Rotunda in WSJ: Libby Conviction Sets Disturbing Precedents

Just as the president has the authority and discretion to decide whether to prosecute a case, so has he the power to pardon; and that is what Professor Ronald Rotunda argues for in his Wall Street Journal commentary on the perjury conviction of former White House aide I. Lewis "Scooter" Libby.

Rotunda points out that special prosecutor Patrick Fitzgerald never charged anyone with violating the Intelligence Protection Act of 1982. "The whole court case was about memories, not about the importance of classified information, or whether the government properly classified information in the first place. That is because Mr. Fitzgerald never charged anyone with the leak itself," said Rotunda. "Mr. Fitzgerald never even introduced any testimony that Ms. Plame's employment was classified."

The Case for a Libby Pardon, The Wall Street Journal, March 7, 2007. By Ronald D. Rotunda.

"But if testimony differs, the law allows the jury to look witnesses in the eye and believe one and not the other, even if there is no documentary evidence. That is why perjury is a powerful prosecution tool -- one that was abused here.

"Among the unhappy precedents if the Libby verdict stands: Executive branch officials will hide from the press, which is unfortunate because 'leaks' can be an important check on all three branches of government. And even innocent officials will not be forthcoming when it comes to cooperation with future prosecutors. ('I don't recall . . .')

"Perhaps the worst precedent would be normalizing the criminalization of policy differences. Many of those who loudly demanded Mr. Fitzgerald's appointment -- and who applauded yesterday's verdict -- offered no more compelling reason than that somebody should pay for the Bush administration's decision to go to war in Iraq.

"The late Supreme Court Justice Robert Jackson, when he was attorney general, warned that if the 'prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than the cases that need to be prosecuted.'"

To read additional comments by Professor Rotunda on the Libby conviction, please visit these links:

USA Today 
Los Angeles Times (free registration required)