The Libby trial undermines a lot of easygoing postulates about public figures. A virginal reaction to Mr. Libby’s conviction, given over the telephone by a journalist of acute judgment, was as follows: “It is almost impossible to believe that we are talking about a graduate of Columbia Law School with a distinguished record who, in middle age, lies flat-out, under oath, several times, to a grand jury.”
The comment assumes that there is no question but that Libby was guilty. The droned reaffirmation of his innocence, done outside the courtroom by Libby’s lawyer, did not have the effect of suggesting that Libby was in fact not guilty. It had the effect of reinforcing the stunned surprise of my commentator. As the minutes ticked on between the return of the jurors to the courtroom and the enunciation of their findings, the viewing public underwent a most dramatic experience: of the kind of confidence a jury can generate.
The contrast, of course, was with the jury that found O. J. Simpson not guilty. In that case, after more than eight months of trial, every unlocked mind in America knew that O. J. was guilty. The jurors deliberated for less than four hours and declared him not guilty.
In the case of Libby, the public did not, during the eight-week trial, conclude unquestioningly that he was guilty or that he was innocent. But after the jury spoke, and after one or two jurors submitted to questions from the press, it became as obvious that Libby was guilty as it had been obvious that O. J. was guilty, both defendants examined by the same system.
So we are left with speculation on the matter of Libby’s future. Here is one prediction, proffered as confidently as that the sun will rise tomorrow. There will not be a retrial — what is there left to probe? What may be left open is matters of law, and these questions will be raised in a court of appeals, not in a criminal court before a jury. And what questions would be considered, under appeal?
Those that are of supreme public interest do not, unfortunately, issue usefully from the experience of the Libby trial. What is in suspense is the culture of journalists’ relationships with informants. A 1972 decision by the Supreme Court (Branzburg v. Hayes) held that a reporter may be questioned even about information he was given confidentially, on the understanding that its source would never be disclosed.
In the years since that court decision, several reporters have gone to jail to solemnify their promises to their informant. The Libby case depended heavily on witnesses who were journalists, declaring to the jurors what words they had exchanged with the defendant. How many people who, under the old dispensation, would have been willing to talk to newsmen, will now not be willing? We cannot say more than that there will be a lot of them. And the old primacy of the press will not be acknowledged in practice, as before.
We have then also to wonder about cooperation with the agents of justice by federal officials who reflect on the experience of Mr. Libby. The refusal by someone called before a grand jury to give information through the device of pleading the Fifth Amendment has been widely thought an undignified usurpation of an important right — done, for the most part, by people who have something to hide.
How will that change? Mr. Libby was free to lie for his country up until his experience with justice at the hands of an inflamed prosecutor. How much will it cost the country to encourage the isolation of the class of governors from the class of inquiring journalists?
On the question, Should Libby be pardoned? surely the answer is yes, since it was wrong in the first place to prosecute him, whose principal crime was to rely on atrophied conventions.
© Universal Press Syndicate