Libby and BergerMike Rappaport

I haven’t followed the Libby trial that closely, but one aspect of the verdict did occur to me: How is it that Scooter Libby is facing jail time and Sandy Berger got off with a slap of the wrist.  At least part of the answer is that Libby was investigated by a special prosecutor, while Berger was not.   My guess is that there is more to the story of Berger as well (incompetence at Justice?)

Charles Krauthammer points out some other irksome aspects of the trial as well:

And why should they not? Russert is a perfectly honest man who would not lie. He was undoubtedly giving his best recollection.

Buthe is not the pope. Given that so many journalists and administrationfigures were shown to have extremely fallible memories, is it possiblethat Russert’s memory could have been faulty?

I have no idea. But we do know that Russert once denied calling up a Buffalo Newsreporter to complain about a story. Russert later apologized for theerror when he was shown the evidence of a call he had genuinely andcompletely forgotten.

There is a second instance of Russertinnocently misremembering. He stated under oath that he did not knowthat one may not be accompanied by a lawyer to a grand jury hearing.This fact, in and of itself, is irrelevant to the case, except that, asformer prosecutor Victoria Toensing points out, the defense had tapesshowing Russert saying on television three times that lawyers arebarred from grand jury proceedings.

This demonstration ofRussert’s fallibility was never shown to the jury. The judge did notallow it. He was upset with the defense because it would not put Libbyon the stand his perfect Fifth Amendment right after hinting in theopening statement that it might. He therefore denied the defense astraightforward demonstration of the fallibility of the witness whosetestimony was most decisive.

Toensing thinks this might be thebasis for overturning the verdict upon appeal. I hope so. This is acase that never should have been brought, originating in the scandalthat never was, in search of a crime violation of the IntelligenceIdentities Protection Act that even the prosecutor never alleged.