So it looks like Lewis Libby will be going to jail, possibly pretty soon, for two and a half years.
The jail part is a not a surprise. Vice President Dick Cheney’s former chief of staff was, after all, convicted of perjury and obstruction of justice. Judge Reggie Walton, who presided over Libby’s case, couldn’t just ignore that.
At sentencing this week, Walton also said that he saw no reason why Libby shouldn’t be behind bars sooner rather than later — in other words, that he should begin serving his sentence while his appeal is underway.
Why the hurry? These days it’s often the case that when a defendant is judged no danger to society and no danger to flee the country, he is allowed to remain free on appeal.
Still, the judge seems inclined to put Libby behind bars as soon as possible.
It doesn’t make sense. In this case Libby deserves some leniency, not just because of the circumstances of what he did, but, just as importantly, because of what CIA leak prosecutor Patrick Fitzgerald did.
It’s often remarked by Libby’s defenders that Fitzgerald never charged anyone with an “underlying crime” in the case — that is, he never accused Libby or anyone else of violating the Intelligence Identities Protection Act or the Espionage Act.
But it was more than that. Fitzgerald never proved, or alleged, or presented any evidence in court, that the underlying crime
even occurred.
Because the laws involved are so carefully written, it was entirely possible that CIA employee Valerie Plame Wilson’s identity could have been revealed — a bad thing — without a crime having occurred.
That appears to be what happened in this case.
To show that a crime had been committed, Fitzgerald would have had to show that Libby, or someone else, not only revealed Mrs. Wilson’s identity but did it knowing that she was a covert agent under the definition in the Act.
Fitzgerald never met that standard.
And of course, we know that from the very beginning of his investigation Fitzgerald knew that Libby was not the one who leaked Mrs. Wilson’s identity to columnist Robert Novak.
The guy who did that was Richard Armitage, then the deputy secretary of state who, even after ’fessing up to telling Novak, failed to inform the prosecutor that he also told The Washington Post‘s Bob Woodward about Mrs. Wilson. That came out much later.
But there were no charges for Armitage — prosecutors said he was just gossiping about Mrs. Wilson. It’s never been clear why they didn’t go after him for keeping his conversation with Woodward secret.
Whatever, say pro-Wilson advocates. Libby lied — and that’s a very serious thing.
Maybe he did. But if you went to Libby’s trial every day, you saw a parade of witnesses who had a hard time remembering the same events that Libby had a hard time remembering.
Some of the charges against Libby were so insubstantial as to be laughable, as when journalist Matthew Cooper testified that he, Cooper, brought up Mrs. Wilson in a conversation with Libby and Libby said, “Yeah, I’ve heard that, too.” Libby had told the grand jury he didn’t say it.
That was very, very thin stuff — in fact, one of the two charges involving Cooper was the only one on which the jury acquitted Libby. On the other, he was convicted.
So on the basis of conflicting memories, Libby was found guilty of lying about a crime that may or may not have occurred. And now the judge seems inclined to send him to jail, immediately, for two and a half years.
Fitzgerald says the sentence should be severe because a crime might have occurred. And he says Libby’s lies, if they were that, might have kept him, Fitzgerald, from discovering the crime that might have occurred.
Whatever the case, an appeals court should consider the appropriateness of all this. And while it does, Libby should remain free.
In the end, it might be that the verdict and sentence are upheld. Libby will have no choice but to go to jail.
But the throw-the-book-at-him critics on the left should remember that this case has set some terrible precedents. Just remember how Fitzgerald threatened reporters with jail, blew up pledges of reporter-source confidentiality, and countenanced some leaks while he pursued others.
That was bad enough. There’s no reason to take another wrong turn and rush Libby off to jail.
York is a White House correspondent for National Review. His column appears in The Hill each week. E-mail:
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