Crimes of recollection

Victoria Toensing takes on the prosecution of Scooter Libby for having a different recollection than some reporters with no notes or sketchy notes.

...

There's a reason why responsible prosecutors don't bring perjury cases on mere "he said, he said" evidence. Without an underlying crime or tangible evidence of obstruction (think Martha Stewart trying to destroy phone logs), the trial becomes a mishmash of faulty memories in which witnesses can seem as guilty as the defendant. Any prosecutor knows that memories differ, even vividly, and each party can be convinced that his or her version is the truthful one.

If we accept Fitzgerald's low threshold for bringing a criminal case, then why stop at Libby? This investigation has enough questionable motives and shadowy half-truths and flawed recollections to fill a court docket for months. So here are my own personal bills of indictment:

* * *

THIS GRAND JURY CHARGES PATRICK J. FITZERALD with ignoring the fact that there was no basis for a criminal investigation from the day he was appointed, with handling some witnesses with kid gloves and banging on others with a mallet, with engaging in past contretemps with certain individuals that might have influenced his pursuit of their liberty, and with misleading the public in a news conference because . . . well, just because. To wit....




There is much more and many more defendants in Toensing's indictment. Fitzgerald's pursuit of Libby is bazaar. He already knew he was not responsible for the leak that he was to pursue and he already knew that the leak was not a crime. Knowing that it was not a crime he should also know that any incorrect recollections about what was said about the status of Valerie Plame Wilson would be immaterial and therefore no crime either.

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