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Headline: Pardon Libby
Source: NY Sun
Byline: Editorial
Dateline: October 31, 2005
What do I. Lewis Libby, the White House aide who was indicted on Friday in a case involving the leak of a CIA officer's identity, and Martha Stewart, the lifestyle guru specializing in pies and pillows, have in common? Both were charged under a federal statute that is dangerously broad. There's a popular misconception that Stewart was involved in insider trading and that Mr. Libby was involved in leaking the name of Valerie Plame. But neither Mr. Libby nor Stewart were charged with those underlying crimes. The federal criminal charges in both cases were brought at least partly under Title 18, Section 1001 of the United States Code. That provides for a fine or up to five years in prison for anyone who "knowingly and willfully" makes any materially false statement or representation "in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States."
So Mr. Libby's indictment sent us scrambling back to our copy of Justice Ginsburg's concurring opinion in the 1996 Supreme Court case Brogan v. United States, in which she warned of "the sweeping generality" of Section 1001's language. She wrote, "The prospect remains that an overzealous prosecutor or investigator - aware that a person has committed some suspicious acts, but unable to make a criminal case - will create a crime by surprising the suspect, asking about those acts, and receiving a false denial." She wrote, "the Department of Justice has long noted its reluctance to approve S1001 indictments for simple false denials made to investigators."
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