows the questioner to give whatever inflection to the statements he can, without the jury actually hearing the defendant in his own words. I’ve actually had an actor get on the stand and read a supposed confession with an entirely different inflection and emphasis, and it’s astounding how the same words sound very different from different mouths.
Now Scooter didn’t take the stand. He’s not required to take the stand; however, juries are always very suspect of defendants who don’t take the stand. So not taking the stand was a risk, particularly in a case like this. Typically, as a defense attorney you don’t want your client on the stand if the prosecution case is weak (which, apparently, was not the situation here) or if your client is stupid, which certainly wasn’t the case with Scooter. So why didn’t he testify? One explanation is that the prosecutor had him in so many contradictions that they might have chewed him up on cross-examination. It was strictly a tactical decision by his lawyers. Another more cynical explanation is that if he testified he would have had to say all sorts of things about his conversations with Cheney, and perhaps with higher persons in office, and that might have dragged in the vice president and perhaps the president. But so what? If I were facing years in jail like Scooter, would I be prepared to throw myself onto a knife for Cheney or Bush? Personally, I wouldn’t, but then I’m not Scooter. On the other hand, maybe there was a deal and Scooter was promised a presidential pardon at the end of Bush’s term. If so, was that a crime?
As I alluded to earlier, there is a last act yet to be played out. In the trial of the Watergate burglars of the Nixon administration, the judge gave the defendants long sentences but then left the door open to shorter sentences if the defendants talked about the others involved. Ultimately, Howard Hunt decided to save himself and Watergate broke wide open. Will that happen in this case? That may depend on circumstances about which we can only guess and the extent to which Scooter trusts the others-if, in fact, there is a deal.
Only time will tell.