George Melloan, the deputy editor, international, of The Wall Street Journal, has recently written two columns (here and here) in which he has addressed a common topic on this blog — i.e., the increasing criminalization in American society of ordinary business practices. Following on those columns, Mr. Melloan notes in this WSJ ($) column that the equally dubious criminalization of politics that is evident in the Scooter Libby indictment is a likely precursor of an even greater threat to freedom in American society:
The prosecutorial tsunami that has swept through a land teeming with lawyers and litigants has now come lapping up on the shores of the First Amendment. Now that politics has been criminalized, can reporting on politics be far behind?
If that sounds far-fetched, think how far prosecutors and state attorneys general have managed to stretch the reach of the law, tolerated by judges and a gullible press. A huge accounting firm, Arthur Andersen, was wiped out by an indictment because it failed to uncover the Enron fraud, something accountants are ill-equipped to do. Sarbanes-Oxley makes it hazardous to manage a company or sit on a corporate board because of the new liabilities it imposes. . . And then there’s Eliot Spitzer, an AG who specializes in extracting confessions to non-crimes.
The next big story will be the debate over Mr. Bush’s new nominee for the Supreme Court, Appeals Court Judge Samuel Alito. Advance word is that he, like sitting Justice Antonin Scalia, is concerned about abuses of constitutional law. That won’t save Scooter Libby from the ordeal he faces, but the high court is very much in need of such views.
Finally, as noted earlier here, having encouraged abuse of state power against unpopular business executives, the Bush Administration and Republican-controlled Congress are now in no position to rein in similar abuses toward the unpopular politician of the moment.
What a mess!
Defending the so-called capitalist class was probably deemed too controversial for the Bush administration. The persecution of Scooter Libby is forcing their hand. Patrick Fitzgerald cannot even offer a motive. Libby, however, is a lucky man. It will be virtually impossible to convince all twelve jurors of his alleged guilt. There is no sense for the case to even go to trial.
I have one more point to add: members of the legal community often cannot see the forest because the trees are in the way. They may be too close to the law. I find it amazing that few clearly see the near impossibility of convicting Scooter.
David, what lawyers understand is that even strong criminal cases for the defense remain a crapshoot based on a number of factors, particularly the composition of the jury pool. Despite the transparent nature of the prosecution of Libby, he could be subjected to a very bad jury pool for him in Washington, D.C. Similarly, I never thought that the prosecution in the Nigerian Barge case would ever be able obtain convictions against the Merrill Lynch defendants in that case, but they did. Accordingly, the power of the state to win even weak cases is another reason why the principle of prosecutorial discretion is so important to our criminal justice system.
ìDespite the transparent nature of the prosecution of Libby, he could be subjected to a very bad jury pool for him in Washington, D.C.î
Thanks for slapping me back to reality. Your point is well taken. Letís be blunt: Scooter Libby might have to worry about racist black jurors out to get a white Republican. Only a lynch mob could find him guilty in a court of law. Anyplace else and the case would not even get to a jury. Yes, racism is alive and well in Washington, DC. Thereís no getting around it.
Paul Craig Roberts wrote about this pernicious trend in the Tyranny of Good Intentions. http://www.liberty-tree.org/ltn/tyranny-of-good-intentions.html