I would like to correct three of the more egregious misrepresentations in Hitchens' 'Free Scooter' article.

First, Hitchens is wrong to imply, as he does in his first sentence, that the guilty verdict in the Libby case was based solely on inconsistencies between Libby's and Russert's recollections of their July 10 conversation. On the contrary, it is certainly possible that Libby would have been convicted even without Russert's testimony. Libby's statement under oath to the grand jury that he learned about Valerie Plame's CIA employment status from Russert on July 10 or 11 was contradicted not just by Russert but also by five senior government officials who testified at the trial that they discussed Plame with Libby prior to July 10. To wit:

1) Cheney press aide Cathie Martin testified that "before July 6", Libby asked her to get information from the CIA about Wilson's Africa trip. Martin went to CIA press officer Bill Harlow, who told her that Wilson's wife worked for the CIA. Martin passed this information on to Libby and Cheney that same day.

2) Undersecretary of State Marc Grossman testified that, in response to a May 29 inquiry from Libby about Wilson's Africa trip, he told Libby on June 11 that Wilson's wife worked for the CIA.

3) CIA officer Robert Grenier testified that, in response to a query from Libby, he told Libby on June 11 that Plame worked for the CIA.

4) CIA officer Craig Schmall testifed that his briefing notes indicate that Libby asked him about "Valerie Wilson" on June 14.

5) White House Press Secretary Ari Fleischer testified that Libby told him about Plame on July 7.

Second, Hitchens is incorrect when he states that "the jury found for Libby on the Cooper count." There were two counts, counts 3 and 5, that dealt with Libby's July 12 conversation with Matt Cooper. Although Libby was found not guilty of count 3 (lying to the FBI), he was found guilty of count 5 (lying to the grand jury) about the Cooper conversation.

And third, Hitchens is wrong when he says that "Patrick Fitzgerald determined that the law [the Intelligence Identities Protection Act] had not been broken." In fact, during the press conference at which Fitzgerald announced Libby's indictment, he compared obstruction of justice to what happens when an "umpire gets sand thrown in his eyes," implying that Libby's actions prevented investigators from determining the truth of whether the law had been broken or not.

I hope that Slate will append these corrections to Hitchens' article.

Fair enough, they soound like pretty valid corrections to me. Saying that, Hitchens is right to say that sarcasm from a judge is generally pretty unedifying, and that in this case it could give the impression that the judge in question had a unreasonable beef with the defendent.

Isn't the third point the key? Fitzgerald knew that Armitage, not Libby or Cheney was the leaker. Armitage "confessed" at the outset of the investigation. What was Fitzgerald doing after that? Also, obstruction of justice has nothing to do with the Intelligence Identities Protection Act. Plame's name was leaked. If leaking it was a crime, Armitage should have been indicted. No indictment; no crime.

Another neocon talking point is to keep referring to Armitage as "the" leaker. Then they can say: hey, the leaker was a war critic, so there wasn't a war-selling conspiracy here. There were lots of leakers. Armitage (and Rove) happened to be the ones leaking to one specific journalist in one case that became especially salient.

Nobody was indicted for the leak because intent is hard to prove, and in Fitzgerald's judgement he didn't have enough to prove it, though it seems to me anyone with an ounce of common sense can see exactly what was going on. The systematic obstruction of justice by Libby, among others, contributed to the inability to prove intent.

A Bush-appointed prosecutor, a Bush appointed judge, and a jury that was voir-dired by Libby's lawyers thought Libby was guilty. If things were as trivial as the Libby chorus keep asserting, the conviction would never happened, but it did.

Seems a lot of folks knew who Valerie Plame was. Undersecretary of State???!

Armitage "confessed"! It doesn't get any better for a prosecutor than that, unless, oops, the confession wasn't to a crime. A conspiracy to commit a non-criminal act isn't illegal either.

the sarcasm is directed at the law professors, not the defendant. Though the judge certainly did not have much sympathy for Libby during sentencing (undoubtedly due to his lack of contrition for committing a crime, the evidence of which was overwhelming), the sarcasm does not have anything to do with the defendant. the main reason why the judge felt the need for the sarcasm was the speed with which the professors put out the brief, in an attempt to help Scooter avoid jail time. See, they did not put out the brief before sentencing, they did it before Scooter's request to stay free pending appeal. The reason was to (hopefully) interject an issue that may sway the judge that the conviction would not stand up on appeal, and therefore he should not be incarcerated. After all, the profs don't argue that the independent prosecutor statute is unconstitutional, merely that it is a "close call." The purpose of this filing is to avoid jail time for Scooter. If they are really concerned with the constitutionality of the independent prosecutor statute, they will file an amicus brief in the appellate court (which I believe they will). However, in a normal criminal case, profs wait until the appeal is docketed, and then ask to file the brief. Supposedly, the profs don't necessarily care about the individual defendant, just the law. The timing of the tiny brief is what got the judge's goat (rightfully). At this point, it won't help Scooter avoid prosecution, nor will it allow the judge to throw out the case in a pre-trial hearing on a procedure issue. Instead, its just there to make the judge think Scooter should be given a pass on the big house until the Circuit Court rules. He, naturally, finds it offensive and ridiculous, as there are literally thousands of criminal each year claiming constitutional procedural violations, and law professors don't often step up to help them, and most certainly don't help them until the appellate court, and never file a brief, post-sentencing, pre-determination of incarceration on appeal. The sarcasm was not only called for, but refreshing to see. And it has absolutely, positively nothing to do with Scooter Libby or the actual merits of the case or the procedural errors he has made.

Libby wasn't convicted of conspiracy. He was convicted of obstruction and perjury. the evidence was overwhelming.