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Remember The Rule Of Law?

And why should they not? Russert is a perfectly honest man who would not lie. He was undoubtedly giving his best recollection. But he is not the pope. Given that so many journalists and administration figures were shown to have extremely fallible memories, is it possible that Russert’s memory could have been faulty? ~Charles Krauthammer […]

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

But he is not the pope. Given that so many journalists and administration figures were shown to have extremely fallible memories, is it possible that Russert’s memory could have been faulty? ~Charles Krauthammer

Tim Russert will be shocked to learn that he is not the Pope–how did that happen?  (Only Krauthammer could make a bad column worse by inserting a totally erroneous understanding of papal infallibility into a discussion of perjury!)

Now I’m not a journalist, a White House press secretary or the Vice President’s chief of staff, so I can’t say that I know what it is like to do the jobs that they do.  Maybe they talk to so many people about so many things that it is impossible to keep it all straight, and it is possible that witnesses will have faulty memories and forget things or remember them incorrectly.  I’m going to assume that the jurors were capable of grasping this rather obvious idea, because, apparently unlike Libby’s apologists, I do not regard them as certified morons.  Krauthammer’s entire article rests on the assumption that the jurors never considered the possibility that the witnesses had poor memories and that he is somehow doing everyone a great favour by pointing out what would have occurred to anyone sitting on that jury.  Perhaps the jury factored in exactly what Krauthammer is saying and still believed that Libby knowingly made false statements under oath.  To kick up the epistemological puzzle a notch, how does Krauthammer know that they didn’t already take this into account?    

Let’s suppose, then, that the jury deliberated and reached its verdict as if they were also capable of understanding the most basic potential problems of witness testimony.  Let us suppose that they were, in fact, minimally competent at their task.  Let us suppose that they were at least as insightful as Charles Krauthammer (not a high standard to meet, I grant you).  If they were, I find it difficult to believe that they convicted a man on four counts because they were working under the delusion that Tim Russert has perfect recall and had never considered the possibility that witnesses could misremember.  What Krauthammer is talking about are all the reasons why one might reasonably doubt that Libby knowingly lied under oath.  The jury weighed the testimony and apparently decided that these and other reservations did not introduce enough doubt into the matter.  That’s how it works.  If we applied the Krauthammer test (busy people can’t possibly remember minute specifics of time, place and subject of conversation) to criminal prosecutions, it would probably be quite shocking how many convictions based on witness testimony would be overturned.  Probably not even Krauthammer would want to go down that road, so why is there such a concerted effort to undermine the legitimacy of this verdict?  (Of course, we all know why there is such a concerted effort, but how can it begin to be squared with a commitment to the rule of law?)

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