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Scooter Libby, Vice President Cheney's former chief of staff, was recently convicted of lying to the government--a grand jury and the FBI--in the midst of an investigation about the deliberate "outing" of a CIA agent whose husband had publicly criticized the Bush administration. The conviction raises--again--the issue of the propriety of criminalizing inaccurate statements to investigators.

While clearly inappropriate, lying to the government is prevalent in this country. Since Watergate, "cover-up" crimes have often captured the national spotlight. The Nixon White House (lying about a third-degree burglary), Oliver North (lying about Iran-Contra), Arthur Andersen (destroying documents), Martha Stewart (lying about insider stock trading), Bill Clinton (lying about sex) and Barry Bonds (lying about steroids) all were or are targets, not of the substantive crime in question, but of deceit during the investigation. The government could not make the substantive crime stick, so it pursued the lesser evil of "you lied."

Is it necessary or important to criminalize lying? Of course. Our justice system depends upon the honest testimony of witnesses at trial. Fortunately, personal morals, aided by the solemnity of the sworn oath taken by all witnesses, almost always results in truthful testimony, or at least the good faith attempt at something reasonably close. There are those witnesses who, despite the oath, lie deliberately. But they are few and far between.

As I read recently, there are more convictions each year for migratory bird violations than perjury. Part of the reason for this is that a perjury conviction requires not just an untruthful statement but credible proof that it was deliberately untruthful--a subjective state of mind very difficult to prove beyond a reasonable doubt.

The case against Libby, however, had nothing to do with lying in court. He was charged with lying to the FBI during an interview and to an investigating grand jury (not a trial but a secret process used by the prosecutor). Should these statements, if untrue, be criminalized? There is a sound argument that investigation of serious offenses should not be stymied by the deliberate lies of those being investigated. Only the threat of a perjury prosecution deters such lies.

On the other hand, our Constitution guarantees individuals the protection against self-incrimination--"taking the Fifth"--to avoid answering questions that might tend to incriminate. If we, as a society, are comfortable with being unable to force testimony from a criminal suspect, it seems a bit of a paradox that we criminalize those who do answer questions but perhaps get it wrong--deliberately or not.

Which brings us back to Scooter Libby. I worked with Scooter when we were young lawyers in a large Philadelphia law firm almost 30 years ago. In fact, we traveled and worked together in New Orleans for several months on a shipbuilding case. I remember Scooter as personable, friendly and terribly bright, and I am sad and disappointed that he was convicted.

While I believe the jury got it right, I share their sentiments that Libby was set up to be the "fall guy" for more senior, culpable administration individuals, and that Libby should be pardoned.

PHILIP KIRCHER is co-chairman of the commercial litigation department at the law firm of Cozen O'Connor.

April 15, 2007

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