After the Verdict
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

So what does “Scooter” Libby ‘s conviction really mean?
Lawyers watch criminal trials the way basketball fanatics watch playoff games during March Madness — it is a sporting event for them albeit a blood sport to be sure. They focus obsessively on the styles and strategies of the star counsel on either side.
From this perspective, the straightforward, just-the-facts-ma’am, linear style of the special prosecutor, Patrick Fitzgerald, beat the smooth-as-silk, but emotional-on-cue style of the defense counsel, Ted Wells. It’s not unlike Dean Smith outcoaching Bobby Knight — two legendary NCAA coaches. It is reassuring, though, that a direct, simple approach can beat the wily tactics of the fox. Mr. Wells is the best criminal trial lawyer in New York, but that proved not to be enough when Mr. Fitzgerald assembled a sequence of multiple and reinforcing witnesses. White-collar defendants can afford the best lawyer money can buy, but they still may not win. In a democracy, though, that is reassuring.
That the jury deliberated for nearly 10 days is also reassuring. One would not want to see a rush to a verdict in a case this factually nuanced. This jury worked and did not implode.
From a civil libertarian perspective, the Libby trial never truly pushed the envelope of the substantive law the way recent prosecutions did of the former investment banker at Credit Suisse First Boston, Frank Quattrone, or the Merrill Lynch officers in the Enron “Nigerian barge” trial or the way that in the future, stock option backdating cases, such as the Brocade or Apple Computer investigations, may.
Instead, the Libby case was a trial about lying. To be sure, there were facts favoring both sides, but weighing those facts is what juries are for.
For students of white-collar crime, the case illustrates once again the Iron Law of White-Collar Crime: high-status defendants wind up convicted not for what they did originally, but for what they did after the investigation began. Think of Martha Stewart. She was suspected of insider trading, but she was convicted, just like Libby, for false statements and obstruction of justice.
Smart, clever people who have risen to the top via their skills of persuasion often believe that they can talk their way out of trouble. They may have done so many times before, but once the conversation with FBI agents and prosecutors begins, this is the wrong strategy and a self-defeating one. Nonetheless, history repeats itself, and the next major “white-collar” defendant probably will behave similarly.
For the White House, the Libby conviction darkens the growing shadow over Vice President Cheney. Libby’s initial lie was not about leaking Valerie Plame’s status as a CIA operative, but about who first told him that she worked for the CIA. He said Tim Russert first told him, but later conceded that it was his boss, the vice president. While memories can lapse, his now adjudicated “lie” protected Mr. Cheney. Democrats will see this as a familiar pattern: a cover-up within a White House that is hypersensitive to criticism and suspicious of the press. No, it is not yet Watergate, or even close. But the White House has no margin for error remaining.
For those with misgivings about the institution of the special prosecutor, this case may be decisive. It shows, once again, that a determined prosecutor can find someone who lied in almost any major scandal and can convict him. Although Mr. Fitzgerald proved far more talented than some of his predecessors, critics will still view the intensity of his efforts as disproportionate to the gravity of the underlying scandal. Here, the debate will continue, as liberals in turn do see the scandal as serious and involving an attempt to retaliate against Joseph Wilson for his implicit criticisms of the White House. But few should expect that more special prosecutors will be appointed in such cases.
Finally, high-profile trials have regularly mushroomed throughout American history into public dramas that reveal deeper, underlying tensions within society: Aaron Burr, John Brown, the Rosenbergs, O.J. Simpson — these cases transcended issues of guilt or innocence. As my Columbia Law colleague Robert Ferguson has shown in a recently published book on trials in American life, these cases became polarizing forces that compelled citizens to choose which side they were on.
Whether the Libby perjury trial will have the impact of the Alger Hiss perjury case over a half-century ago, which launched Richard Nixon’s career, remains to be seen. But that is precisely the point — its meaning has yet to be determined, and it will be a political process in which the public decides.
Mr. Coffee is the Adolf A. Berle Professor of Law at Columbia University’s Law School and director of its Center on Corporate Governance.

