Scooter's Sentence (Satan wearing a parka--Estrich defends Libby!!)

Scooter's Sentence (Satan wearing a parka--Estrich defends Libby!!)

I suppose I should be pleased about the tough sentence handed down by Judge Reggie Walton, sentencing the vice president's former Chief of Staff Scooter Libby to serve 30 months in prison. After all, he's a Republican, and I'm a Democrat; I'm an opponent of the war, and he worked for one of its architects. I'm certainly no fan of his boss, Dick Cheney, one of the toughest hardball players to occupy the office of vice president. Former Ambassador Joe Wilson was practically gloating this morning when asked to comment on the sentence, declaring it a victory for the rule of law.

Maybe.

Having taught law for more years than I want to count anymore, and criminal law in particular, I know all the arguments about how the rule of law depends on everyone telling the truth, cooperating with criminal investigations, not trying to protect their bosses or those around them. I understand that people in high places have as much responsibility, or more, than the rest of us to follow the law and give their evidence, and that when they don't, their years of public service are no excuse.

Being chief of staff for the vice president is a bruising job, but also an exciting one. If Scooter Libby hadn't messed up, he'd be sitting pretty in a high-priced law firm right now, making a fortune not because his legal skills were better than anyone else's, but because his contacts and connections were. So with the good goes the bad; with the visibility goes the scrutiny; with the fame comes the price. Valerie Plame's career has been ruined. Why shouldn't his be?

The only problem here is that there was no underlying crime. The answer to the question Special Prosecutor Patrick Fitzgerald was initially appointed to investigate — had anyone violated the law in disclosing Ms. Plame's name in their effort to discredit her husband's criticism of the administration's war policy — was no. No one violated what we used to call the "Agents Law." Dick Armitage, the guy who admits he gave out her name in the first place, isn't facing time; nor are Karl Rove, Dick Cheney, or any of the reporters or news organizations who didn't hesitate to disclose her identity.

Libby is in trouble not for what he did, but because he wasn't as careful as the others during his interviews and grand jury testimony. If he'd just said, "I don't recall" a hundred times, or even invoked the Fifth (whether properly or not, following the Monica Goodling approach), he wouldn't be bankrupt, ruined, disgraced and heading to prison.

There is something troubling about prosecutors using perjury and obstruction of justice to turn into criminals people who haven't committed any other crime. Instead of using the grand jury as a tool for investigating other criminal activity, it becomes the forum for creating criminal conduct. The role of the FBI and federal prosecutors becomes one of creating criminals instead of catching them. Technically, I know, it's not entrapment, but it's still different than the usual business of tracking down those who have violated the law and punishing them for their bad acts. The investigation doesn't solve the crime; it creates it.

This time it was a pro-war Republican caught in the snare, which is why many liberals are cheering. But what goes around comes around, and I wonder if my friends would feel the same way if this technique were used to indict, convict and imprison one of our friends. As it might have been, during the Clinton years.

The whole phenomenon of special prosecutors turns the usual rules of investigating on their head. Instead of focusing on crimes, special prosecutors tend to focus on people themselves. Dig deep enough, ask enough questions, particularly under oath, and only those most experienced with the criminal justice system are likely to escape unscathed. Hardened criminals know enough to shut up. For others, the human tendency is to say too much, to shade the facts, to try to protect yourself and your colleagues, not necessarily from criminality, but from embarrassment. Lewis Libby is a lawyer, but he hadn't practiced in years, and neither had his wife. Unfortunately for him, it cost him plenty.