Monday, October 31, 2005

Stuck on Libby, stuck on Libby, stuck on Libby...

In order to establish perjury, the law requires the false statement to be material. The same standard applies to the charge of making false statements. The dictionary defines material as "being both relevant and consequential; crucial: testimony material to the inquiry".

Assuming for the sake of discussion that Libby's testimony was false, the issue then becomes whether those false statements were 'material' to the investigation. And my (admittedly non-legal) opinion is that there are two reasons why Libby's false statements were not material to the investigation.

In order for Libby's 'lies' to be material, then the investigation needs to have been hampered in some way. In other words, a lie that causes no harm is no foul. For example, if Libby had lied about the time of day his conversations with the reporters took place, that would unlikely rise to the materiality standard and Libby would thus not have been charged with perjury for having made that statement.

Reason #1: Libby's 'lies' did not keep the authorities from bringing the 'real criminal' to justice.

Libby's 'lies' did not keep the investigators from finding the 'real criminal' for the simple reason that in the Plame kerfuffle, there is no underlying crime and no 'real criminal'. The investigators were not kept from the real criminal as a result of Libby's false statements, the real criminal wasn't left free to continue his rampage as a result of Libby's false statements, and the grand jury wasn't kept from indicting the real criminal as a result of Libby's false statements. Draw the distinction between this and what happened during the DC sniper attacks, when a man falsely claimed to have witnessed one of the shootings which caused the police to set up roadblocks and quite possibly kept them from going in the right direction. Libby didn't provide an alibi to the real criminal. Libby didn't lie about knowing where the real criminal was hiding.

Reason #2: Libby's 'lies' did not cause the investigators to waste their time and/or money or do anything they wouldn't have done anyway.

One could argue that by Libby (falsely) saying he heard about Plame from the reporters, then the investigators had to spend time and money trying to determine where those reporters got the information Libby claimed they gave him. But the investigators would have sought to talk with Miller, Cooper and Russert in any event.... had Libby told the 'truth' about his conversations with them, the investigators would have wanted to question them... in order to verify Libby hadn't told them anything he wasn't supposed to have told them (which is the case, as the lack of any indictment related to an 'underlying crime' proves).