Telling the Truth and Scooter Libby

David Walser at the Volokh Conspiracy makes an compelling argument...

Two aspects of the Libby trial have always bothered me: First is the oft' repeated wisdom that Libby wouldn't have been in trouble "if he'd just told the truth." This dismisses Libby's actual defense of his actions -- that what he told investigators and the Grand Jury was consistent with what believed to be true at the time he said it. The advice to "simply tell the truth" is useless to a person whose memory is playing him false. If someone believes "x" is true, when in fact "x" is false, telling them to tell the truth is of no avail. He or she will simply say "x", believing they are doing exactly as you instructed.

Second is the fact the judge prevented Libby from presenting expert testimony in support of his claim that his inaccurate statements were due to memory error. The judge ruled the expert testimony inadmissible because it covered a topic, memory lapses, with which the members of the jury were intimately familiar by virtue of there everyday life. This ruling seems to ignore that the expert was not going to testify just about the types of memory failure to which we are all subject but to the fact that most members of the public dramatically overestimate the reliability of their own and others' memory. In other words, the expert was going to show that the jury members' everyday experience did NOT equip them to judge whether Libby's claims of memory failure were accurate or not.

Did Libby intentionally mislead investigators? I don't know. I do find his claim of memory failure plausible. Were it not for three experiences I had at the time of the Plame controversy (both pre-trial and during the trial), I would most likely be counted among the crowd tisking "He should have just told the truth."

The first of these experiences relates to a series of conversations I had with another member of my firm. I'm a tax professional and, in that context, was asked to review a trust document. After reviewing the document, I discussed it at length with my peer. About two weeks after that conversation, my peer asked me a follow up question by showing me a copy of the trust document and pointing to one of its provisions. I swore that I had never seen the document in my life and that we had never discussed it before. My peer was quite perplexed and assured me we had discussed the document -- over lunch! I was certain he was wrong and would still be of that opinion had I not found my review copy -- complete with my notes in the margins. Even with the help of those margin notes, in my handwriting, I still have no recollection of reviewing the document or discussing it. It's as if someone else wrote those comments.

The second experience concerns my recounting a funny experience I'd had at a business dinner. In my tellingy, my wife and I had gone to dinner with a group of other professionals and their spouses. I told the story, in the presence of my wife, to my sister and her husband. My wife said she'd never attended such a dinner. I assured her she had and even reminded her of a clever and witty remark she had made. At that point, my sister spoke up. She had attended the dinner in my wife's absence. It had been my sister, not my wife, who'd made the witty remark. Again, despite all the evidence to the contrary, my memory is still of my wife attending the dinner. Somehow my memory has put the words of my sister into my wife's mouth.

Third, I was asked to appear before a Grand Jury as a witness. A law firm had approached one of my clients about a tax strategy the government considered fraudulent. My client, on my advice, had not pursued the transaction; and I was there to explain why we had advised against the deal. In preparing for my time before the Grand Jury, I had the privilege of being questioned by members of the prosecutor's staff for a couple of days. Towards the end of the 1st day of questioning, I was asked about an entirely different transaction entered into by an entirely different client who was assisted by this same law firm. I was shown a copy of a tax opinion from the law firm addressed to my client and asked if I had ever read it. I confidently answered that I had and, in response to further questions, declared that I'd seen the opinion in draft form and had helped ensure the factual representations in the opinion were accurate. I was then asked to read certain of those factual representations and tell them whether or not I thought they were accurate. It was if I had never seen them before in my life! Some of the factual representations were, to my mind, total fabrications and misrepresented what had happened. My attorney asked permission for us to consult in the hall. He told me to quit talking out of both sides of my mouth and to just tell the truth. I told him I was telling the truth!

Except, I wasn't. That night, I reviewed my files and found a note I had written. At the last moment, the law firm had refused to allow me to see the draft and the final version of the opinion. They released it to the client only on condition I not be allowed to see it. I had been furious. My anger indelibly seared the events into my memory. Yet, a few years later, under questioning from law enforcement officers, I gave false and misleading answers to questions about those events. Were it not for my file note, I would not have been able to correct my honest errors the next day.

Despite these three experiences, I'm known as someone with an exceptionally fine memory. Were it not for outside evidences, I'd still believe I had read something I had not read, that I had not read something I had read, and that I had witnessed my wife say something someone else had said. In each case, I was absolutely certain my memory was correct and I would have bet my life on the accuracy of my recollection. Had it not been for these events happening around the time of the Libby trial, I'd probably not remember these memory lapses today. As a consequence, I'd be more than willing to convict someone of perjury when their testimony is clearly contradicted by outside evidences.