Firing Fitzgerald would be additional remedy, but should Libby get off?
Darn. Thought I had reposted before I clicked on another link.
Anyways, here's the gist:
But enough with parallels - with regard to the Libby case, is it your position that lying to the investigators (not only by Libby, but by ALL of those questioned) is okay?
Sorry, I realized that I didn't directly answer your question.
It is not my position that lying to the investigators is morally O.K. That is a different question from "illegal," and a different question as to whether Fitzgerald should be held accountable for not making this fundemental determination. Note that when I posted "He should be invited in to explain himself to the AG and the President. If he can't explain why he didn't carry out the first elements of the investigation, he should be fired," I specifically did not discuss the dispensation of Libby's case.
If a Fitzgerald replacement conducts the review and finds that Plames identity plausibly fits the criteria under the law, then proceed. If it does not plausibly fit, then nothing Libby said was relevant one way or another, as there was no investigation.
I'm trying to avoid putting words in your mouth, but I take that as "if Plame is not covert, then there should be no legal penalty for lying to investigators."
The main policy in this case is that courts very much do not want people to tell deliberate lies on the witness stand and, in general, take the view that defects in the steps that may bring witnesses to the stand are not adequate reason for tolerating the lies and foregoing punishment. A number of Supreme Court decisions reflect this general policy.Thus, in Dennis v. United States, 384 U.S. 855 (1966), convictions for filing false non-Communist affidavits were sustained, the Court holding that it did not matter whether the underlying statute that required them violated the First Amendment. Id. at 867; see also Bryson v. United States, 396 U.S. 64, 72 (1969). Similarly, in United States v. Mandujano, 425 U.S. 564, 576, 584 (1976), and United States v. Wong, 431 U.S. 174, 176-78 (1977), the respective failures to give a grand jury witness a Miranda warning (in one case) or a warning as to the privilege against self-incrimination (in the other) were held not to excuse the subsequent perjury of the witness. Other cases are to the same effect.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=1st&navby=case&no=022276
The process you propose, that an investigator has to show all the other elements of the offense before making an accusation of perjury, would create an interesting game of "guts" between witnesses and investigators. A game where lying becomes a more viable option to witnesses, in all cases.
It is not my position that lying to the investigators is morally O.K. That is a different question from "illegal,"
Oh golly, I just assumed our discussion was on the legality, and not on the morality. "Okay" meaning that tehre would be no legal consequence, "lie and get away with it" sort of thing.
If a Fitzgerald replacement conducts the review and finds that Plames identity plausibly fits the criteria under the law, then proceed. If it does not plausibly fit, then nothing Libby said was relevant one way or another, as there was no investigation.
Yes, and what about the jail time of Miller, the forced testimony and all the legal costs incurred there? Libby's remedy being "case dismissed," what about Miller?