Javert or Clouseau?

Thursday, February 23, 2006
Or how about a mix of the worst traits of both so that an Inspector Clouvert is created. Someone who will dedicate themselves unstintingly to the creation of adjunct offenses in the course of investigating what was a non-crime from the beginning?

Clarice Feldman explores the legal intricacies involved in our current Inspector Clouvert masterpiece with special attention to a central thesis which Kafka himself would indeed have understood and appreciated.

Fitzgerald did an excellent job of convicting a mad Arab. A sheik who showed up in court wearing a turban, having hired the most flatulent excuse of an ACLU hack to ever stink up a courtroom as his defense attorney (the attorney now awaiting her sentence being upheld so that she may join her client).

Team Libby is of a different caliber, almost from a different universe, and Prosecutor Fitgerald is going to find out how very different in a very painful manner. He has purchased every bit of the pain that he will endure by failing to determine whether a statute had, in fact, been violated prior to tossing a reporter in jail and then charging Mr. Libby with lesser violations which will fail for lack of materiality. Presuming, of course, that Fitzgerald can provide believable evidence that even the lesser offenses have a provable basis.


CF said...

Thanks, Rick.I'll nurse myself with this as the hate mail pours in..At least now I shouldn't have to explain to my detractors why the Tate; language proves me wrong.

Specter said...

now i get who cf is....duhhh...just kick me a few times to get me to pay attention....LOL

MeaninglessHotAir said...


It is always a pleasure to read your articles--you have such a lucid mind.

However, I'm not sure that I can agree with your fundamental premise here.

he cannot win a conviction of Libby for lying to prosecutors while they are in effect on a fishing expedition, rather than pursuing evidence of an actual crime.

Fitzgerald charged Libby with making false statements to federal investigators, perjury before a grand jury and obstruction of justice. Absent an underlying applicable criminal law, there is no justification for bringing charges about lying to investigators or under oath before a grand jury

Is that true? Does the statute say that lying to Federal investigators is illegal only when they are pursuing evidence of an actual crime, or does it say that lying to Federal investigators is illegal, period?

While I agree wholeheartedly that this is a travesty of justice, exactly the sort of travesty that one is likely to see with a law which makes lying a crime, that does indeed seem to be the law that we have.

Peter UK said...

This all seems to be built on an inflated importance of Plames job,that an official of the rank of Libby would actually remember all the hired help.Was rank was she anyway?

Secondly that "outing" is some kind of punishment,not the meal ticket for life that Plame has received.
What kind of wet,weedy,liberal punishment is outing anyway? Not very VRWC.Posting Plame to Iran,now that is punishment.

If Plame was so very important to National security,why did they let her marry a blabbermouth like Joe,as if marrying a Diplomat wouldn't be enough to blow her cover.

terrye said...


It seems to me that there is some question as to who lied, when they lied and to whom they lied.

And how can we know if people just are not wrong? I mean it has been awhile, sometimes people make mistakes.

So yes, it seems to me much ado about nothing.

Knucklehead said...


I was wondering that also. Purely speculation on my part but I believe they have to be investigating a crime or one can lie to them all one likes. I don't think they actually need to reach the point of finding a crime, however, for the lying to matter. Isn't that what got Martha tossed in jail? Did they ever actuall find a crime or were they just investigating one when she lied to them?

BTW, did y'all see this Byron York piece at The Corner? LIbby's first motion for dismissal is apparently that Fitzgerald was not a legit "controlling legal authority". Apparently once the Special Prosecutor statute expired the Clinton administration put in some stuff that closely spoofed the old statute and had special prosecutors who were subject to some higher authority and review and had to issue a report. The Bush admin, on the other hand, apparently just let Fitzgerald loose with no oversight and Libby claims there's no constitutional authority to do that. He essentially claims the whole Fitzgerald investigation was unconstitutional.

I have no idea if there's anything to that, and I don't want to see Libby go bankrupt defending himself, but I wouldn't mind seeing this drama play out a bit more. I want to see some journos and bastions of the Presse Ancienne sweat this one a little.

brylun said...

I echo Clarice Feldman's point that "a man's energies have been diverted away from productive activities." That's an understatement. Scooter Libby is a great American and we should all be thankful for his service to our country. His prosecution is a shameful travesty of justice.

Another travesty is the CIA's attack on the twice-elected president, George W. Bush. The unelected bureacracy's campaign of leaks should be of major concern to all of us who believe in democracy. Porter Goss has much work to do.

As knucklehead points out with his link to Byron York, the question of whether the absolute grant of authority to Patrick Fitzgerald meets constitutional requirements has been raised by defense motion. This is an interesting argument and may well find its way to the Supreme Court.

But Ms. Feldman raises another line of argument in her American Thinker piece, that there was no underlying crime. This is certainly true. Fitzgerald's failure to acknowledge this fact, in my mind, calls into question his motives and abilities.

Ultimately, all charges against Mr. Libby will be dismissed. Hopefully sooner rather than later.

MeaninglessHotAir said...


I believe that Martha Stewart was found guilty of the crime of lying to Federal investigators, despite the fact that no crime was committed.

The link says: The panel of eight women and four men began deliberating Wednesday on whether Stewart and Bacanovic, 41, obstructed justice and lied to the government about her sale of ImClone Systems Inc. stock in December 2001.

The conviction came exactly a week after U.S. District Judge Miriam Goldman Cedarbaum threw out the most serious charge against Stewart -- securities fraud -- which carried a maximum penalty of 10 years in prison and a $1 million fine.

In other words, she was brought up on two charges: 1) stock fraud, 2) lying to investigators; she was exonerated from charge 1), hence no crime was committed, but found guilty on charge 2).

Therefore I conclude that lying to investigators is a crime, whether an underlying crime existed or no.

I'm still waiting to be contradicted on this by our lawyers.

Seneca the Younger said...

MHA, as I recall there wre a couple of people convicted of crimes in the cases in which Martha was involved. (Martha's broker's assistannt, and the guy who was CEO.) In this case, it appears that Fitzgerald is no longer even asserting that a crime took place.

In any case, both Clarice and brylun are attorneyes....

Syl said...


The difference, as I understand it, is that there doesn't have to BE an underlying crime but an underlying crime has to be possible and that is what is being investigated.

In Libby's case the statutes don't seem to apply at all therefore an underlying crime is not even possible.

Therefore false statements and perjury are immaterial.

(Obstruction is a different matter since there's no materiality requirement there.)

brylun said...

The "materiality" requirement of 18 U.S.C. section 1001 is generallly a very low threshold.

A material fact is one that has a natural tendency to influence or be capable of influencing the government agency or department in question. The government doesn't have to be influenced; just capable of being influenced.

There are a number of appellate level federal cases setting this standard.

Ms. Feldman's argument is that this materiality requirement cannot possibly be met. The government was incapable of being influenced because Fitzgerald should have determined that there was no illegal disclosure of a covert agent.

This line of argument makes sense to me, given the facts we have assumed about Ms. Plame.

Therefore, I would recommend that attorneys include this argument in their defense of Mr. Libby.

gumshoe1 said...


"Therefore I conclude that lying to investigators is a crime, whether an underlying crime existed or no.

I'm still waiting to be contradicted on this by our lawyers."

the ablility to Lie under Oath without consequences,would make our legal system seriously ineffective.

that would seem to be common sense.

but then...
"I'm still waiting to be contradicted on this by our lawyers."...points out that common sense has very little to do with it.