I have been trying to stay out of the Libby fray (too many friends on both sides), and I want nowhere near an argument over Derb’s comments. But as someone who has the battle scars attendant to defending Pat Fitzgerald here on our friendly Corner, I feel constrained to say that Joseph Bottom is really reaching here. Derb’s observation was A reaction at NRO — and an aberrational one. It was decidedly not, as he maintains, THE reaction. This place has been about as solidly pro-Scooter as anyplace, including the place where Mr. Bottum usually hangs his hat.
Not that Scooter Libby has asked for my advice, but I also must say that that the ardor of his supporters — including, I believe, NR — has hurt him, and hurt the conservative movement, in very fundamental ways. As to him personally, all this passionate rhetoric about his heroic service to the United States, how the investigation should never have happened, and how he got unfairly singled out and screwed (all of which I agree with) would be fine if it weren’t obscuring something fairly important: Lying to the FBI and a grand jury is a very bad thing, even if we all think it was an unworthy investigation.
The blather about the foibles of memory is just an excuse for people who don’t want to confront that inconvenient fact. Foibles of memory come up in every trial — they were particularly highlighted in the Libby trial because the defense hoped to score points with them given the nature of the charges, but they were not materially different from what happens in every trial. That’s why we have juries.
Witnesses have varying recollections, and juries sort it out. The evidence that Libby lied, rather than that he was confused, was compelling. And the jury was dilligent: the post-verdict commentary showed that they liked and felt sorry for him, several thought there should have been no case, some openly hoped for a pardon, and on the one count where the evidence was considerably weaker than the others, they acquitted him. They convicted him on the other four charges, reluctantly, because they had no choice if they were going to honor their oaths. And I respectfully think it’s very presumptuous of people who were not there and did not spend nearly the time and attention the jurors did on Libby’s case, to continue saying that the jury got it wrong and this was just a case of faulty memory.
By ignoring all that, and by railing as if Libby deserves an apology rather than acknowledging that he did a bad thing, Libby’s supporters have made it easier for him to avoid doing something that would have put him in much better stead with the sentencing judge and would position him much better for a pardon: Utter the words “I’m sorry,” in a way that communicates an awareness and some real contrition over the lying. Judges who’ve sat on cases where the evidence of wrongdoing is compelling expect a defendant — especially a smart, accomplished defendant — to express awareness and remorse; when the defendant fails to do that, it is not at all unusual for a judge to hammer him. The message from Scooter supporters here and elsewhere that he’s got nothing to apologize for is not doing him any favors.
Admitting wrongdoing and saying you’re sorry comes with some risk — it hurts a defendant’s chances on appeal. But I don’t think he’s got much of a shot on appeal anyway. Moreover, he lives in a country where no one ever has to lie, or even speak — he could have refused to answer the questions unless they gave him immunity. He ought to be sorry and he ought to say so. And, obviously, President Bush has the power to pardon him no matter what anyone advises, but I can tell you that the Pardon Attorney at DOJ is not likely to be very favorably impressed by a “woe is me” petition from someone who doesn’t seem to grasp that lying to investigators, especially when done by a public official, is dishonorable behavior. I imagine the recommendation would be against a pardon absent some demonstration of contrition.
Finally, I dread the next time — and you know there will be a next time — when a high-ranking liberal Democrat lies to investigators and obstructs justice. When the outraged grumbling starts around here, like it (rightly) did with Clinton’s lying and obstruction, the media is going to have an awful lot of material to quote from, and they are going to say, with considerable force, that it’s not lying that matters to us but who is doing the lying. The invective is doing us no favors, just as it is doing Libby no favors.