This is the Archive site for Firedoglake. To go to the main site please click on the following link

Saturday, October 22, 2005

Up or Down?

I previously addressed here some of the issues that a grand jury and prosecutor face in weighing the evidence and determining whether or not indictments are appropriate given the evidence and testimony in front of them. Additionally, I've covered potential charges that Fitz and company might be considering for potential defendants in the Traitorgate matter. There has been some fantastic coverage of these issues at TalkLeft, Mark Kleiman and the Left Coaster, as well as a number of other stops around the blogosphere.

The latest article from John Dean moves the ball a little further down the field in terms of speculation. It's that "calm before the storm" weekend -- you can feel that tension rising as the rhetoric among pundits and leakers escalates.

Dean is correct in saying the following:

First, he could close down his Washington office; return to his work in Chicago, where he serves as the U.S. Attorney; and simply issue a statement that his investigation has ended. (He has no authority to write a report, for the information he has obtained is subject to Rule 6(e) of the Federal Rules of Criminal Procedure, and thus is secret).

Second, he could extend the grand jury for whatever time he needs to complete his investigation. And third, he could issue one or more indictments.

Fitzgerald, and those who work for him, have acted throughout the investigation just as prosecutors should. Lips are zipped. Fitzgerald has held his information so close to his chest that, as one wag put it, he's got it in his underpants. Accordingly, Washington is filled with rumors.
Fitz and his staff and investigators have conducted themselves brilliantly in all of this. Truly, well done in terms of maintaining secrecy and integrity of the process. However, it's obviously not something Washington insiders are used to, hence the enormous amount of public sweating and whining from the chattering classes, especially.

It is in the speculation as to who will or won't be indicted that I think Dean's analysis breaks down a bit. He is correct that a sitting President has been determined to be unindictable -- but impeachable -- while in office.

The analysis for the DOJ was done by none other than Robert Bork when he was the Soliciter General in the 1970s, and so far as I have been able to find, even during the Clinton/Monica mess, has not been fully contradicted by any solid legal scholarship. (See here and here for more information on the indictment/impeachment issue.) While it is not a settled question in "black letter" law, it is a fairly accepted standard among a large number of legal and historical scholars.

Dean is also correct in saying that Fitzgerald has a number of issues to weight against each other in determining who, if anyone, to charge with criminal misconduct.

As I have said previously here, prosecutors work under a quasi-judicial mantle, meaning they have both the power to work to exact legal punishment for misdeeds by prosecuting a crime to the fullest extent of the law, but also the responsibility to ensure that any charges brought are fully supported by the evidence and the law and that justice and the public good are served by the prosecutor's actions.

It is a very tough position to be in, I can tell you from personal experience, because you must personally assure your own conscience that what you are advocating in terms of charges to the grand jury are appropriate and just, and that the punishment exacted by those charges fits the crime. You must be fair -- to both the victims of the crime and the person accused -- and I do not envy Fitz and his staff having to make charging recommendations on matters of national security. And you must be thorough, persuasive and well-prepared in addressing all of these issues for the grand jury, who is the ultimate arbiter as to whether charges will or will not be brought.

And John Dean is correct in saying that there is always a chance with a Grand Jury and an investigation that no charges may be brought at all. This is never a sure thing, no matter how much defense attorneys may try to publicly make that case to belittle their client's legal jeopardy. (I've made that argument, myself, a time or two for clients.)

But this is also where my perspective on this case and John Dean's differ. Dean feels as though a seasoned prosecutor will weigh all the political and security and other Beltway sorts of consequences into his calculations on what can and cannot be made successfully as charges.

But national security is a very gray area. Was the Bush/Cheney White House operating in the best interest of the country, or did they have a private agenda (oil fields in Iraq)? Did Cheney, Karl Rove, and Scooter Libby believe they had national security reasons to discredit Wilson's claims, and act accordingly? This is an area where there is no law, and it compounds the assessment of the actions of those involved.
Well, of course, Fitz will be doing that, but Dean misses one very important point about Fitz: he was selected for the job by Comey because of his apolitical nature, because of his exacting expectations for conduct of officials who have been entrusted with the fiduciary obligations of the public, and because of his past high-level case cajones in not being cowed by the implications of the matter at hand.

John Dean's background is one of working within the government toward compromise and considering political implications in every move and decision. Fitz appears to have an entirely different set of criteria for determining charges -- and that rests solely in the province of the law. If there were laws broken, then people will be charged for breaking them. Period.

It is difficult to envision Patrick Fitzgerald prosecuting anyone, particularly Vice President Dick Cheney, who believed they were acting for reasons of national security. While hindsight may find their judgment was wrong, and there is no question their tactics were very heavy-handed and dangerous, I am not certain that they were acting from other than what they believed to be reasons of national security. They were selling a war they felt needed to be undertaken.
What Dean misses here, and this surprises me considering his extensive history with Watergate, is that the cover-up can also be a substantial breach of the law.

If there was a concerted effort to coach testimony from a group of conspirators to avoid prosecution for what they believed might have been behavior that crossed the line, that conspiracy is no less a crime than the original breach.

In this country, rule of law must be upheld by everyone, but especially by the persons to whom the responsibility of governance is entrusted. Otherwise, we lose the authority to demand that any person be honest with the police investigating any serious criminal matter -- from the routine domestic batteries dealt with in every magistrate court in the country to murder to matters of treason. Flouting the requirements of the law cannot, under any circumstances, be tolerated.

A breach of the law is a serious breach, be it a violation of national security secrecy through IIPA or the Espionage Act, or perjury under oath to a grand jury, or lying to investigators -- or conspiring to do any of these things. And if any of the President's employees -- or the President himself -- conspired to do any of these acts, then the full weight of the law should, and most likely will, fall on their heads.

If, as Wolcott speculates today, Libby is contemplating turning his aspen toward a plea bargain, the storm could break directly over the White House before Monday. The Wolcott article is a great read. And if I were in Libby's shoes, having Miller as my heave ho, and Rove as my Brutus...well, let's just say I might be contemplating having a long chat with Fitzie myself. And I'd be bring all of my copious, tabulated and properly indented notes along for the ride.

Perhaps Mary Matalin was thinking clearly speaking well of Scootie Poot to the LA Times yesterday. Never cross a man who is meticulous about recording everything he does -- and everything done by those around him.

If Libby flips, it will be game over. That weekend at Camp David is looking less and less relaxing for the Preznit.

UPDATE: To be fair to John Dean, I should have also included this:

In short, I think the frenzy is about to end -- and it will not go any further. Unless, of course, these folks were foolish enough to give false statements, perjure themselves or suborn perjury, or commit obstruction of justice. If they were so stupid, Patrick Fitzgerald must stay and clean house.
Sorry, didn't mean to leave that out of the article here. Dean wasn't saying no one would be charged at all, or that charges shouldn't be forthcoming at all, and my omission should be noted in the context of trying to blog while chasing a small, dinosaur-costume-wearing toddler around the kitchen while getting dinner started. (And who is now playing with Mr. ReddHedd, so my brain can have a moment of clarity.)

My disagreement with Dean's conclusions on the national security matter is this: certainly, the intent and the thought process behind what happened is something the prosecutor will consider for every potential defendant. But the effect that all of this will have had on our ability to recruit CIA assets and other undercover assets, when an agent of this nation was outed by her own government cannot be just thrown aside as a consideration as well.

I think there are a number of matters that Fitz and company will be weighing on this, not the least of which is the potential chilling effect that the actions of Rove, Libby, and whomever else was involved, may have had on our very ability to recruit future CIA and other law enforcement and intelligence agents and assets when they can't trust their own government to protect them at all costs. This is an issue that needs much more discussion in the days ahead.