Two prosecutors, two results

Dorthy Rabinowitz:

...

The story about the Duke athletes and District Attorney Nifong was not simply a riveting drama. It was in its searing way an educational event, not just about prosecutorial ambition run amok, but about a university world--reflective of many others--where faculty ideologues pursued their agendas unchecked and unabashed. Here was a nearly successful legal lynching, applauded by a significant chunk of the Duke faculty, proud to display their indifference to questions of guilt or innocence.

...

For Mr. Fitzgerald, whose prosecutorial zeal and moral certitude are in no small way reminiscent of Mr. Nifong's, the victory was complete with those two final judgments: the severe sentence for Mr. Libby, and the judge's refusal, last week, to allow its postponement pending appeal. The prosecutor's argument for a heavy sentence emphasized Mr. Libby's alleged serious obstruction of justice--a complicated effort, considering that there was no underlying crime, or evidence thereof, and that this case, which had begun in alleged pursuit of the leak of a covert agent's identity was, as the prosecutor himself would finally contend, not about that leak at all.

Just what serious obstruction of justice Mr. Libby could have been guilty of, then, was, at the least, a heady question, though not one, clearly, that raised any doubts in the judge. Neither did Mr. Fitzgerald's charge--also in pursuit of a heavy sentence--that the defendant had caused, by his obstruction, no end of trouble and expense in government effort.

...

The prospects for Mr. Libby's success in an appeal hinge on three points, two concerning the court's refusal to allow the defense to present certain witnesses. The other potentially powerful issue relates to Mr. Fitzgerald. The Special Prosecutor was given, on his appointment (by his long-time friend, acting Attorney General James Comey) a remarkable freedom from accountability to any higher authority or Justice Department standards. This unique freedom was made explicit in his appointment letter. Such unparalleled lack of control, the appeal will argue, is a violation of the principle of checks and balances.

However it comes out, both the case mounted against Mr. Libby, and the sentence delivered, have plenty of parallels. It is familiar stuff--the fruits of official power run amok in the name of principle and virtue--and it's an ugly harvest. Mr. Libby is another in the long line of Americans fated to face show trials and absurdly long sentences--the sort invariably required for meritless prosecutions.

There was at least one bright spot in the events of the last week, specifically, Mr. Nifong's removal from office--a case, at long last, of a prosecutor called to account. It will be some while we can guess, before any such wheels of justice grind their way to the special prosecutors.

Walton made a fatal era in allowing the case to proceed. For perjury to be a crime several elements are required and one of the most important is that the statement be material. Libby statement fails in a couple of regards. First it was a difference in recollection that was recast as a lie by the prosecutor. Second, since the prosecutor already knew that Libby was not responsible for the leak, what he said in his conversation with someone else was immaterial to his investigation.