Lewis “Scooter” Libby deserves a stiff prison term to deter his erstwhile Bush administration colleagues, for example, Attorney General Alberto Gonzales and White House political guru Karl Rove, from equivocating with Congress and the courts. A stiff punishment is imperative also to honor the rule of law, the nation’s crown jewel.
Libby committed his crimes while chief of staff to Vice President Dick Cheney, serving under oath to support the Constitution of the United States. He was a role model for youths because of his position and prestige. His prevarications to the FBI and grand jury were reminiscent of former President Clinton’s perjury and obstruction of justice that occasioned his impeachment by a Republican-controlled House of Representatives. U.S. District Judge Reggie B. Walton should reject Mr. Libby’s plea for an anemic sentence of probation.
Nothing is as dangerous to the Constitution’s checks and balances and protections against government abuses as a belief among high-ranking officials that they are above the law and may lie or connive with impunity. Associate Justice Louis D. Brandeis sermonized in Olmstead v. United States (1928): “In a government of laws, existence of government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it invites everyman to become a law unto himself; it invites anarchy.”
Truthful testimony is the lifeblood of the rule of law. Justice John Paul Stevens elaborated in ABF Freight System, Inc. v. NLRB (1994): “False testimony in a formal proceeding is intolerable. We must neither reward nor condone such a ‘flagrant affront’ to the truth-seeking function of adversary proceedings.” Yet Libby, thoroughly schooled in his constitutional obligations, lied to both the FBI and a grand jury during special prosecutor Patrick Fitzgerald’s investigation of the leak of Valerie Plame’s CIA nexus. Libby was convicted of false statements, perjury and obstruction of justice. Mr. Fitzgerald, a highly regarded Republican United States attorney, was appointed by then Attorney General John Ashcroft. Libby was not the victim of a political witch hunt.
Like Mr. Clinton, the vice president’s former chief of staff has sneered at confessing to the reprehensibility of his wrongdoing, an attitude that encourages imitation. Libby also defiled his constitutional oath, which further demonstrates prison would not be incommensurate with his crimes. The first article of impeachment voted against Mr. Clinton nicely illustrates the gravity of Libby’s lies to the FBI and grand jury.
Article I declared: “In his conduct while president of the United States, William Jefferson Clinton, in violation of his constitutional oath faithfully to execute the office of president of the United States and, to the best of his ability, preserve, protect and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has willfully corrupted and manipulated the judicial process of the United States for his personal gain and exoneration, impeding the administration of justice, in that:
“On Aug. 17, 1998, William Jefferson Clinton swore to tell the truth, the whole truth, and nothing but the truth before a federal grand jury of the United States. Contrary to that oath, William Jefferson Clinton willfully provided false and misleading testimony to the grand jury concerning: (1) the nature and details of his relationship with a subordinate government employee; (2) prior perjurious, false and misleading testimony he gave in a federal civil rights action against him; (3) prior false and misleading statements he allowed his attorney to make to a Federal judge in that civil rights action; and (4) his corrupt efforts to influence the testimony of witnesses and to impede the discovery of evidence in that civil rights action.
“In doing this, William Jefferson Clinton has undermined the integrity of his office, has brought disrepute on the presidency, has betrayed his trust as president, and has acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States.”
Unlike Mr. Clinton, Libby did not lie to conceal his own wrongdoing. On the other hand, Mr. Clinton inflicted greater damage to the rule of law because of his greater constitutional stature.
Congressional or judicial checks on executive abuses are toothless without the ability to secure truthful testimony from responsible officials. At least since World War II, however, a culture of arrogance in the White House has found expression in chronic lies, counterfactual assertions, and deceptions. Democratic discourse has been distorted, and executive overreaching and folly has multiplied. A tough prison sentence for Libby is needed to begin restoring honesty as the coin of the realm, even though past and present government officials in his shoes have evaded justice. The restoration process must begin with someone.
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group and chairman of the American Freedom Agenda, an organization devoted to restoring checks and balances and protections against government abuses.