All Alone in the Night

In a move that should shock precisely no one, members of the Bush administration are suddenly very reluctant to testify under oath to anyone. This is taken as further proof (as if they needed any) of the guilt of pretty much anyone who has the temerity to be Republican to those on the left, and in some cases they may well be right, as this administration has hardly been a model of propriety and openness. Nonetheless, in their rush to their preferred judgement, it seems to me that the left is perhaps overlooking a rather obvious reason for Republicans to avoid saying anything under oath: I. Lewis 'Scooter' Libby.

It's possible that Libby was involved in truly criminal acts. Whether or not Valerie Plame met the legal definition of a covert operative, the Bush administration's decision to unmask her in order to undermine her husband's testimony was wrong, and I've got no heartburn with them paying a harsh political price for it. (If only the left were so concerned about national security when their own people undermine it, but I digress.) Nonetheless, whether because of a cover up or because Plame didn't meet the rather stringent requirements for the Intelligence Identities Protection Act, there's no evidence of which I am aware that points to Libby breaking any laws other than lying under oath.

Perjury, do not mistake me, is a serious offense. I was among those who believed that while Ken Starr went well beyond the proper limits of his investigation in his zeal to get a conviction, once President Clinton perjured himself, he should have been tossed our of the White House on his ear. And if Libby did, in fact, perjure himself, I have no particular heartburn with him spending a few years in jail, although it does seem incongruous that Libby may do more time than your average rapist. Still, the evidence I've seen against Libby isn't all that strong. It basically hinges on a he said-she said between Libby and Tim Russert, who has been known to misremember things before.

But then, we all misremember things. I remember being quite the stud in my youth, but friends who knew me in high school and college insist that isn't really the case. I suspect that few of us don't have some memories that aren't quite in sync with reality; that's part of the trouble with eyewitness testimony. Ask any cop and she'll tell you that if you have four witnesses to an accident, you'll get four different stories about what happened, and nobody will be lying. (By lying I mean telling an intentional mistruth, for clarity.) No two people see anything quite the same way. We all bring our own prior experience and prejudices to each situation, and those shape our perceptions.

Back to the question of testifying under oath. Maybe Libby perjured himself intentionally, lying to protect his boss. Or maybe Libby told the truth as he remembered it, but was mistaken. Maybe Russert told the truth as he remembered it, but was mistaken. I am not trying to get Libby off; the courts have spoken, and I have no interest in trying to overrule them. But I suspect a large number of Republicans saw what happened to Libby and came to a similar conclusion: even if you tell what you think is the truth under oath, you may end up going to jail. The average Republican, after all, probably believes Libby when he says he told the truth in his testimony, so how will they feel knowing that they could end up in the same place Libby is now? Given that, if you were called upon to testify, wouldn't you think twice before putting your neck on the chopping block?

The Democrats have gotten their pound of flesh, although it remains to be seen whether Libby will in fact serve any time. But regardless of the merits of this prosecution, they have also given word to every member of the Republican party to be extremely cautious about what they say under oath. To which they will respond 'Good, you should tell the truth when you're on the stand,' but when the truth comes down to a question of who the jury believes, Republicans know that they in danger of incriminating themselves even if they tell the truth as they remember it. I cannot blame any Republican for choosing to exercise his fifth amendment rights rather than risking jail time because his memory conflicts with someone else's.

I have no doubt that Patrick Fitzgerald believes in his heart that Libby is guilty. But the second-order effects of Fitzgerald's decision are likely to do a lot more harm than good.