Joseph S. Fulda

Joseph Fulda is a freelance writer living in New York City. He is the author of Eight Steps Towards Libertarianism.

There is a certain similarity between the superficially very different above-named persons' legal problems. In each particular case, there was an alleged predicate offense that did not take place, despite massive investigations. What did take place, in each case, is that during the course of these massive investigations the above-named persons made one or more statements that were not true.

This is entirely normal and should not be punishable by law. Why? Any human being exhaustively questioned by a clever attorney -- cleverness being the main selection criterion for attorneys -- will eventually say something false or contradict himself. This is human nature.

It is perhaps even truer when the exhaustively questioned person is innocent of the predicate offense and knows it. Because then panic sets in, and anger, and these very natural human reactions are not conducive to telling things exactly as they happened with perfect consistency.

Let us take these cases one by one. Mr. Clinton, first. As a matter of law, whether or not he did what Ms. Jones alleged -- the predicate offense -- unknown to all but him, Ms. Jones, and Almighty God, the judge ruled that regardless of the facts Ms. Jones had no cognizable cause of action under Arkansas law. But that is not the whole story, for at the time Mr. Clinton was deposed, the judge's future ruling was unknown. What was known, however, to Mr. Clinton is that nothing, absolutely nothing, that happened with Ms. Lewinsky had any bearing whatsoever on the contested scene in a hotel room years earlier. So, being human, knowing how unseemly his conduct with Ms. Lewinsky would look to many, and being the sort of man who abhors humiliating his wife publicly, he told a gentlemanly, but completely irrelevant, lie.

Professor Alan Dershowitz blames Mr. Clinton's then-attorney Robert Bennett for allowing this ridiculously overbroad inquiry into Mr. Clinton's sex life. Because the false answer was immaterial to the case at issue -- Ms. Jones' case -- as a matter of law it was not perjury, which requires that the lie be material. The judge in the case nevertheless, unhappy with Mr. Clinton's behavior, found him in contempt not for lying but for refusing to answer the questions put to him, a rather novel theory for a contempt holding when a perjury charge could not have been made to stick.

Mr. Bacanovic and Ms. Stewart, second. The broker and his client were, again as a matter of law, not insiders. An insider is someone who has direct internal knowledge that would affect the company's stock price. That was true of the executive of ImClone who had learned that the FDA intended to withhold approval for its most marketable commodity. Mr. Bacanovic was at one remove from being an insider; Ms. Stewart was at two removes from being an insider. The predicate offense -- insider trading -- was not even applicable to these two people. But they did benefit from someone who was an insider, and although anyone they sold the stock to had to have been in the market for the stock anyway and would have purchased it anyway, their behavior also appeared to many unseemly. They, too, panicked.

So they said this and that about why they sold their stock in ImClone, even though under the law they had the right to sell it for the reason they did, would have been foolish not to, and harmed absolutely nobody by the sale, as would have been the case had they, say, induced people not in the market for ImClone stock by suggesting this was a good buy. But they did not do that; there was no fraud, only panic.

Now let us come to Mr. Libby, third. The predicate offense -- the serious matter of revealing the identity of a covert agent of the CIA -- was known for three years by Mr. Fitzgerald to have not been committed at all. For the release of the identity of Ms. Plame was an unintentional slip by Mr. Armitage, and without intent that was not an offense at all. Moreover, Mr. Libby had nothing whatsoever to do with Mr. Armitage's slip. And nobody thinks or says otherwise. Whether Mr. Libby also panicked or was simply so exhaustively questioned as to be bound to produce some inconsistencies somewhere is beyond my knowledge. The jury didn't believe him. The judge said his guilt was clear. But to my mind it just doesn't matter, for there was no predicate offense.

Mr. Bush has shown the admirable quality, also shown by the late President Reagan, of virtually never dismissing his appointees and of standing by them in trouble. If he truly cares about Mr. Libby -- as he says he does -- but, for once, he also perhaps cares about the political consequences of what would otherwise be seen as a political pardon, he must articulate the above argument with exceptional clarity -- and he must do so by reading from a prepared text.

At the end of his address to the nation, he must announce that the President has no power to pardon a finding of civil contempt, but that Mr. Bacanovic, Ms. Stewart, and Mr. Libby are all pardoned forthwith because of the absence of a predicate offense. He must also announce that he will direct his U.S. Attorneys not to bring any further such charges during the remainder of his term in office, for the simple reason that such charges are unjust. Such a clearly bipartisan statement coupled with three nonpartisan pardons cannot cost Mr. Bush any political capital. But it can enhance his stature as a man of principle -- what he cherishes most about his image -- with the American people.

As this journal went to press, the President commuted Mr. Libby's sentence, without ruling out a future pardon. This is what he should have done -- and still can do. *

"Government is something like fire. Under control it is the most useful of servants; out of control it is a ravaging tyrant." --Clinton Possiter