“No crime”? Not so fast!

Maybe there was a crime, but not enough admissible evidence to convict.

When a prosecutor doesn’t indict, that might mean no crime was committed.

But it also might mean:

A. That a crime was committed, but there isn’t enough admissible evidence to prove it beyond reasonable doubt.

B. That a provable crime was committed, but by somone who is immune from prosecution by reason of office (the President probably can’t be indicted in federal court) or because of immunity given in return for testimony.

C. That a provable crime was committed by someone who can be indicted, but that it would be unjust or imprudent to bring a prosecution.

Based on Fitzgerald’s “umpire” analogy at his post-indictment press conference, my betting is on (A). Cheney is probably guilty of heading a conspiracy to violate the Espionage Act, but most of the evidence to prove it would be Libby’s testimony, and Libby’s multiple lies to the grand jury made it impossible to convict anyone based on Libby’s word.

If this is right, don’t expect to hear it from Fitzgerald. Prosecutors indict; they don’t tattle.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com