Richard Cohen is Still an Idiot

Richard Cohen hops on board the Free Scooter Libby Bandwagon today. Let's take a look!

With the sentencing of I. Lewis "Scooter" Libby, Fitzgerald has apparently finished his work, which was, not to put too fine a point on it, to make a mountain out of a molehill. At the urging of the liberal press (especially the New York Times), he was appointed to look into a run-of-the-mill leak and wound up prosecuting not the leaker -- Richard Armitage of the State Department -- but Libby, convicted in the end of lying. This is not an entirely trivial matter since government officials should not lie to grand juries, but neither should they be called to account for practicing the dark art of politics. As with sex or real estate, it is often best to keep the lights off.

For the love of...does Richard Cohen not know that Fitzgerald began his investigation at the request of the CIA? Is it still 2004, where we can point fingers at the bogeymen in the "Liberal Press" whenever somebody does something we don't like? Maybe if the New York Times actually had the power to launch a criminal investigation...maybe then we'd actually get somewhere with torture, secret prisons, and the U.S. Attorney firings. Nice one, Dick.

And saying that obstructing a federal investigation is "not an entirely trivial matter" sure seems like an attempt to trivialize it...and why investigate it at all if it's just "the dark art of politics?" Oh, I don't know, maybe because politics isn't supposed to be a "dark art" in a democratic society? Maybe because in a constitutional democracy, the lights should be kept on, not off? Maybe because obstructing justice isn't supposed to be an acceptable political practice in a democracy? Then again, maybe Cohen is right...maybe we shouldn't have bothered investigating Watergate, either...I mean, after all, Nixon and his cronies were just "practicing the dark art of politics," and what's wrong with that?

Moving on, Cohen whines about Patrick Fitzgerald's bullying of poor Judy Miller and Matt Cooper...oh, pity the poor free press!

Much heroic braying turned into cries for mercy as the government bore down. As any prosecutor knows -- and Martha Stewart can attest -- white-collar types tend to have a morbid fear of jail.

Listen, Richard, I'd feel a lot worse for Judy Miller if she actually were a member of the press, but by 2003, she was barely recognizable as such. She was a mouthpiece for the administration. She printed their stories without questioning them, without performing the least bit of actual journalism to see if what she was printing might actually be true. If you want to be treated like a journalist, you have to behave like a journalist. Judy Miller's inappropriately cozy relationship with the administration is what put her into a situation that led to her incarceration.

Oh, and as for white-collar types "tend[ing] to have a morbid fear of jail," congratulations Richard, you win today's Otis Award! Because I'm sure Otis would agree that "real criminals" don't fear jail the same way that people who are "not what most people would, or should, think of as a criminal" do.

As Fitzgerald worked his wonders, threatening jail and going after government gossips with splendid pluck, many opponents of the Iraq war cheered. They thought -- if "thought" can be used in this context -- that if the thread was pulled on who had leaked the identity of Valerie Plame to Robert D. Novak, the effort to snooker an entire nation into war would unravel and this would show . . . who knows? Something. For some odd reason, the same people who were so appalled about government snooping, the USA Patriot Act and other such threats to civil liberties cheered as the special prosecutor weed-whacked the press, jailed a reporter and now will send a previously obscure government official to prison for 30 months.

Wow, I'm glad that you've got the guts to tell it like it is, Richard! Leaking the identity of a covert agent? Hey, that's just a little gossip! What's the harm in that? It's not like loose lips sink ships or anything like that.

And hey, I'll tell you what I "thought" might be revealed if the thread was pulled: nothing...because we already know that the administration lied the nation into the Iraq War, with a whole lot of help from "journalists" like Judy "WMD" Miller and her colleagues at the "liberal" New York Times.

I'm also glad to know that the top aide to the most powerful vice president in U.S. history is now a "previously obscure government official" to you, Richard. If you didn't know who Scooter Libby was before this case broke, I guess you don't pay much attention to things here in Washington, huh?

This is precisely the sort of investigation that Jackson was warning about. It would not have been conducted if, say, the Iraq war had ended with 300 deaths and the mission had really been accomplished. An unpopular war produced the popular cry for scalps and, in Libby's case, the additional demand that he express contrition -- a vestigial Stalinist-era yearning for abasement. No one has yet explained, though, how Libby can express contrition and still appeal his conviction. No matter. Antiwar sanctimony excuses the inexplicable.

You're right, Richard...if the war had ended with 300 deaths and the mission really accomplished, this wouldn't have happened...because the fucking administration wouldn't have felt compelled to leak a fucking covert agent's identity in an attempt to undermine the credibility of an outspoken critic of the war...but the mission wasn't fucking accomplished, was it, so they fucking leaked, and the C.I.A. asked for an investigation, and then Scooter Libby obstructed that investigation. What part of this don't you understand?

Oh, and there was never an "additional demand that [Libby] express contrition." It's common practice in our criminal justice system that an unrepentant convicted criminal can't expect as much leniency in sentencing as a convicted criminal who accepts responsibility for their acts. I guess Scooter didn't feel like he had to express any contrition, since he's got the whole cozy Beltway establishment (that includes you, Richard) lobbying the President for a pardon or a commuted sentence. The fact that you think that Libby should have gotten some kind of special treatment at sentencing and been granted leniency without accepting responsibility just because he obstructed justice while practicing the "dark art of politics" makes me want to vomit...there, I just threw up in my mouth. Thanks, Dick.

Accountability is one thing. By all means, let Congress investigate and conduct oversight hearings with relish and abandon. But a prosecution is a different matter. It entails the government at its most coercive -- a power so immense and sometimes so secretive that it poses much more of a threat to civil liberties, including freedom of the press, than anything in the interstices of the scary Patriot Act.

Wow. Um, Richard? Investigation and oversight hearings without the prosecution of subsequently uncovered illegal activities is not "accountability." The government investigating potentially illegal activity carried out by the government itself is NOT the government being coercive, and it does NOT pose a threat to civil liberties: it is a necessary function of a free democratic government. I'm going to repeat myself here: investigation and oversight hearings with the subsequent prosecution of subsequently uncovered illegal activities is not "accountability," and it does absolutely nothing to discourage a government that feels free to practice the "dark art of politics" in whatever ways they choose.

I don't expect George Bush to appreciate this. He is the privileged son of a privileged son, and he fears nothing except, probably, doubt. But the rest of us ought to consider what Fitzgerald has wrought and whether we are better off for his efforts. I have come to hate the war and I cannot approve of lying under oath -- not by Scooter, not by Bill Clinton, not by anybody. But the underlying crime is absent, the sentence is excessive and the investigation should not have been conducted in the first place. This is a mess. Should Libby be pardoned? Maybe. Should his sentence be commuted? Definitely.

Yeah, why would the privileged son of a privileged son appreciate the idea of not holding someone accountable for the consequences of his illegal activities? Maybe because Bush has lived his whole life with the appreciation of this concept.

I have considered what Fitzgerald has wrought, and I can tell you that I am personally genuinely better off for his efforts. So that's at least one person, Richard, in case you're actually counting.

And my god, Richard, can we stop with the whole "underlying crime is absent" shit? For starters, Plame actually was covert at the time of the leak. Now, Fitzgerald was unable to prosecute anyone for this...hmmmm...could that, maybe, have something to do with the fact that Scooter Libby lied to investigators and the grand jury, and obstructed justice? Are you suggesting, Richard, that if a person who obstructs justice does so successfully, they should not face any prison time, because there was no "underlying crime?" Or are you suggesting that it's okay to lie to federal investigators and grand juries, and it's okay to obstruct justice, as long as what you're lying to cover up isn't ever prosecuted? Because if that's what you're saying, well, you're an idiot.

Looks Like Somebody Listened to Otis...

Paris Hilton was released from jail today. That's okay...she's rich and white...you know, "not what most people would, or should, think of as a criminal."

Otis...Otis...Wasn't he the town drunk?

I'm sure you've seen this already, but I wanted to draw your attention to a wonderful piece of opinion journalism from today's Washington Post. It's by Federalist Society member William Otis (h/t to Dan Froomkin on the Federalist Society thing...I guess the Post didn't think I'd find that particular piece of information to be relevant as I was reading Mr. Otis' work), and in it, he argues that, while Scooter Libby shouldn't be pardoned, per se, he shouldn't be made to serve any prison time, because he's not someone whom "most people would, or should, think of as a criminal." I was a little confused after my first read, but I took another look, and I think I get what Mr. Otis is saying. As a public service, I thought I would parse it for you.

Scooter Libby should not be pardoned. But his punishment -- 30 months in prison, two years' probation and a $250,000 fine -- is excessive. President Bush should commute the sentence by eliminating the jail term while preserving the fine.

I've always wondered why the President didn't get more involved in the judicial process by tweaking sentences to ensure that justice is properly served. Perhaps the country would be better off if he moved around the country during the year, and set up temporary offices in various cities, he could hear petitioners and then modify the sentences imposed by federal judges as directed by the federal sentencing guidelines...you know, like kings used to do.

There is a legal principle at stake in this case greater than either Libby or the politics of the moment. It is a fundamental rule of law that the grand jury is entitled to every man's evidence. The grand jury cannot survive as the essential truth-finding tool it is if witnesses can lie with impunity. True, Libby committed a "process crime" -- that is, so far as has been established in court or even alleged by the prosecutor, he committed no crime until after the government initiated its investigation of the underlying act (namely, the revelation of Valerie Plame's CIA employment). But for obvious reasons it is not for grand jury witnesses to determine when an investigation is legitimate. As the Supreme Court has noted, there are many ways to challenge questions one believes the government should not be asking, but "lying is not one of them."

This seems clear enough.

U.S. District Judge Reggie Walton noted that there was ample evidence that Libby intentionally lied. Jurors took care (they did not convict on all counts), and the evidence before them makes it hard to believe that Libby's misstatements were merely a product of poor memory or confusion. The case was proved, and the conviction should not simply be wiped away.

Again, clear enough: in the parlance of our time, Scooter "did the crime."

Yet the sentence is another matter. Neither vindication of the rule of law nor any other aspect of the public interest requires that Libby go to prison.

Hmmm...now I'm getting a little confused. Has Mr. Otis never heard of the use of prison sentences as a deterrent?

He is by no stretch a danger to the community, as "danger" is commonly understood. He did not commit his crime out of greed or personal malice.

Wow, I didn't realize that one could avoid a prison sentence if one believed one's motives to be pure. I also did not realize that lying to a grand jury and federal investigators in an (ultimately successful attempt) to head off an investigation into criminal behavior which one may have been involved in was not motivated at least in part by self-interest. Things are starting to get clearer for me now.

Nor is his life one that bespeaks a criminal turn of mind.

Gosh, I also didn't know that one could avoid a prison sentence if one's life doesn't "bespeak a criminal turn of mind." Hurray! No prison for church-going, God-fearing first time offenders!

To the contrary, as letters to the court on his behalf overwhelmingly established, he has been a contributor to his community and his country.

Oh boy, this is fantastic! This means that if one is convicted of a serious crime, one can avoid prison time completely by getting one's friends and co-workers to write to the court to say what a fabulous contributor to his community and country! "Your honor, Mr. Gacy has been deeply involved in the community his entire life. Why, for years he has regularly dressed up as a clown and entertained the neighborhood children at our block parties!"

And whether or not we agree, we cannot dismiss out of hand the notion that Libby thought he was serving his country by his overall conduct in this episode, specifically by letting it be known, truthfully, that it was not the White House that tapped Joseph Wilson to look into whether Saddam Hussein had sought uranium in Niger.

I think Mr. Otis just blew my mind here...wait, I get it! Because there is a chance that Libby thought he was "serving his country" (and, by purest coincidence, his boss) by engaging in the underlying behavior he was convicted of lying about, it's okay that he lied about it! "I'm sorry I lied when I said I didn't line up those villagers and gun them down, your honor, but you cannot dismiss out of hand the notion that I thought I was serving my country when I pulled the trigger...so you see, you can't possibly send me to prison." Oh, and from now on, I would like to see more newspapers refer to leaking as "letting it be known." It just rolls off the tongue, doesn't it?

A sense of proportionality argues in favor of eliminating Libby's prison term. This was an unusually harsh sentence for a first offender convicted of a nonviolent and non-drug-related crime.

Wow, Mr. Otis is right! A man who lied to federal investigators about the alleged leaking to the press of the identity of a covert agent in apparent retribution for the agent's husband's public questioning of a key piece of evidence used to bolster the administrations causus belli for a preemptive war is far less deserving of prison time than, say, Thomas Grossi, Sr. (2 1/2 years, just like Scooter!) or Mario Pacetti (only a year and a day), a pair of lawless scumbags who were recently convicted of growing (oh, excuse me, "manufacturing") marijuana in an Oakland warehouse and providing it to a medical cannabis dispensary that was licensed by the City of Oakland (I eagerly await Mr. Otis' interpretation of the Commerce Clause, by the way). And Mr. Pacetti actually admitted wrongdoing and expressed remorse! Why should a convict who actually admits he is guilty and says he's sorry be sentenced to less time than a convict who has never admitted any wrongdoing? After all, "we cannot dismiss out of hand the notion" that Libby didn't actually commit the crime he has been convicted of, now can we?

Sandy Berger, national security adviser to President Bill Clinton, was not sentenced to prison for sneaking documents out of the National Archives, destroying them and then lying to investigators. For his actions, Berger received no jail time, a fine one-fifth of that imposed on Libby and 100 hours of community service.

Ooooh, Mr. Otis is a genius! As long as I can point to someone else who was convicted of a superficially similar crime, a court shouldn't be allowed to impose any sentence harsher than what that other person received! I'm so glad that's cleared up!

And of course, Mr. Otis does eventually get to his real point:

To pardon Scooter Libby would not be consistent with the imperative that the mechanisms of law be able to demand, and receive, the truth. But to leave the sentence undisturbed would be an injustice to a person who, though guilty in this instance, is not what most people would, or should, think of as a criminal.

You see, your honor, even though he's guilty, Mr. Libby is a middle-aged, professional white male! Not some criminal! Now where have I heard that line of reasoning before? Oh yeah! After he was caught red-handed breaking into an Alexandria warehouse and stealing 90 handguns, a guy I went to high school with once told a Washington Post reporter: "It's not like I'm a criminal. I scored 1400 on my SAT." Of course, all that got him was a prison sentence and a mention in News of the Weird. Maybe Scooter deserves better...after all, he didn't just do well on the SATs, he also did well on the LSATs!

Commutation offers a middle ground. Unlike a pardon, commuting the prison sentence would not erase the conviction. It would leave Libby with the disabilities of a convicted felon -- no small matter for a lawyer and public figure.

It's so much easier for those no-name convicted felons who don't even have law degrees, isn't it? Why, Scooter won't even be able to vote in congressional elections! He'll be just like any other felon...or DC resident...you know, people like that.

But commutation would alleviate the harshest, and unnecessary, aspects of the sentence. A partial commutation would send the message that we insist on being truthful, but in the name of a justice that still cares about individual circumstances, we will not insist on being vindictive.

It's so true, Mr. Otis. Let's save the vindictiveness for the people who deserve it, like retarded people in Texas.