March 11, 2007

Begging the Biggie

Hatched by Dafydd

Beldar has put up a post, extensively excerpted by Patterico (who calls it "brilliant"), that does an excellent job of defending Special Counsel Patrick Fitzgerald from charges of legal incompetence: Beldar argues that Fitzgerald:

  • Had sound legal reason to haul Lewis Libby before the grand jury and give him the opportunity to repeat and expand upon his lies to the FBI in that setting;
  • Had sound legal reason to indict him for perjury and obstruction when he did so;
  • And exercised reasonable prosecutorial discretion in pursuing that indictment, in spite of the fact that he filed no other criminal charges related to the Plamegate probe.

But both miss the larger point, it seems to me: A Special Counsel does not exist in a vacuum; he is not an ordinary district attorney, as Patterico himself is. When Patterico investigates a charge of, say, assault, he is doing so as a normal part of his day-to-day job: He and his colleagues are always the people who investigate charges of assault in the normal course of events.

But naming a Special Counsel is primarily a political, not a legal action -- for two reasons:

  • Because he is invariably appointed in order to investigate a political scandal: Plamegate, Whitewater, the Iran-Contra scandal. This makes it a highly-charged political event whenever a Special Counsel is named, riveting the nation's attention on the legal implications of a political donnybrook. No Special Counsel would have been named to investigate a charge that Libby cheated on his income taxes or was using illicit drugs in the White House; there is nothing political about that claim.
  • And most particularly, because naming a Special Counsel announces to the entire country -- indeed the entire world -- that the Justice Department itself is implicated in this scandal, hence cannot be trusted to undertake the investigation itself. That also makes it a higly political event.

Both Patterico and Beldar are "thinking like lawyers," to quote the Paper Chase... which makes perfect sense, as they are both lawyers, of course: an assistant district attorney and a crusty, old trial lawyer. But I think they're allowing their legal brains to seize control from their ordinary citizens' brains, and that's an occupational hazard they should recognize.

There is a sense in which Patrick Fitzgerald may have been woefully inadequate to this task: Not only has he failed to fully explain what did happen in the Plame name blame game, he also made a comment during the final arguments that politically implicated the Vice President Cheney... without actually presenting evidence that he did anything wrong.

Let's take the first charge first...

Where is the final report?

Fitzgerald conducted a lengthy inquiry into the critical question of whether there was an organized conspiracy among senior administration officials to "out Valerie Plame," as many have put it; but he finally decided to file no charges on this point. I say Patrick Fitzgerald has a duty to the nation to explain exactly why and why not.

His job is not the same as a regular DA, who is under no obligation to explain why he doesn't file charges against a private citizen suspected of assault or robbery. Fitzgerald was a Special Counsel, and special rules should apply... not as a legal matter but as a political matter, in keeping with the essentially political act of the appointment of a Special Counsel.

Now, there is one caveat: He clearly cannot reveal grand-jury testimony; Rule 6(e)(2)(B) of the Federal Rules of Criminal Procedure prohibit it, and a special counsel has no countervailing legal authority to do so -- unlike the old Independent Counsel, who I believe was granted statutory authority under the IC law, unless I'm misremembering, to issue a final report, in which he could include such grand-jury testimony as he saw fit.

I don't know just how broad a shield this is. Presumably it wouldn't cover anything that Fitzgerald uncovered in his investigation that he never presented to the grand jury in the first place, as that would not be "a matter occurring before the grand jury." But does it prohibit disclosure of the results of his independent investigation that he later brought before the grand jury, assuming he doesn't specifically quote from any grand-jury testimony?

Suppose, in the course of that investigation, he discovered that Plame was not covered by the Intelligence Identities Protection Act (IIPA); I presume that if he never brought this fact up to the grand jury, he could publish it later. But suppose he did bring it up -- just to say that she wasn't covered, so he wasn't going to talk about it. Is that enough to prevent him from ever telling us that she wasn't covered by the IIPA?

Fitzgerald himself has shown a great willingness in the past to discuss what he knows and does not know due to his investigation, as he did repeatedly in his press conference of October 28th, 2005. But everything he said there was also mentioned in the indictment, which of course must be public.

But some things in the indictment were odd, to say the least: Both in the indictment and in the presser linked above, Fitzgerald makes a big point about her employment being "classified" when Libby revealed it (he does not mention what level of classification).

Yet he never charged Libby (or anyone) with intentionally revealing classified information. Thus, we are left simply with the logical conclusion that he did not believe he could prove in court that Libby knew it was classified... but if so, what is the point of even mentioning it, and of mention it so prominently?

Having come this far and cast this much inuendo, he should at least, then, answer the following questions... excepting those that would be prohibited by grand-jury secrecy rules:

  • Was Valerie Plame a covered person under the IIPA? This is a simple matter of record-keeping that shouldn't require violating the seal.
  • Did anyone acquire knowledge of Plame's CIA employment via the legal channels required for a prosecution under that act? He doesn't have to reveal testimony here, he can simply answer yes or no.
  • Was Plame's affiliation with the CIA actually classified, as Fitzgerald claimed in the 2005 press conference linked above? Did anyone who revealed it actually know it was classified? Was there evidence that anyone intentionally revealed classified information? Was there any other way to discover her employment other than through authorized, classified channels -- for example, was it discussed at Washington cocktail parties? Did any official first find out about her CIA employment from reporters?

    Since Fitzgerald such a point of mentioning that her employment was classified, but then failed to charge anyone with revealing classified information, the American people are right to be suspicious.

  • Did Fitzgerald choose not even to attempt to get an indictment from the grand jury related to the revelation of Plame's employment? And if so, did he do so because he believed no violation of the Act and no deliberate revelation of classified material occurred -- or just because he did not believe he had sufficient evidence against anyone to secure a conviction?
  • Was there any evidence that members of the Bush administration were trying to destroy Joe Wilson through his wife -- the main allegation -- or did it appear they were only trying to rebut charges that Wilson himself made? For example, was there any memo or other document urging retaliation that went beyond rebutting Wilson's allegations?
  • Was Ms. Plame's career damaged? Is there evidence that she suffered any harm or was put into danger -- both of which were alleged by members of Congress, among others?
  • Did anyone in the administration say anything about Wilson or Plame other than that the latter worked for the CIA and initiated the Niger trip of the former?

I believe that as a Special Counsel, not just an ordinary DA or Justice-Department investigator, he has the duty not merely to decide not to indict, but also to exonerate those who were actually cleared by his investigation: The charge itself is so politically and institutionally damaging that mere failure to indict is insufficient.

The philosopher Alexander Meiklejohn famously remarked, "Some crimes are so heinous that not even innocence is a defense." In this case, some accusations are so damaging that a lack of legal charges is not a just compensation. Having smeared the reputations of Karl Rove ("Official A"), Dick Cheney, George W. Bush, and numerous others with his high-profile investigation, Fitzgerald owes a duty to the American people to drop the other glove.

At the very least, Fitzgerald should issue a short final report of his findings, clearing up whatever he can without revealing any specific grand-jury testimony. But if he does not, then he should be summoned as a witness in any Congressional investigation of this affair... for example, in the one Rep. Henry Waxman is about to conduct before the House Oversight and Government Reform Committee. I want these questions asked under oath; and if he claims grand-jury secrecy, I want a judge to rule whether the specific questions he refuses to answer are covered.

The cloud

Especially so, since Fitzgerald himself has not been particularly shy about spreading inuendo. Not only the heavy emphasis on the classified nature of Plame's employment -- which casts a cloud of suspicion upon everyone else who mentioned her name, besides Libby -- but also a more explicit attack on the vice president.

Consider this statement, which he made during closing arguments in the Libby trial -- a trial in which Cheney was neither called, nor named an unindicted co-conspirator, nor even accused in testimony of having masterminded any attack on Wilson or Plame:

"There is a cloud over what the vice president did," Fitzgerald told jurors in the prosecution's closing arguments. "That's not something we put there. That cloud is not something you can pretend is not there."

Fitzgerald should have known beforehand (and certainly knows now) that this quotation would be pulled out and used to tar the vice president of the United States with the unrebuttable taint of corruption. "Unrebuttable" because, since he was not indicted, he has no opportunity even to be acquitted.

This is the most outrageous part of Fitzgerald's handling of this case. While holding himself up as an impartial observer, he has in fact leveled accusations by inuendo against others besides Libby, but given them no venue to respond. And when pressed for what he means exactly, he always falls back on the grand-jury secrecy rules.

Neither Patterico nor Beldar really addresses either of these points -- the lack of some kind of final report containing whatever Fitzgerald concluded that isn't shielded by the secrecy rule, and some explanation or consequences for Fitzgerald's own attacks on the administration in ways that appear unrelated to the trial of Scooter Libby.

(Beldar comes closest: Dramatic foreshadowing from 2005 on Congress' 2007 probe of L'Affair Plame. He says that Congress probably cannot obtain grand-jury testimony; but he doesn't address whether they can obtain other workproduct of the Special Counsel, such as documentary evidence related to Plame's covert status or an explanation of exactly what "cloud" he meant.)

I would really like to hear from Patterico and Beldar on these points. What exactly is Fitzgerald prohibited from saying? Do they think he should file a final report, saying what he can ethically and legally say, to close as many quesions as possible? Do they believe he was right or wrong to make the allegation against Dick Cheney if he were not going to indict him for whatever is under that "cloud?"

We, the American people, have the right to know what Patrick Fitzgerald found... and also, to quote a memorable phrase, what he didn't find.

Hatched by Dafydd on this day, March 11, 2007, at the time of 6:07 PM

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» Fitzgerald, Libby, and the roles of big lizards (be they mere prosecutors, Special Counsel, or Independent Counsel Godzillas) in the legal-political jungle from BeldarBlog
My blogospheric friend Dafydd ab Hugh has posted on his blog, Big Lizards, a terrific post that begins with a recap of observations and arguments about the Libby case from me and Patterico, and that then goes on to make a series of well-argued points o... [Read More]

Tracked on March 11, 2007 9:46 PM

» It's Easy To Always Look On The Bright Side Of Life, If You're A Moron from Ace of Spades HQ
Patterico: The Greatest Day of the Year It痴 the greatest day of the year: the first day of work when I値l come home during Daylight Savings Time. Plenty of time to go for a bike ride or a trip down... [Read More]

Tracked on March 12, 2007 6:13 PM

» Beldar vs. Dafydd Under the Big Top from Big Lizards
Beldar has kindly responded to my post, Begging the Biggie, with his own -- which is even longer than mine! Even the title has a lot of heft: Fitzgerald, Libby, and the roles of, and viewing windows for, big lizards... [Read More]

Tracked on March 12, 2007 7:39 PM


The following hissed in response by: Beldar

Dafydd, thank you for the ping and the link. As always, your perspectives here are especially refreshing and insightful precisely because you write them as a thoughtful and well-informed nonlawyer, and as you aptly point out, Patterico and I are inevitably and irreparably corrupted by the warping of our minds inflicted by law school.

This post deserves an equally thoughtful, if perhaps less persuasive, post from me, and I will try to construct one. When I do, I will link and ping back.

Thanks again. A post like yours, which examines closely my own, I take as a high compliment notwithstanding our differing views.

The above hissed in response by: Beldar [TypeKey Profile Page] at March 11, 2007 7:09 PM

The following hissed in response by: LTCTed

Forfending reclassification as on a par with NYT editors, may I point out that FItzgerlad will never investigate errr... Fitzgerald?

"Yet he never charged Fitzgerald with intentionally revealing classified information. Thus, we are left simply with the logical conclusion that he did not believe he could prove in court that Libby knew it was classified..."


The above hissed in response by: LTCTed [TypeKey Profile Page] at March 11, 2007 7:58 PM

The following hissed in response by: KarmiCommunist

Fitzgerald (not Libby - grin) was not seeking Justice, he was seeking a RAT in order to create his own Justice...however, Libby is not John Wesley Dean III.

Perverse Libby trial was revealing - Mark Steyn

The above hissed in response by: KarmiCommunist [TypeKey Profile Page] at March 11, 2007 8:38 PM

The following hissed in response by: Dafydd ab Hugh


Funny... they don't even look alike!


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at March 12, 2007 3:10 AM

The following hissed in response by: Big D

The "cloud on the vice president" sounded suspiciously like a Watergate quote, as it was intended to.

The above hissed in response by: Big D [TypeKey Profile Page] at March 12, 2007 11:08 AM

The following hissed in response by: kc_harley

Fitz played a game of Gotcha! He knew all along who the "Leaker" was, Armitrage(SP) and obviously NO crime was commited!! I musta missed the indictment of Armitrage??

Politial, LOL Who Da Thunk!

What a Stupid ******* Defense of Fitz! The Dude is nuttin more than a Political Hack!

[Kc_harley, please watch the language; we don't allow obscenities on Big Lizards. Thanks, the Mgt.]

The above hissed in response by: kc_harley [TypeKey Profile Page] at March 12, 2007 5:46 PM

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