Tuesday, March 06, 2007

re: Dreaming   [Andy McCarthy]

The jurors could not have helped but ask, "Where's Rove?"  As the juror explained, that was made an issue by Scooter's lawyer who said Libby was a scapegoat to protect Rove.  I don't happen to buy that, and I thought (and continue to think) it was an odd argument for Ted Wells to make.  But make it he did, and it would have been irresponsible for the jury not to consider it since it was one of the defense's main contentions.

I respectfully disagree with Mark.  I think that, far from being being gung-ho for the prosecution, the juror made the Rove comment in the context of suggesting that the prosecution of Libby was unfair — as Mark has long been arguing, with great force.  This is why, the juror said, the jurors had sympathy for Libby and made unflattering comments (e.g., "This sucks") about the case.  I don't think this jury thought there should have been more scalps:  When directly pressed about whether Rove or any other administration official should have been charged, the juror said there had been no evidence suggesting that should have been done. 

The jury's attitude was much more that Scooter had been unfairly singled out for something that seemed to be a lot less serious than advertised.  The jurors didn't like the case but, as the juror said, it wasn't their choice to be selected.  The only way they could follow their oath to apply the law to the facts was to convict where the evidence of lying was strong. Jurors are not supposed to nullify, even though they are often asked to do so.  When the evidence is there, they are supposed to convict, even if they think it's a case that shouldn't have been brought.

I have to say, this accords with my long-held view of the case.  I don't think there ever should have been an investigation in the first place.  The Justice Department should quickly have realized that the facts here did not warrant a prosecution under its standards for the espionage act or the agent identity protection act.  DOJ, under intense political pressure from Democrats and the anti-Bush media, did not close the investigation and kicked it to an independent prosecutor, but the most culpable person in this mess is Wilson, and I wish no one had been charged if there was no legal way of charging him. The administration had every good reason to refute Wilson — it was essential for the public to be told that what Wilson said in his op-ed was disinsgenuous; but I wish administration officials had done that openly and without apology, rather than in confidential leaks to reporters. 

All that said, though, there was an investigation, and nobody, especially public officials, should lie to the grand jury or to investigating police.  We can't (or at least we shouldn't) take the position that the obligation of truth-telling applies only to the investigations we approve of — especially when we live in a country where you are privileged to decline to answer  any questions.  What Libby did here was not the worst wrong in the equation, but it was still wrong.

In any event, the juror's remarks may be helpful to Libby down the road.  The pardon power is there for purposes of reasonableness and mitigation even when guilt has been established.  There is a lot in what the juror said for the defense to work with — and it comes from someone without an ax to grind who has considered the case closely.

03/06 03:33 PMShare