It's a common refrain at the moment, from right-wing and neocon hacks to journalists who, really, ought to know better: "Scooter Libby's perjury wasn't really a crime because there was no underlying crime."
Look, this is very simple: Patrick Fitzgerald was unable to convict anyone of the underlying crime because Scooter Libby perjured himself and obscructed justice. Or, even if you aren't persuaded that there would have been charges relating to the underlying crime had Libby not perjured himself and obstructed justice, surely you must at least admit of the theoretical possibility that someone, somewhere, might lie to investigators to prevent them from being able to file criminal charges.
So, if we go around saying that perjury and obstruction of justice aren't crimes if no one is charged with the underlying crime, where does that leave cases where perjury and obstruction of justice prevent
charges relating to the underlying crime? Why would any witness with anything to lose ever tell the truth under those circumstances? You'd only ever be charged with perjury if you did it badly, and people managed to prove the crime you were lying about anyway. Prosecuting anything at all would become impossible if those things weren't crimes by themselves, and therefore incentives to tell the truth.
So, I support jailing Scooter, and not just because he's Dick Cheney's lackey, and not just because he has a very stupid name. I think there's a principle involved here that gets to the heart of how our system of justice, indeed any system of justice, has to work.
Okay. So. I don't want to go into this, but I can already hear the chorus of "well, what about Bill Clinton?" Shut up, chorus. ...sigh, but I guess I do have to answer.
It's not the same thing at all. Scooter Libby obstructed justice and lied to investigators regarding an extremely serious matter: the alleged outing of a covert CIA agent (an act which George H.W. Bush onced called "treason"). This would in fact be a very serious crime, so it is very serious to lie in order to cover it up.
Bill Clinton lied to an out-of-control prosecutor originally tasked with investigating a failed 1974 Arkansas land deal. When, after years and tens of millions of dollars spent, that turned out to be nothing, Starr started casting about for other things he could nail Clinton for. This makes sense if, and only if, you understand that Starr's real assignment was not "find out the truth about Whitewater," it was "get Bill Clinton for something." Starr had already tried to quit once to take a position at Pepperdine University, and been forced back to work by the Vast Right-Wing Conspiracy.
So, Starr, who, remember, was supposed to be investigating a land deal, found out about a blow job Clinton had gotten outside his marriage, then asked him a question about it that had nothing to do with anything, making sure Clinton was under oath at the time. I want to stress, here, that no one, not even Clinton's fiercest detractors, has ever claimed that the blow job itself was a crime. That
is what "no underlying crime" really looks like--not merely failure to prove the alleged underlying crime, but the total absence of any such allegation.
So, Clinton lied under oath about a matter of exactly no importance, to an irrelevant question asked during a bullshit gotcha investigation. He did this precisely once. Now, should he have told the truth? Of course. I mean, he should never have been asked the question, but one, you should tell the truth under oath even in moronic circumstances like this, and two, he and the rest of us would have been spared a lot of headaches had he just said "yep, I slept with her, can I go now?"
So if Congress had wanted to censure him...fine. (Moveon.org was founded to advocate precisely that course of action.) But I'm tired of people insisting that "perjury is perjury and the circumstances don't matter." That's simply not true, any more than it would be true to say that "theft is theft and the circumstances don't matter," and insist that stealing a pack of gum should carry precisely the same penalty as grand theft auto or holding up a bank.
No one believes that. But it's no sillier than arguing that lying in response to a bullshit question about sex ought to be regarded as precisely the same act as repeatedly lying to cover up a serious crime. It simply isn't. The trap Starr set for Clinton was a cynical abuse of perjury laws. Patrick Fitzgerald's conviction of Scooter Libby, on the other hand, is precisely the kind of case those laws were written to address.