"Simple-Minded"

by publius

Brendan Nyhan writes:

President Bush's commutation of Scooter Libby's prison sentence has unleashed a predictable series of simple-minded reactions. Liberals and Bush opponents are, of course, outraged. Joe Wilson and Atrios (here and here) are claiming that the commutation is "obstruction of justice" -- a nonsensical claim on its face (the president's pardon power is absolute except for impeachment).

Um, why is that nonsensical? Nyhan is essentially arguing that because the pardon power is absolute, the president therefore can’t commit obstruction of justice. That’s absurd. Of course a pardon can be an obstruction of justice -- it might not be prosecutable, but that doesn’t mean it’s not an obstruction of justice.

For instance, if Bush and Libby robbed a bank, and Bush eventually pardoned Libby for the sole purpose of keeping him from testifying, that doesn’t mean there’s no obstruction of justice. It just means that the Constitution prevents this particular act of obstruction from being prosecuted. Nyhan is falling back on a highly-legalistic argument in an attempt to show that he is the non-"simple-minded" voice of reason here -- essentially, “if the king does it, it’s not technically illegal.” It's like missing the forest for the ant on the tree.

And just to really annoy me, he repeats what is simply the worst argument in this whole debate.

As for me, I'm torn. It appears Libby did perjure himself, which is a serious matter under any circumstances. But he wasn't the original leaker -- Richard Armitage was -- and it's highly unusual to prosecute someone for perjury in a case where the underlying crime wasn't prosecuted.

Ugh – perjury is an analytically distinct crime. If a police officer mistakenly pulls me over for being drunk and then I hit him over the head, I can’t get out of an assault charge because I was wrongfully pulled over in the first place. They are distinct acts and distinct crimes. It’s a fundamentally intellectually dishonest argument that makes excuses for inexcusable behavior. In fact, if I weren’t so simple-minded, I might notice that this pardon-in-all-but-name will prevent Libby from testifying about things he knows, and also sends a message to the entire executive branch not to cooperate with investigations.

The fact that Nyhan is raising it is even worse because he’s not a hack. He’s just a knee-jerk “both sides are bad; the middle is always right” guy. To his credit, Nyhan wrote a fabulous book (it’s really very good) about the harm of spin. Well, here’s a living example of why he’s right. When your worldview is “the middle is always right,” you allow yourself to be deceived by spin. The morally bankrupt, corrupt punditry defending this decision has raised a desperate, dishonest argument that is completely irrelevant, and it has successfully defined the terms of the debate in such a way to make Nyhan (and others) split the baby.

Comments

[Stephen Frug]

The fact that Nyhan is raising it is even worse because he’s not a hack. He’s just a knee-jerk “both sides are bad; the middle is always right” guy.

I'm not familiar with Nyhan's work. But surely the fact that he is a knee-jerk "both sides are bad; the middle is always right” guy makes him a hack? As you just demonstrated, it leads to raising up dishonest and stupid arguments and disregarding values such as truth and logic.

It seems to me a sensible case could be made that knee-jerk the middle is right guys are the single worst force in political discourse right now. The hard right is bent on horrific ends... but what enables them to accomplish them is the abandonment of standards of truth and logic and evidence by our knee-jerk the middle is right media.

So forget whether he's a hack. If he's a knee-jerk the middle is right guy (and again, I don't know his work so I'm going by publius's description), then he's something far, far worse.

[KCinDC]

Yes, Nyhan is a knee-jerk "middlist" (he's done this sort of thing repeatedly), but I'm not sure that merits a "just". It's not clear to me that the pox-on-both folks are any less dangerous to our society than the hacks.

The most ridiculous example of this sort of "balance" I remember at the moment was this 2005 FactCheck.org piece abut judicial nominations claiming "Both sides twist facts". Here's the example of liberal "twisting":

On the other side, the liberal People for the American Way released an ad May 3 attacking both Owen and Brown. The PFAW ad says of Brown, "She's so radical that she says, with programs like Social Security and Medicare, seniors are cannibalizing their grandchildren!"

Actually, Brown was speaking about the debt being passed on to future generations, not suggesting that Medicare or Social Security causes old people to eat human flesh.

[Davis X. Machina]

Of course a pardon can be an obstruction of justice -- it might not be prosecutable, but that doesn’t mean it’s not an obstruction of justice.

It was obstruction of justice -- and it was impeachable -- in July of 1974:

Article One, section 9:

. endeavoring to cause prospective defendants, and individuals duly tried and convicted, to expect favored treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence or false testimony.

[Davis X. Machina]

It's not clear to me that the pox-on-both folks are any less dangerous to our society than the hacks.

Solon, the Athenian lawgiver, called for the execution or exile of those who took neither side in a civil war. At least those on the losing side made a choice.

[KCinDC]

Stephen Frug, Nyhan was fired from blogging for the American Prospect because he refused to stop playing his "balance" game there, writing posts designed to spark liberal outrage (and boost traffic) by slamming Democrats and reinforcing Republican attack themes.

[Model 62]

Armitage was Novak's source, right? So what about the fella from Newsweek (or was it Time?) and Judith Miller and Russert and whoever else? Did Armitage make those phonecalls, too?

[Batocchio]

Lovely analysis, Publius.

As to the hackdom issue - well, it can be debated, but I don't call someone a hack if I think they're arguing in good faith. I'd instead challenge their poor arguments. Tony Snow is clearly a paid hack. Meanwhile, I've seen Nyhan offer some very silly, even infuriating arguments due to his insistence on creating false equivalencies, but I've only read about a dozen of his pieces, so I'm not decided. Publius certainly exposes the sloppiness of Nyhan's arguments here, which is the important thing. I guess the next test is whether Nyhan is willing to acknowledge that.

[Batocchio]

Posted by: KCinDC | July 03, 2007 at 03:55 PM

That's where I first read Nyhan, with that Coulter post and a few others. I wasn't impressed, but didn't know how representative those were. False equivalencies and contrarian-in-defiance-of-all-facts is a schtick I just don't like, whether by Richard Cohen, Joe Klein, Nyhan or others. It strikes me as dishonest, a way to fill a column and to preen as an "independent" if silly thinker. It doesn't advance productive discussions.

[A.L.]

Where to people get the idea that it's "highly unusual" to prosecute people for perjury or obstruction if they are not also indicted for the "underlying crime"? What rubbish. If anything, these crimes are prosecuted more often in such cases, precisely because the lying or obstruction is easier than prosecuting the underlying crime (which the lying and obstruction were intended to cover up).

And, for the record, Libby leaked to Miller BEFORE Armitage leaked to Novak. It's pure happenstance that Novak ran with it and Miller didn't.

[Steve]

Who says it's "highly unusual" to bring a perjury charge in a situation where the underlying crime wasn't prosecuted? Obviously it's a matter of prosecutorial discretion, but I don't think it's "highly unusual" as an empirical matter in the least. And if you add the fact that the perjury hampered the investigation into the underlying crime, the answer seems almost self-evident.

What is extremely unusual, for what it's worth, is to bring a perjury charge in connection with a deposition given in a civil case. That doesn't mean it's okay to do it, of course, but I've never encountered a single example in all my years of practicing law.

[cleek]

Libby leaked to Miller BEFORE Armitage leaked to Novak

according to this,">http://www.dkosopedia.com/wiki/Plame_Leak_timeline">this, Armitage first leaked to Bob Woodward, 10 days before Libby leaked to Miller. then Armitage to Novak (and Libby to Miller, again) two weeks later.

[trilobite]

Actually, IIRC, Nyhan is right -- but it's a red herring. Nyhan's sneer implies that there is some sort of moral principle against prosecuting perjury without prosecuting the underlying crime. That implication feeds into the equally unfounded Republican meme that there was no underlying crime here. In fact, however, there is no rule or custom against prosecuting perjury by itself, it's just the way the facts usually work out.

Perjury is usually prosecuted in the context of prosecution of an underlying crime for the simple reason that, usually, the only way to prove somebody lied is to prove what the truth was. Well, if you can prove the truth, you can use it in prosecuting the underlying crime too, so you go ahead and do that. Also, the penalties for perjury are mild enough that it is often a waste of prosecutorial resources to go after it by itself.

Fitzgerald had the unusual situation where he could prove material perjury but could not prove the truth that the perjury covered up. He also didn't need to worry about waste of resources, and he did need to send a message to other potential witnesses. So prosecution, however unusual, was entirely appropriate, and Nyhan is being, at best, a useful idiot for corrupt abusers of our government.

[A.L.]

Who says it's "highly unusual" to bring a perjury charge in a situation where the underlying crime wasn't prosecuted?

Brendan Nyhan does, in the piece quoted above. I was just quoting him.

[Sebastian Holsclaw]

"That doesn't mean it's okay to do it, of course, but I've never encountered a single example in all my years of practicing law."

Perjury charges are very rare in criminal cases too. It isn't a very often prosecuted crime. (Pure statement of fact. Libby is an unusual case and should have been prosecuted.)

[A.L.]

Libby leaked to Miller BEFORE Armitage leaked to Novak

according to this, Armitage first leaked to Bob Woodward, 10 days before Libby leaked to Miller. then Armitage to Novak (and Libby to Miller, again) two weeks later.

Yes, I know. But it's important to keep in mind that nobody (including Fitzgerald) knew about the Woodward leak until after Libby was indicted. As far as Fitzgerald knew, Libby was the first leaker. Second, no one other than Armitage (and Novak and Woodward) knew that Artimage had leaked this information, so the leaks by Libby, Rove, Fleischer were wholly independent leaks. They didn't know that someone had already let the cat out of the bag, so to speak.

[A.L.]

Libby leaked to Miller BEFORE Armitage leaked to Novak

according to this, Armitage first leaked to Bob Woodward, 10 days before Libby leaked to Miller. then Armitage to Novak (and Libby to Miller, again) two weeks later.

Yes, I know. But it's important to keep in mind that nobody (including Fitzgerald) knew about the Woodward leak until after Libby was indicted. As far as Fitzgerald knew, Libby was the first leaker. Second, no one other than Armitage (and Novak and Woodward) knew that Artimage had leaked this information, so the leaks by Libby, Rove, Fleischer were wholly independent leaks. They didn't know that someone had already let the cat out of the bag, so to speak.

[Steve]

Brendan Nyhan does, in the piece quoted above.

Yes, I know, that's what I was responding to. I actually posted my comment before yours, I just got hung up in the captcha check for some time.

Perjury charges are very rare in criminal cases too. It isn't a very often prosecuted crime.

Well, statistically, every crime that doesn't involve drugs is probably a "rare" charge. But the question is whether perjury cases not involving an underlying indictment are highly unusual within the subset of perjury cases in general.

[Morat]

Perjury charges are very rare in criminal cases too. It isn't a very often prosecuted crime.

I would suspect that the mere threat of a prosecution for perjury or obstruction would convince the bulk of people to go ahead and cough up the truth, and thus rarely needs to be prosecuted.

Most people aren't rich lawyers with rich, powerful, and well-connected friends -- including a guy with the ultimate "Get Out of Jail" card.

[A.L.]

Sorry, Steve. Now I get it.

[br]

What is extremely unusual, for what it's worth, is to bring a perjury charge in connection with a deposition given in a civil case. That doesn't mean it's okay to do it, of course, but I've never encountered a single example in all my years of practicing law.

I apologize for being dense, but is that an oblique reference to the Clinton impeachment?

[Steve]

I apologize for being dense, but is that an oblique reference to the Clinton impeachment?

Yes it is. I'm not saying what Clinton did was okay, of course, but simply that people sit there and lie in my depositions all the time and the idea that they would ever be prosecuted is as ridiculous as they come. Even if I have ironclad evidence of the lie, the county prosecutor would never give me the time of day. That's just the reality.

[Sebastian Holsclaw]

"Even if I have ironclad evidence of the lie, the county prosecutor would never give me the time of day. That's just the reality."

Right, and that is true of criminal charges too. Perjury is only very rarely prosecuted. I would tend to argue that it is underprosecuted so I'm not particularly worried about Libby.

[Ara]

People who advance arguments this stupid simply can't be trusted to think straight when an issue challenges their loyalties, whether those loyalties be interpersonal (to Libby) or intrapersonal (to being the middlist).

The right-wing line is that the sentence was excessive. How does a recommendation of total commutation follow from this? Bush didn't commute it to 16 or 13 or 6 months, something he might think were more reasonable. He commuted it to *NOTHING*. So I suppose an overnight jail spell is just too excessive for a person who tries to sabotage a federal investigation.

[Steve]

I think you're obfuscating, Seb.

We all understand that the percentage of perjury charges filed, compared to the number of lies told under oath, is a low number.

The question is, if you lie under oath in the course of a criminal investigation, is it substantially more unlikely that you'll be prosecuted if no underlying charges are ultimately filed?

If we looked at the roster of perjury charges filed in the last year, would we find that virtually none of them involve cases where the underlying charges were not brought?

Or would we find, as I suspect, that it makes no difference whether the underlying crime is prosecuted or not? That you're equally likely to be charged with perjury in either case?

[Anderson]

Okay, so Brendan Nyhan is stupid. Does that really merit a thread?

[aimai]

man, I just had this argument with on of the guys working on myhouse. Its really true that a lie can go halfway around the world before the truth gets its boots on. He, too, parrotted this line that the whole thing is ok because "bush has the power to pardon" and anyway "clinton pardoned a lot of people." I couldn't seem to get him to think through the simple fact that just because a thing is legal (the pardon) doesn't mean its right, moral, or necessary. Next time I go back I'm going to point out that

Its legal for Dick Cheney to go hunting birds with his gun

but its not a good idea for him to
shoot his friend in the face.

and see if I can get him to see the difference.

aimai

[OCSteve]

Must… resist… more plame…
Not… gonna… do it…

Ahh. Almost had me there for a minute.

[Doran Williams]

Publius, while Fitz may not be able to elicit additional testimoney from Libby by offering some form of relaxation of the sentence (Can the prosecutor even do that?), I am not satisfied that Libby is completely lost to Fitz, or to another U.S. Attorney or a Congressional investigation. Say a Congressional investigation is launched into some of the apparent illegalities of the Vice President's behavior. Libby is subpoened as a witness. He asserts the Fifth Amendment right to refuse to incriminate himself. Congress grants him some form of immunity; he has to testify. The grant of immunity would have no effect on his recent conviction; it is final. If not legally sound, it will be reversed. He would then have no reason to assert the Fifth, anyway. If he lies again, then he gets prosecuted and/or a pardon. But in the meantime, the investigation would proceed. Why wouldn't something along these lines be feasible?

[adam]

publius, I've been trawling Lexis all day, to no avail, so I want to ask you or anyone else who might know: do you know of any precedent limiting the pardon power besides ongoing impeachment or interference in a civil matter?

[publius]

irrelevant

[Becky]

This kind of nonsense is why I quit reading Spinsanity years ago. He's not a hack, but he's a leading practitioner of High Broderism: Both sides must always be found to be equally at fault, the facts be damned. This kind of false equivalence, precisely because it sounds so reasonable, in some ways is even more damaging to our system than the worst GOP hackery: It consistently lets them off the hook for their distortions, lies, and crimes.

[gwangung]

This kind of nonsense is why I quit reading Spinsanity years ago. He's not a hack, but he's a leading practitioner of High Broderism: Both sides must always be found to be equally at fault, the facts be damned. This kind of false equivalence, precisely because it sounds so reasonable, in some ways is even more damaging to our system than the worst GOP hackery:

In a lot of ways, it's just not thinking. It's not evaluating either side; it's just a reflex action.

There are just some cases where "splitting the difference" just isn't appropriate. Science is once of those areas--there ain't no middle road between creationism and evolution. And this, right here, is another.

[adam]

irrelevant

OK, publius, how about explaining the distinction between mooting a Special Prosecutor's sentence and withholding evidence relevant to his investigation? If the latter is unacceptable under U.S. v. Nixon because of a delegated, vested, unrevoked Executive power that exists in both cases, by what reasoning do you distinguish the Libby case?

[Sebastian Holsclaw]

I think you're obfuscating, Seb.

We all understand that the percentage of perjury charges filed, compared to the number of lies told under oath, is a low number.

The question is, if you lie under oath in the course of a criminal investigation, is it substantially more unlikely that you'll be prosecuted if no underlying charges are ultimately filed?

If we looked at the roster of perjury charges filed in the last year, would we find that virtually none of them involve cases where the underlying charges were not brought?

Since my actual thought is that perjury is woefully underprosecuted, that Libby should go to jail, that the commutation is ridiculous, and that it would be good if perjury were much more often pursued, I can't understand what you think I'm obfuscating.

But to the specifics of your question, I strongly doubt we'd find many perjury cases actually prosecuted where no underlying charge was brought against anyone.

I don't see anything wrong with noting that this case (which is extraordinary in lots of particulars--involving high level public servants, and national security issues for example) might be important enough to go against the current norm. Why do we have to pretend that it completely routine to prosecute for pejury? It isn't. It should be, but it isn't.

[Sebastian Holsclaw]

And to be clear, if prosecuting for clear perjury became much more routine, I'd be thrilled.

[LizardBreath]

Why do we have to pretend that it completely routine to prosecute for pejury? It isn't. It should be, but it isn't.

AFAIK, this is absolutely true. I'm not sure about how common it should be to prosecute for perjury (that is, in civil cases I see witnesses lie like rugs all the time. It's actually very difficult to persuade witnesses on your own side of a case that you aren't advising them to lie -- that there's no 'nudge nudge, wink wink' in your instructions to just tell the truth) because you'd end up prosecuting a ridiculous number of people. But it certainly isn't commonly prosecuted.

I can't see how the accusation that SH was obfuscating makes sense at all.

[Steve]

I didn't say it was routine to prosecute for perjury. I just don't think whether an underlying charge was filed has very much to do with it at all. That's my opinion, and I'd be interested to see any empirical evidence on the subject.

The reason I said Seb was obfuscating is that the issue was not the rarity of perjury charges in general, but the rarity of perjury charges with no underlying indictment as compared to the rarity of perjury charges in general.

If you want to argue that perjury charges without an underlying indictment are rare, simply because perjury in general is rare, then you're making no point at all. It's like saying perjury charges against someone named "Scooter" are rare.

If there are 100 perjury prosecutions a year, and 50 of them don't involve any underlying criminal indictment, then I think it's nonsensical to argue that perjury charges without an indictment are rare, even though yes, there are only 50 per year. On the other hand, if only 5 of the 100 fit into that category, then I'd concede the point.

My belief is that perjury in the course of a criminal investigation gets prosecuted based upon a number of factors, along the lines of those Seb listed, including the importance of the investigation. But I doubt "whether charges were ultimately filed" is a major factor.

In this regard, I'd also note that the argument that there was "no underlying crime" in the Plame matter largely hinged upon a technical issue - did she serve overseas within the last 5 years? If you obstruct an investigation, but the underlying charges ultimately aren't brought for a highly technical reason, I don't see why that would help get you off the hook. On the other hand, if you obstruct a murder investigation, but then the victim turns up alive and everyone goes home, I can understand the authorities no longer being concerned about your obstruction.

[Sebastian Holsclaw]

"But I doubt "whether charges were ultimately filed" is a major factor."

I strongly disagree. I suspect that for perjury in criminal cases (and frankly perjury charges in civil cases are so rare we can almost discount them entirely--though I wish that wasn't true) the perjury case will almost never happen unless the underlying charge is also prosecuted.

I don't know if I'd care to guess too much about the minds of a prosecutor to state that it was "a major factor" in the causation sense. But I strongly suspect that from a statistically correlated sense, going after the underlying crime is highly correlated to perjury prosecutions.