Friday, January 11, 2008

This Is a Federal Crime?

This is the National Public Radio lead on the Marion Jones story:
Track star Marion Jones was sentenced Friday to six months in prison for lying about using steroids, and two months concurrently for her role in a check-fraud scheme. The sentencing judge said Jones' punishment should send a message to athletes who cheat with performance-enhancing drugs.
Here's the lead:
Marion Jones, the record-breaking sprinter who tearfully confessed she used steroids after years of public denial, was sentenced to six months in prison for lying in two federal grand jury investigations.

Jones, 32, of Austin, Texas, pleaded guilty in October to two counts of obstruction of justice in probes of steroid use in sports and a check cashing scheme allegedly involving fellow athlete Tim Montgomery. The judge assailed her for deceiving fans about using banned substances and rejected a defense bid to avoid prison.
And here's how CTV (Canada's largest private TV network) begins the story:
Former Olympian Marion Jones was sentenced to six months in jail Friday after admitting she lied to investigators when questioned about her use of steroids and a cheque-fraud scheme.
You may want to go back and read those leads or, for that matter, the full articles again, for there's something fishy there. Very fishy.

Mike Lopresti over at USA Today describes it pretty well, though he doesn't catch what is wrong about Jones' prosecution and sentence:
Steroids will not put a sport legend in the slammer. Nor will HGH. Confirmed cheaters are often defrocked of glory and honor and — even more painful — commercial endorsements. But that won't open the cell door. Performance enhancement is usually not a ticket to the big house.

But lying can be.
Read that again. Jones was not charged, prosecuted, convicted, or sentenced because she cheated. All those things happened because when investigators asked her if she cheated, she said no, she didn't. Yes, she lied. Yes, that is wrong; she shouldn't have done that. But is it a federal offense? Should it be a federal offense to declare your innocence to an investigator who has not placed you under an oath to tell the truth?

This is only the latest big story like this. Remember Scooter Libby, jailed for the same reason. Here is Slate's Christopher Hitchens' description of that case:
  • Mr. Libby was not charged with breaking the Intelligence Identities Protection Act.
  • Nobody was ever charged with breaking that law, designed to shield the names of covert agents. Indeed, the prosecutor, Patrick Fitzgerald, determined that the law had not been broken in the first place.
  • The identity of the person who disclosed the name of Valerie Plame to Robert Novak—his name is Richard Armitage, incidentally—was known to those investigating the non-illegal leak before the full-dress inquiry began to grind its way through the system, incidentally imprisoning one reporter and consuming thousands of man hours of government time (and in time of war, at that).
  • In the other two "counts" in the case, both involving conversations with reporters (Judith Miller of the New York Times and Matthew Cooper of Time), Judge Reggie Walton threw out the Miller count while the jury found for Libby on the Cooper count.
  • The call to Russert was not about Plame in any case; it was a complaint from the vice president's office about Chris Matthews, who was felt by some to have been overstressing the Jewish names associated with the removal of Saddam Hussein. Russert was called in his capacity as bureau chief; any chitchat about Wilson and Plame was secondary.
  • The call was made after Robert Novak had put his fateful column (generated by Richard Armitage) on the wire, and after he had mentioned Plame's identity to Karl Rove.
  • The Washington Post quotes the judge who sentenced Libby:
    "My take on it," Walton said, is that the trial did not prove Libby knew that Plame worked in an undercover capacity when he disclosed her identity to several reporters. Still, the judge added, "anybody at that high-level position had a unique and special obligation before they said anything about anything associated with a national security agency [to] . . . make every conceivable effort" to verify their status before releasing information about them.

    "While there is no evidence that Mr. Libby knew what the situation was, he surely did not take any efforts to find out," Walton said. "I think public officials need to know if they are going to step over the line, there are going to be consequences. . . . [What Libby did] causes people to think our government does not work for them."
    Or think back to Martha Stewart's conviction -- the Feds questioned her about a suspicious stock sale, but ultimately there was nothing illegal about that sale.

    Three examples of prominent people spending time in the federal slammer, not because crimes were committed, but because when federal cops started asking questions, they didn't give the right answers.

    Jerry Pournelle near the end of today's Chaos Manor Mail reminds us of the real lesson here:
    never talk to any bureaucrat on or off the record without paying not only a lot of attention to what you are saying, but in the context that this is an enemy who is seeking to advance his career by jailing you. Alas, that applies to the FBI Agent investigating a real crime: cooperation with them can lead to disaster. I wish that were not true.

    There was a time when the police always assumed you were inaccurate, and the only time the perjury laws applied was when you were warned that you testified under penalty of perjury. You are not under penalty of perjury in a casual conversation with your friendly neighborhood government employee of any stripe.

    Martha Stewart was jailed for denying that she did something that wasn't a crime had she done it. I could add many examples.

    The judge in the Marion Jones case says he has imposed the maximum to "send a message." Think about the implications of being used as a horrible example to send a message.
    It's enough to remind one of a Benjamin Franklin quip that Congressman Ron Paul used in a 2000 address:
    At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a Mrs. Powel anxiously awaited the results, and as Benjamin Franklin emerged from the long task now finished, asked him directly: "Well Doctor, what have we got, a republic or a monarchy?"

    "A republic if you can keep it," responded Franklin.
    We're not keeping it well at all.