It is interesting how the Justice Department "keeps score" in criminal investigations. I read the indictment of Scooter Libby this morning and discovered that saying essentially the same things can result in a number of different crimes. Lying to the FBI can get you an indictment for making false statements. You can refuse to answer questions asked of you by the FBI thanks to the Fifth Amendment, but if you do choose to answer such questions you better tell the truth. If you get called to testify before a grand jury, you must swear to tell the truth, but as in the case of being interrogated by agents of the FBI, you can choose not to answer questions that might tend to incriminate you, but if you do answer them, you must tell the truth.
Scooter Libby was basically forced by his boss, George Bush, to answer any questions the FBI chose to ask him and to answer questions asked by the prosecutor or jurors when he testified before the grand jury. He didn't have the option of being a Fifth Amendment Crook. As a result, he got himself indicted and if you read the indictment, you will agree with me, I believe, that he stands a 99% chance of being convicted because his statements deviated from the truth by a very large margin.
What interests me here is the fact that making essentially the same false claims can get you indicted for "making false statements," "perjury," and "obstruction of justice." Since he is charged with two counts of making false statements and perjury and the different counts involve the same lies, we could argue that that the prosecutor managed, if I may be permitted a baseball analogy, to get three outs (types of charges) with just two pitches (two different lies). There is something about this that strikes me as unfair.
The fact is that it matters in how we go about using language who we are talking to. We tend to use more formal speech when talking to our bosses than our underlings and use more formal speech (by, say, banishing slang) with strangers than close friends. We can also use less polite speech forms (omitting "please" from requests, for instance) with our inferiors or our close friends than our bosses or strangers without giving offense. And, if we control more than one dialect (as many educated African Americans do), we tend to use the dialect we learned early in life with family, friends, and others in the community we grew up in, and more standard forms in our business dealings with the wider community. So, clearly, who we are talking to matters a great deal in our deciding how to say what we say. However, the idea that we can choose to tell the truth to certain people but not others is not widely approved even though we do tell so-called "white lies" to avoid revealing uncomfortable truths. Few young women will tell their grandmothers they are not virgins if asked even if they aren't. This would normally be an acceptable lie. Nevertheless, with the exception of contexts in which telling "white lies" is an acceptable practice, we do not normally think that it is okay to, say, lie to our bosses or strangers and reserve the truth for underlings and friends.
As the philosopher David Lewis noted in his book Convention there exists a convention of truthfulness we are all expected to abide by for if we routinely flouted it language would cease to be useful and surely cease to exist. Without this convention, there would be little point to communication. Imagine an army company that sends out scouts to find concentrations of enemy forces who come back and tell the truth about what they have seen only half the time. None of us would want to be in that company.
Cal Thomas, who, it seems to me, may be brain dead has columnized (if I may be permitted to compose a new word for your consideration) today that the prosecutor in the Libby case is politically motivated and that Libby shouldn't be prosecuted for lapses of memory. Interestingly, in today's Columbus Dispatch, the editor placed a column by NY Times reporter, Nicholas Kristof, under Mr. Thomas's column in which it is noted that the nature of the discrepancies between what Libby says happened in conversations with reporters and what they say happened are much too great to be mere memory lapses. I agree with Kristof as will you, I think, if you read the indictment. Either three journalists are lying or Libby lied. There are no two ways about it.
I have already convicted Libby of this crime and hope he rots in prison, for outing a CIA operative is a very bad thing. As a result, I wouldn't be a good jury member. Unfortunately, the prosecutor can't prove beyond a reasonable doubt that Libby deliberately outed this agent so he is forced to move on to things he can prove, namely that Libby lied. However, I am a bit troubled that telling exactly the same lie to FBI agents and to a federal grand jury should be different crimes. It is true that if I rob two houses that are right next to each other I will be charged with two crimes. But note, in such a case, I didn't steal the same exact things. I would have stolen different things. This is why I am a bit disturbed by the Libby indictment. If he were being charged with one set of lies to the FBI and a wholly different set of lies to the grand jury, I could see two different charges.
And now we come to the obstruction of justice charge. What's up with that? You got it -- it was telling these same lies, the argument of the prosecutor being that Libby was engaged in a "corrupt endeavor" to
influence, obstruct and impede the due administration of justice, namely proceedings before Grand Jury 03-3, by misleading and deceiving the grand jury as to when, and the manner and means by which, LIBBY acquired and subsequentlydisclosed to the media information concerning the employment of Valerie Wilson by the CIA.Of course, Libby was trying to impede the prosecutor's effort to nail his butt to the wall quite deliberately. No one could tell whoppers like Libby did by accident. But all of that was done in defense of his personal butt, not, say, the butt of his boss, the Veep. Now, lying about what he and the Veep may have said to each other in regard to the outing of Plame would be an entirely different thing. But you know that will never be charged because you can be sure that he and the Veep got their stories straight and since they would have been the only parties to their conversations, no lying about them could ever be proved. I don't know that the Veep directed or encouraged Libby to tell these lies but I wasn't born yesterday.