Friday, March 9, 2007
Professor Stuart Green, the L.B. Porterie Professor of Law at Louisiana State University, has published an interesting op-ed analyzing whether the conviction of I. Lewis Libby was fair. Professor Green is a leading cirminal law theorist, and his recent book, Lying, Cheating, and Stealing: A Moral Theory of White Collar Crime, provides a systematic analysis of a range of criminal offenses, including perjury and obstruction of justice, that is well worth reading. He writes that to judge whether a prosecution like the Libby case is proper, three factors should be considered: first, the seriousness of the conduct being covered up; second, the legitimacy of the government's investigation into the underlying conduct; and, third, the significance of the cover-up itself. Professor Green argues:
In the Libby case, the answers to these questions now seem fairly clear. With respect to the first factor, being part of a scheme to leak classified information about the identity of a CIA covert operative in a time of war undoubtedly qualifies as serious. (Granted, there is controversy over whether the leak really was illegal, but it was serious enough to warrant appointment of a special prosecutor.) As for the second factor, compared to Kenneth Starr's Whitewater fishing expedition, Libby special prosecutor Patrick Fitzgerald's investigation seems to have focused fairly narrowly on finding the source of the leak.
It is the third factor, though, that is likely to be the most significant in assessing the propriety of the Libby conviction, as well as the other cover-up prosecutions. Libby's lie to the grand jury was harmful because it made it more difficult, perhaps impossible, to know the facts of the underlying leak case. As Fitzgerald himself stressed in his closing argument, Libby "threw sand in the eyes of the grand jury."
The op-ed is available from the Philadelphia Inquirer (here). (ph)