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Perjury: Serious Offense or Not?
The national conversation has now turned to the Scooter Libby indictment for perjury. Many in the blogosphere, including our friends over at the K-Block, have suggested that it is somehow intellectually dishonest or hypocritical for conservatives who attacked Clinton over perjury to now defend Libby. I respectfully disagree.
Conservatives, including me, certainly did argue that perjury was a major offense during the Clinton Administration. We argued that it was an impeachable offense and that the Senate should remove President Clinton from office because of perjury and similar offenses.
But we lost the damn argument! The Senate and, more importantly, the American people clearly demonstrated that they did not believe perjury was a major crime. The Senate did not remove Clinton despite his clear guilt and the American people punished Republicans in the 1998 congressional elections for the impeachment. The American people have spoken: perjury isn't that big of a deal.
Let me throw out a hypothetical. Suppose your kid goes to a private school. Another kid at the school gets caught smoking pot. You argue that this other kid should be expelled because pot smoking is serious, but the school decides not to expel him, finding that pot smoking isn't that big of a deal. A couple of months later, your kid gets caught smoking pot. Are you estopped from arguing that your kid shouldn't be expelled? Does it make you a hypocrite or "intellectually dishonest" to say "you didn't expel Johnny for this; don't expel my son either"? Certainly not! It just means you have a sense of fairness and that you accept it when you lose an argument.
Those who claim that hypocrisy and intellectual dishonesty attach to conservatives defending Libby, or the parent defending his kid in my hypothetical, make a serious mistake. They fail to understand that progress is made in national debates and there's nothing wrong with accepting your losses. Yes, we conservatives once argued perjury is a serious offense. The American people said we were wrong. To argue that conservatives are now hypocritical or intellectually dishonest for accepting the judgment of the American people is to impose a critically unfair double standard on those who argue for stronger criminal laws and more severe enforcement of those laws.
posted by Jeremy at 4:28 PM
Saturday, October 29, 2005
Prosecutorial Discretion and the Libby Affair
As I discussed in a previous post, I think it's unfair to suggest that conservatives are hypocrites for suggesting perjury isn't that big of a deal with respect to Libby. The American people clearly said we were wrong when we claimed that perjury was a major crime during the Clinton impeachment. There's nothing wrong with us accepting that and saying "if it wasn't a big deal for Clinton, it's not a big deal for Libby."
Similarly, I'd like to disagree with Bill Kristol, who stated: "If Libby is guilty of purposely lying to a grand jury, that cannot be excused or minimized." (Hat tip: K-Block.) When conservatives attacked Clinton for perjury, the American people dealt Republicans a serious electoral defeat in 1998. The House of Representatives impeached Clinton, just as Fitzgerald has indicted Libby (an impeachment is, of course, a type of indictment). When the American electorate severely punished the Republican Party for essentially indicting Clinton for perjury, the American people said that Clinton's perjury should be excused or minimized.
Prosecutors in most states and in the federal system have discretion to seek indictments or not seek indictments, even when a person under investigation is clearly guilty of a crime. This is called "prosecutorial discretion." In 1998, in a rather unique episode in American history, the American people clearly expressed the opinion that the House of Representatives should have exercised its prosecutorial discretion and refrained from impeaching President Clinton, despite indisputable evidence that Clinton was guilty of the crimes with which he was charged.
There is nothing wrong with conservatives now arguing that Fitzgerald should have exercised his prosecutorial discretion and refrained from indicting Libby for crimes practically identical to Bill Clinton's. The American people spoke loud and clear in 1998; they expressed the opinion that prosecutors should generally not charge government officials with perjury absent an underlying substantive crime. The electorate expressed the opinion that the smooth functioning of the government is more important than the prosecution of minor, non-substantive crimes. Fitzgerald was under no obligation or duty to indict Libby; it seems to me Fitzgerald should have just let it go.
