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Saturday, October 29, 2005

Overheard in Blogtopia*

. From Kid Oakland: "Occasionally, Tenet had breakfast with Karl Rove, the president's senior political adviser, in the White House mess and joked that he would share secrets with Rove that even Rice was not allowed to know."- Bob Woodward, "Plan of Attack," p. 67-8

. Tom Maguire, on the enigma of Libby's notes: "[O]ne wonders whether the other contacts mentioned by Fitzgerald were in Libby's "copious" notes.  If so, Libby needs to sue his attorneys for malpractice, since they should have reviewed that material before submitting it to Fitzgerald and allowing Libby to testify.  Of course, attorney ineptitude notwthstanding, if his notes included these contacts then it is easier for Libby to argue that he had no real intention of obstructing the investigation.  On the other hand, if they were not in his notes, why not?"

. Crooks & Liars gives us a bit of Nick Kristof: "Mr. Cheney said in a written statement: 'Because this is a pending legal proceeding, in fairness to all those involved, it would be inappropriate for me to comment on the charges or on any facts relating to the proceeding.'

Balderdash. If Mr. Cheney can't address the questions about his conduct, if he can't be forthcoming about the activities in his office that gave rise to the investigation, then he should resign. And if he won't resign, Mr. Bush should demand his resignation."

. Frank Rich: "To believe that the Bush-Cheney scandals will be behind us anytime soon you'd have to believe that the Nixon-Agnew scandals peaked when G. Gordon Liddy and his bumbling band were nailed for the Watergate break-in. But Watergate played out for nearly two years after the gang that burglarized Democratic headquarters was indicted by a federal grand jury; it even dragged on for more than a year after Nixon took "responsibility" for the scandal, sacrificed his two top aides and weathered the indictments of two first-term cabinet members. In those ensuing months, America would come to see that the original petty crime was merely the leading edge of thematically related but wildly disparate abuses of power that Nixon's attorney general, John Mitchell, would name 'the White House horrors.'"

. Meanwhile, the NYT sayd the idiot son remains ignorant if not blissful: "[S]ome insiders say they are not sure if Mr. Bush fully grasps the degree of the political danger he faces and the strength of the forces arrayed against him. And Republican strategists and members of Congress say that while the components of the renewal strategy are easy to identify, they will be hard to carry out in the current environment.

Should Mr. Fitzgerald not wrap up the investigation into Mr. Rove soon, it would at a minimum divert news media attention from Mr. Bush's effort to highlight his agenda."

. Roger: "I can see why Scooter thought Russert would lie for Cheney, given Russert's hosting duties in Cheney's informercials for war. But he should have known that Little Russ wouldn't give up his beachfront properties for the federal pen."

* And yes, Skippy coined that phrase.


All It Takes Is One...

As a prosecutor, you can't always predict when the wall will crumble. So what do you do? You sit back, and wait for a tiny little crack. And then you exploit the hell out of it.

Scooter Libby just may be that point that rocks the entire case. Or maybe not. But to get there from here, you have to understand a little bit about what a plea bargain really is -- and how a prosecutor works a defendant to get one. I've been getting quite a few questions about plea bargains, so I thought I'd try to answer a few here.

A plea bargain is exactly what it sounds like -- an agreement between the prosecutor and the defendant on terms that both can live with to settle an outstanding criminal charge. But it is a bargain, not a gimme, for any criminal defendant.

Wikipedia has a decent enough shorthand description, which reads:

The defendant agrees to plead guilty or no contest (and often allocute) in exchange for some concession from the prosecutor. This concession can include reducing the original charge or charges, dismissing some of the charges against the defendant or limiting the punishment a court can impose on the defendant. [RH Notes: An allocution is where the defendant must state on the record to the judge exactly what his actions were in the commission of the offenses to which he pleads.]

It is a bargain that both sides have to agree to -- and prosecutors do not offer them lightly, no matter the stress of their case load. The defendant has to give something in return in almost every case of a plea.

A defendant faces substantial jeopardy in a criminal case. I've been in and out of state and federal prison facilities (as a lawyer, not an inmate) and, I can tell you from personal experience with my clients, they are not places where anyone would willingly spend any amount of time by choice. They are filled with violent, malevolent, and incredibly cunning people who would rip your throat out for looking at them sideways and not even lose a moment of sleep, and those are the ones that you see coming.

Even in a minimum security prison where you might be able to have some shielding from the more violent prison population, and even with the potential for a reduced sentence for good behavior hanging out there, it is not something to which I would ever subject myself under any circumstances if possible, and not something that Scooter Libby will relish as a prospect, either, I'm sure. With the federal prison system full to bursting right now, there are no "country club" prisons any longer.

The reasons for making this sort of agreement are many. In my experience, we offered them in the sorts of cases where you had a victim who would have had to re-live their experience on the stand -- cases where you have a child who has been the victim of sexual abuse, or an adult rape victim, or some other mentally traumatic experience -- where you have substantial physical evidence, enough to hold over a defendant to get a decent plea to a lengthy jail sentence, but not have to re-victimize the survivor by putting them through testimony on the stand and cross-examination.

You also sometimes have a case that looks good at the end of the initial investigation, but the more you dig into it and meet with witnesses, the worse it starts to look, and you offer a plea in order to salvage something from the case. I've been forced to do that in cases where I've had to deal with incredibly unsympathetic victims, that would have aliented the jury simply by breathing in the same room with them. (Those are the worst cases. Painful and completely unsatisfying.)

Having read through the Libby indictment, however, the evidence is solid, overwhelming, and multi-layered. None of the conditions listed above should apply in terms of problems for trial, so why offer Mr. Libby a plea deal at all? Why not force him to trial -- which a prosecutor is perfectly within his rights to do unless Mr. Libby wants to offer to plead to the entire indictment and take the maximum penalty?

Because there might be something that Fitzgerald wants from him, and through the leverage of these charges -- and the leverage of other charges still hanging tantilizingly out there according to the language of this initial indictment -- Fitz intends to get what he wants through a plea and an agreement of cooperation. (Jeralyn has discussed this a bit as well on TalkLeft here and TChris here.)

Sure, there is a chance of a pardon hanging out there. But from a President with little or no political leverage of his own. So you'd have to stay in the pokey for a coupla years and risk...well, you'd be risking a hell of a lot. Not to be blunt about it, but it's a lot of yourself on the line for a pardon that may never materialize. Not to be able to be with your family. To miss your children, your wife, everything you hold dear. And maybe, just maybe, not live until the pardon is offered, if ever. That is a lot to weigh.

There is also the possibility, held out in the langauge of the indictment, that Fitz could make a case for violation of the Espionage Act or IIPA with a few more facts added into the mix. Jane's covered this very well, so I won't re-hash, but it sure does provide some hefty incentive to flip, now doesn't it?

But here is the big question: Does Fitz want the cooperation from Libby? Or is he using Libby to widen that crack in the foundation -- and go after someone else who was on the brink of spilling what Fitz needs? Someone who is even more afraid of prison than Libby, and a whole lot more craven and less loyal in terms of thinking of "what's in it for me"?

Federal indictments do not have to be as detailed as the one that Libby received yesterday. Prosecutors are only required to bare bones the indictment in order to cover the essential facts. Fitz did a hell of a lot more than that and, to the folks on the inside of the White House, laid out a map to who has been talking a lot and who hasn't. (There is a fantastic article on Booman on this here. Must read.)

And that, my friends, sows an awful lot of dissent, mistrust and all sorts of other nasties within the ranks.

Which often leads to a widening of the cracks, and a crumbling of the wall itself, holding back the whole cover-up in a conspiracy. There is no honor among thieves, and that "take care of myself first" mentality starts to take hold when you think folks around you have been sticking a knife in your back all along and weren't even decent enough to let you know.

It's not just single layer chess in this game, boys and girls, it's multi-dimensional. And I'm beginning to wonder if Libby isn't just the sacrificial pawn in this first round.

Guess we'll see over the next few weeks just how strong the bond is at the White House. That mortar is starting to look awfully crumbly around the edges to me.

For more on plea bargains that is fairly basic, check out:

* ABA Plea Bargain page.

* Wiki Plea Bargain page.


More Scooter Blues

Since others have referenced it, I thought I'd transcribe exactly what John Dean had to say on Countdown last night (you can see it for yourself at Crooks & Liars):
OLBERMANN: There's only one Vice President, and he is mentioned by title if not by name. Is that the end of the damage this will do to him, or as you suggested could the whole thing be boiling down here to Mr. Libby at some point having decided to protect him and could this reference in this indictment be a kind of wormhole to some future investigation of the Vice President?

DEAN Well clearly Scooter Libby is the firewall for Dick Cheney at this point. I don't think they could go very far on any further investigation unless Mr. Libby were to change his mind and start talking about only things that he would know and was privy to with relation to the Vice President. I have no indication that he would do so, it may well be this is an effort by the Special Counsel to put some pressure on Mr. Libby to see how much heat that firewall will take, because he's got it on him right now.
Will Scooter bow to the pressure and give up Big Dick? Hard to say. But Josh Marshall has more on what Fitzgerald could hope to hear from Scooter. Citing Paragraphs 22-24 of the indictments (PDF), which state that Libby talked with "other officials" about what he should say about Joe Wilson in response to media inquiries, one of his readers connects the dots to a New York Times article from the same period which indicates that Cheney did, indeed, take part in these conversations that Fitzgerald is hoping to use against Libby.

Nicely done, we might add.

Update: Commenter Susan S. points us over to the BooMan Tribune, where lawyer and former SEC official Marty Ausssenberg has this to say:
[T]he real reason to lay out as much factual detail as he did was for Fitz to show the world (and in particular, the world within the White House) that he has the goods, and that he won't hesitate to drop the dime on some additional malefactors, particularly, Cheney. Let's face it: Libby is only the consigliere to Cheney's don. Even though the threat of spending 30 years in the pokey will be a powerful incentive for Libby to cut some kind of deal that might include turning on his boss, the possibility of the additional charges of revealing classified information, particularly against Cheney, is even more powerful since, presumably, Cheney does't appear to be at risk of a truth-telling-related indictment.

Let's agree on something else right now: Libby's case will never get to trial, primarily because Bush and Cheney will never allow such a trial to become precisely the kind of exposé of the administration's motives and actions in the run-up to the war they were worried the indictments would constitute. It would be their worst nightmare to have their war machinations presented to a jury of 12 ordinary citizens in the District of Columbia (read: predominantly African Americans) who would be sitting as proxies for the families of 2,000 plus military fatalities in Iraq and the plurality of the country that opposes the war. The risk there is not just exposure to the possibility of conviction in Washington, D.C., but a subsequent prosecution in The Hague as well.

Yes, my friends, Fitz is about to grab the pine tar rag, choose another, very special, piece of lumber and step back into the on-deck circle for the home run that is sure to follow. Batter up!
Oh yeah.



. Looks like everyone's struggling to keep up with Patrick Fitzgerald. NYT:
With the term of his grand jury at an end, Mr. Fitzgerald said he could present any new evidence to an already impaneled grand jury if needed.
Already impaneled? That's new.
Mr. Rove's lawyer, Robert D. Luskin, said in a statement he was confident Mr. Fitzgerald would conclude Mr. Rove had done nothing wrong.
Yeah and I remain confident that my dog Kobe will win the Nobel Prize. Whatever.
Mr. Libby could face a trial that seems likely to expose to the public some of the administration's innermost workings and probably require testimony by Mr. Cheney. And it only highlighted how many elements of the case remained obscured by the secrecy of the legal proceedings.
As Redd has said, you don't put everything you've got in the indictment. You know those fuckers are poring over the indictments right now wondering what else Fitzgerald has unearthed from underneath that slimy rock. Rove's probably on the phone right now. "Hey Ari! Long time no speak. No, no, not mad at all. Say, what exactly did you say to the big Irish dude?"
Mr. Fitzgerald was spotted Friday morning outside the office of James Sharp, Mr. Bush's personal lawyer. Mr. Bush was interviewed about the case by Mr. Fitzgerald last year. It is not known what discussions, if any, were taking place between the prosecutor and Mr. Sharp. Mr. Sharp did not return a phone call, and Mr. Fitzgerald's spokesman, Randall Samborn, declined to comment.
Wow. I have absolutely no way to read that one, and certainly nothing that swings positive for Dubya.
At his news conference, Mr. Fitzgerald did not explain his reasons for taking no action against Mr. Rove, even though the prosecutor had advised him that he might be indicted and had continued interviewing witnesses and reviewing evidence as recently as midweek.
Well, fortunately Mr. Rove himself provided some illumination through statements this morning to the LA Times:
As recently as Tuesday, for example, prosecutors began to focus on a 2003 e-mail exchange between Rove and a White House colleague. The exchange could be seen as supporting Rove's contention that he had not intentionally misled investigators.

Lawyers familiar with the case believe these e-mails were one element of a broad, eleventh-hour review of evidence — coupled with negotiations by Rove's lawyers — that led Special Prosecutor Patrick J. Fitzgerald not to include him in Friday's action.


The e-mail exchange reviewed by prosecutors was between Rove and former White House media spokesman Adam Levine, and it focused on a topic unrelated to Plame or Wilson.

The exchange occurred several hours after Rove had talked to Time reporter Cooper. Prosecutors went back and interviewed Levine again this week, asking whether Rove had mentioned his conversations with Cooper. Rove did not initially tell investigators about his conversation with Cooper. In another session, Rove recalled that he had spoken with the reporter.

Levine told investigators that Rove had not brought up Plame or the Cooper conversation — suggesting that the topics were not priorities for Rove at the time.

"Levine's acknowledgment that the Cooper conversation did not come up in my client's conversation with Rove seems to support a theory that it just wasn't that important to Rove and could therefore have been easily forgotten," said Daniel French, Levine's attorney.
Okay. So let me get this straight. This is your fucking defense? After twenty-two months and untold man hours, we're supposed to believe that Fitzgerald abandoned the idea of pressing perjury charges against Rove because he didn't mention something to Adam Levine?

Fucking hell, I'll be your alibi, Turdy. I didn't talk with you about it, either.

If that's the best spin Rove can come up with, stick a fork in him 'cos he's done.

. For some wonderful edification on the finer points of the indictments, go and visit emptywheel over at the next hurrah, who is going over them with a fine tooth comb. The depth of her knowledge is just amazing.

. Oh and take a peek over at DKos, where one of the top o' the recommended list is a diary about how Redd got it right and the MSM got it wrong.

. Digby: "Can there be any doubt that the Bush administration bet the farm on the idea that the press would keep their mouths shut? And can we all see that they were very close to being right? If Fitzgerald hadn't been willing to take it to the mat, they would have gotten off scott free. "

. Gilliard: "The funny thing is that after five years of Bush, people are so cynical that they think he can just throw up a few lies and walk away. He can't, much less pardon anyone. All the conservative bleeting about the indictment is just that, bleeting. It isn't serious....No, this is isn't Watergate, this is worse, because the criminality goes right to the WH. No henchmen acting on their own. It is likely this came from Cheney himself."


If You Apply Heat, You Get...

Having had some time to re-read the entire indictment, a large number of bits and pieces jump out -- and they also make a compelling argument about a larger picture that cries out for more questions being asked and answered. After running the entire indictment through my tired brain before bedtime last night, and then re-reading it again in its entirety this morning, let's just say there are some issues that need a whole hell of a lot more analysis and discussion in the days ahead.

To begin, from a lawyerly perspective, that's quite a rarified air witness list to be assembled from just this one indictment, and just from the names apparent within the "four corners" of the document itself.

* Wurmser
* Hannah
* Fleischer
* Bolton
* Preparers of the Wilson work-up from State
* Presumably that would include Fleitz (? -- question mark because that's not dead-on certain)
* Senior Officer of CIA (p. 4, pp. 4)
* "Other persons" in VP's office (p. 4, pp. 8)
* Cheney
* "Others" talking about how to deal with the Pincus call (Are these people just in the VP's office? Or was this discussions with WHIG members?)

* Walter Pincus
* CIA briefer
* Judy Miller
* VP's legal counsel
* Catherine Martin
* "another government official" (p. 7, pp. 19)
* Official A (which,
according to the WaPo is Rove)
* "Others" on Air Force II with the VP and Libby on 7/12/03 (p. 8, pp. 22)
* Matt Cooper
* Tim Russert

That sure is an awful lot of high level governmental officials interested in an instance of criticism of the Administration, isn't it? That's an awful lot of energy to combat something so "mosquitoesque" (as Mary Matalin put it last week), isn't it?

I mean, that's one hell of a public trial. Just the visuals of all these people traipsing in and out of the courthouse for days on end is enough to make Tweety dizzy.

And in practical terms, how does Libby's defense counsel handle this. Do you put forth your most robust cross-examination in defense of your client's interest, as you would do in any other case? Really tear into people, even those with whom Libby has worked closely over years and years? Even with the Vice President? Or do you pull your punches -- and if you do, how hard a leap is it to start thinking that you are protecting someone else's ass?

Imagine, if you will, that this case goes to trial. The Prosecutor would be well within his rights to call each and every one of these people, to the stand, under oath, to testify about the five counts alleged in the Scooter Libby indictment. That's not counting all of the investigators, and others who are not listed within the four corners of the indictment -- but still, that's an awful lot of people near the top of the food chain in the Bush Administration. All running around and talking amongst themselves about Joe Wilson and his wife. For weeks.

And talking with reporters and others around town. For weeks.

Both the Libby interviews with the FBI occurred prior to the appointment of a Special Counsel in this matter. (In October and November of 2003, with counsel present at both.) It's certainly plausible that Libby felt that since Ashcroft was at the helm on this one, that he could be confident in holding things back or claiming journalist conversations assuming that no one was going to squeeze those journalists for their side.

But why would he then hold things back when asked to testify twice in March of 2004 well after Fitz took the helm? Why stick to lies he had to have known would be shown to be lies -- from his own notes? I mean, if Libby is as detail oriented as we were led to believe, why not attempt to correct the record like Rove clearly has tried to do in his four visits to the Grand Jury, and his other negotiations with Fitz? Libby had to have done his own inquiries into Fitz's tenacious working of his cases. Was Libby fixed on sticking to his story? Did he get really bad legal advice (doubtful -- Tate is no dummy)?

Or is he protecting someone else? Ah, the question everyone is asking themselves this morning, isn't it?

Even all those people who haven't paid one whit of attention to this matter for the last couple of years are hearing news reports that say, "The Chief of Staff for the Vice President of the United States has been indicted in a five count indictment for failing to be honest with investigators looking into the outing of a CIA agent in a grave matter of national security." And they are thinking who is this guy really trying to protect by putting his ass on the line instead of fessing up?

What exactly was Libby and Rove's job? Were they given carte blanche to be the Administration's hatchet men, keeping their bosses out of the loop (or out of legal jeopardy) whenever the dirty work needed doing against Administration critics? How far did that dirty work get to go -- not just with the Wilsons, but with other Adminstration critics as well? How far did that implied authority go -- and how much check-in was required for either of them?

Seems to me that if you use someone to do your dirty work, your hands are just as dirty as the person who throws the mud.

Let's think back: Richard Clarke, Paul O'Neill, Gen. Shensecki...the list just goes on, all the way back to the Rove special treatment job on McCain in South Carolina during the Republican primaries in 2000. (Well, back further than that, but if we're going to do a full Rove treatment on dirty tricks, this could take me months to write.)

And I keep coming back to the central question of Swopa's "empty suit" theory. Did the Vice President and his staff and neocon allies at the State Department, the DoD and the CIA purposely skew intelligence and factual information so that the President primarily saw information that could lead him to only one conclusion -- the need to go to war with Iraq, with any dissent on the subject suppressed or discredited immediately? Or was the President aware from the beginning -- or at any time -- that the evidence was faulty, and has not been straight with the American public about his role in this, or about anyone else's role.

My questions on the "Empty Suit" still apply. Maybe more so after the indictment gave us such a detailed glimpse into how business is done with this Administration. And we should all be pressing the people with the access to be asking them. And keep asking them until they get some answers.

I look for Libby to try and cut a deal, if only to prevent the circus of a trial to continue to protect his boss. But the question now is whether or not Fitz will take a deal. Or what he'll want in exchange. How far is Libby willing to go -- how much of his own neck (and that of his family because they have a rightful say in this as well) stays on the chopping block -- to protect Dick Cheney?

Fitz has worked this block before. And worked it successfully. If Libby flips to save himself the rest of his life in Federal prison, how far up the chain does this go?

Don't know about you, but I sure feel like things have just moved from simmer toward boil.


Friday, October 28, 2005

Big Dick, the Big Squeeze and the Smoking Gun

That Patrick Fitzgerald considers lying in the course of an investigation a very serious crime is certain after today's press conference. If you lie to him and it inhibits him from pursuing information he needs to complete his task, he is not going to take it lightly. As the indictments against Libby showed today, he is not fucking around here.

Who has lied to him? Well, we know Judy Miller wasn't exactly forthcoming with him -- he had to jog her memory with a few notes before she gave complete testimony. But she was not indicted, presumably because he was more interested in the information she had to offer with regard to the "bigger fish" he has to fry.

He notably asked her questions about Dick Cheney.

Did Karl Rove lie? Well, his four trips before the grand jury indicate that Mr. Fitzgerald might think so. And many news organizations are reporting he is not yet off the hook.

Scooter lied. We know that, or at least today have damn good reason to believe it. Today the indictments name (by job title) individuals who presumably will testify against Scooter if it ever comes down to that, Catherine Martin and Ari Fleischer among them.

Let's take a look at one of the assertions in the indictment, p. 5, pp. 9:
On or about June 12, 2003, LIBBY was advised by the Vice President of the United States that Wilson's wife worked at the Central Intelligence Agency in the Counterproliferation Division. LIBBY understood that the Vice President had learned this information from the CIA.
Now, later in the indictment, p. 20 to be exact, we are given Libby's testimony from March 5, 2004:
I was very clear to say reporters are telling us that because in my mind I still didn't know it as a fact. I thought I was -- all I had was this information that was coming from reporters.
Then again, on p. 21, from his March 24, 2004 testimony:
Q. And you're, you're certain as you sit here today that every reporter you told that Wilson's wife worked at the CIA, you sourced it back to other reporters?

A. Yes, sir, because it was important for what I was saying and because it was -- that's what -- that's how I did it.
Now, Dick Cheney was questioned by Patrick Fitzgerald in June of 2004. We know that Fitzgerald knew about the June 12 meeting with Cheney because Libby's notes told him so.

Let's take an abject, flying leap of logic here and presume that Cheney told Fitzgerald the truth about this meeting, as verified by Libby's notes, which was that he told Libby that Valerie Wilson worked at the CIA at this time. Why oh why did it take another year and a half for Fitzgerald to bring Libby up on perjury and obstruction charges if that's all he was going to bring? And why did he need to throw Judy in the can to do it if he already had the corroborating testimony he needed to prove Libby was lying?

Okay, now let's make the more reasonable assumption and say the VP didn't tell this to Fitzgerald at the time, but that in the wake of the discovery of the notes, Cheney indulged in the Judy Miller "I forgot" excuse. After all, Fitzgerald gave Karl Rove three subsequent opportunities to "refresh" his memory, right? Right. It's only logical that he would give the VP the same opportunity to come in and play it straight with him, right?

Except as far as we know, he hasn't.

Fitzgerald takes attempts to obstruct his investigation really, really seriously. He doesn't like being lied to. So he just lets Cheney skate, right? Never even follows up? Somehow I don't think so.

Maybe you can come up with another more reasonable explanation for all of the above, but the only one I can come up with is that Fitzgerald is still gunning for Big Dick.


John Dean Says Scooter is the Cheney Firewall

Crooks & Liars is taking a nap and then going to a party with Mark Kleiman but tomorrow they will have the video up of John Dean on Countdown tonight with Keith Olbermann. The transcript is not available yet but Dean basically reiterated what David Gergen said earlier today, that Fitzgerald's tactics are probably meant to squeeze Scooter. He referred to Scooter as the firewall to Cheney, and said that the indictments brought down today were quite probably intended to test the resilience of that firewall.

We've known since Judith Miller's testimony that Fitzgerald has been inquiring about Cheney. At the very least today's indictments, if brought to trial, will give Fitzgerald the opportunity to question Cheney on the witness stand as he testifies against his former Chief of Staff. And at worst? Well, the threat of thirty years might make a guy like Scooter rat Big Dick out sooner rather than later.

Then again, maybe loads of character will cause Scooter to do the honorable thing and take the thirty years.

(((BWA HA HA HA HA!!)))

Update: Swopa, on the WaPo comment that Rove said something which "gave Fitzgerald pause" at the last minute:
But what about Rove? It's weird enough to consider what Karl could possibly have offered that kept Fitzgerald from deciding whether to prosecute him -- although it's easy to imagine Rove and his lawyers devoting every waking moment the past few weeks trying to invent something. (Aside from the probably vain hope that Fitzgerald would accept a bad deal out of a desire to wrap up his investigation by the time his grand jury expired, there's the simple incentive of staying out of the headlines as the first Bushite official indicted ... even if he gets nailed next week, the font size won't be quite so large.)

But maybe there's a connection between the two postponed sets of decisions. Did Rove tease Fitzgerald with the possibility of turning on the president or vice president? If so, is there a chance in hell that he meant it?
Now that would be positively Rovian.

Update 2: Eriposte sends us this link. Anything sound familiar?

Update 3: There is a video of John Dean on Countdown here. Thanks to netro in the comments for the link. The one of Lawrence O'Donnell is excellent, too.

Update 4: Mark Kleiman:
There was nothing to keep Fitzgerald from saying, had it been true, something like: "The investigative phase of this case is now over. The grand jury has indicted the only person we thought, on the evidence we now have, had provably committed a crime worthy of prosecution. Of course it's possible that, in the course of the trial, new information might emerge that would implicate other people, and if that happened those people might be indicted. But as of now, we're not investigating anything or anyone else, and my previous request that witnesses and lawyers not discuss the case with one another or with the press is therefore no longer in effect."
Mark Kleiman is a very smart man. Have I said that today? Hope he and Amato (C&L) are having a bang-up time at the Wes Clark bash.

Update 5: Sweet leapin' Jesus -- me, Kevin Drum and Andrew Sullivan all agree on something, namely that Fitzgerald may be contemplating prosecuting the leak itself. No, I'm not kidding, read the Sully link, you won't be sorry.


Patrick Fitzgerald, David Radler and the Ghost of Fitzmas Future

Aug 19, 2005 (AXcess News) Chicago - F. David Radler, the ex-publisher of the Chicago Sun-Times, was charged with criminal fraud by federal prosecutors for his role in stealing $32 million from the paper's parent company, Hollinger International.

Patrick Fitzgerald acquitted himself superbly today. A country weaned on the corrupt, leering hackery of Ken Starr -- who squandered millions of taxpayer dollars in a partisan witch-hunt -- got to watch as a guy with an inner core of decency got up and frankly spoke about his investigation with professionalism and honesty. We got to be proud of the Justice Department again. We got to enjoy a moment of confidence that if there is a bottom to be gotten to in all of this there is a man in charge who will honorably and doggedly find it.

But hopes were set high that an array of GOP scalps would be waving in the wind by this time today, and that was not the case. Did we pin them unrealistically on a man and a situation to whom they did not rightfully belong? Perhaps.

But perhaps the only thing in the situation that is wonting is time.

If I were Karl Rove right now, I'd be kicking myself around the room. The thing that got him into this mess in the first place is spinning shit he didn't need to spin, and it looks like he's done it once again.

Fitzgerald held his cards close today, and gave no indication that Rove was on the hook for anything, giving pause to many who were hoping that he would give some signal that Turdy's goose was yet to be cooked. But on Thursday evening, Rove's people were spinning furiously to everyone who would sit still -- NYT, WSJ, AP -- telling them that Rove was not going to be indicted today, but his attorneys had been told that he was "still under investigation."

Wow. If they'd just shut up, all the talking heads would be chattering today about how Rove was in the clear. Flip on the TV and listen for a while, and hear how even partisan wonks like Andrea Mitchell and Bob Woodward -- who are certainly parroting every other talking point Unka Karl sent them out with today -- are still not saying that Rove is in the clear. They don't know what the fuck to say. The queen is dead and the Borgs are are wandering around aimlessly bashing into one another.

So what are we to think of all of this? Well, consider:

1. Fitzgerald gave nothing away today. Or, damn near nothing. However he let it be known that he could not investigate the underlying claims of violations of the Identities Protection Act because another crime was being committed that prevented him from doing so, namely the crime Libby stands accused of.

2. He's not done. As he said, "We recognize that we want to get this thing done. I will not end the investigation until I can look anyone in the eye and tell them that we have carried out our responsibility sufficiently to be sure that we've done what we could to make intelligent decisions about when to end the investigation.

3. In the Libby indictment, most individuals who are cooperating witnesses are indicated by their job title -- Assistant to the Vice President for Public Affairs, Under Secretary of State, White House Press Secretary (guess that explains where Ari Fleischer's been in all this, he's a cooperating witness). The exception is the anonymous "Official A," who purportedly spoke with Robert Novak in the week prior to July 11, 2003 (p. 8, pp 21). That's a distinction you would make if you were still investigating someone and you did not want to prejudice that investigation.

4. When pressed about whether members of the press (read: Novakula) could not discuss their dealings with the grand jury openly, Fitzgerald said he had requested that they remain circumspect so as not to compromise the investigation. But when asked later whether this now meant that they were released from this obligation, it was the only time I saw Fitzgerald waffle during the press conference -- he wasn't prepared for that one, and he said he couldn't answer. If the investigation were really over, then why not? Given the statements he made regarding the importance of the press, wouldn't he want to free everyone up as soon as possible?

5. As Josh Marshall and Billmon have noted, it was indicated both in the indictments and in Fitzgerald's press conference that there might have been enough evidence to go after Libby for Identities Protection. Why didn't he? Especially since the one time Fitzgerald stepped beyond his role as Special Counsel to editorialize was when he underscored the damage that had been done to the intelligence community by the outing of Plame. This guy probably hugs the Patriot Act in his sleep. He is a total law'n'order true believer. He would not pull his punches on that front, and has in the past been extremely aggressive -- some would say draconian -- in protecting what he saw as threats to the national security.

Now we enter the realm of -- admittedly -- pure speculation. But Fitzgerald has Libby on 30 years worth of counts, and he's got him cold. No wiggle room. Libby may not do 30 years, but he ain't doing 6 months. He is F-U-C-K-E-D fucked. It was the Veep's boon companion himself, David Gergen, who said on MSNBC today that this is squeeze time. It really matters little to a man of 55 whether he is looking at 30 years or 60 -- he'd rather have 60 thrown at him if some of them were shaky and he thought he could use the wobbly ones to get out of the rest.

There is no wobble in the indictments handed down today. It's pretty clear. Libby can deal or swing.

Which brings us to David Radler. Who is David Radler? David Radler was the #2 man at Hollinger International. The day after he was indicted by the US Attorney for the State of Illinois Patrick J. Fitzgerald for looting money from the stockholders of Hollinger, he announced he'd rather "cooperate with investigators" (read: rat out his boss, Conrad Black) than spend the rest of his life perfecting the ultimate starch job in the prison laundry. Radler decided he would take Door #2 and do twenty-nine unpleasant months and pay a fine when the prospect of life in prison became a reality.

That's just the way Patrick Fitzgerald works. If the Hollinger case, and the Ryan case, and the Daley Case, and the Al Quaeda case and the Gambino case are any indication, Fitzgerald will now use what he's got to get more.

So if I was Big Dick Cheney, I wouldn't be sleeping very easy tonight. At the very best, his chief aide was just popped for lying to protect him. Do you think Andrea Mitchell could spare some TV time from mewling over what a loss it will be not to have Scooter in the Hamptons during the summer to discuss the serious implications of the Vice President's role in this highly dubious affair? Well probably not, but if there's a God in his heaven tonight the tightly-stretched skin of her face will soon snap and whiplash her into inactivity.

Do not make this mistake of thinking a presidential pardon will be a panacea for those involved. Fitzgerald's honorable and straighforward presentation today made it nigh impossible for the Rovians to fall back on their old tricks and launch a smear campaign -- Matthews damn near crowned him Pope this afternoon, and any attempt at a pardon will just make Bush look like an impeachment-worthy crook out to thwart the efforts of an honest public servant. Every solution they can come up with seems to beget more problems.

There is no joy in Bushville tonight.


Good Point

Josh Marshall makes a great point on Talking Points Memo. Something I missed on my quick read through earlier, but well worth considering in terms of what may come down the road at a later date.

There is a lot to read, re-read and analyze in the indictment and, unfortunately, I have an uncooperative toddler on my hands and a husband who isn't home yet. Promise I will get to something more in depth soon.

In the meantime, consider what it could mean if Rove is Official A. Or Cheney. It's the speculation that keeps on giving, isn't it?

No way in hell I'd ever sit down at the Texas Hold 'Em table with Fitz.


Initial Strike

Fitz gave a great opener in his press conference today. It tracked the tone and the seriousness of the five count indictment issued today, and underscored just how important this case is in terms of how this case relates to national security matters and the integrity of government.

Fitz made it very clear that this case was not just about the Wilsons and people who may have disliked them -- that this case was about all of our security, now and in the future. And it's not over.

Fitz talked at length about Grand Jury secrecy, and was careful to lay out why it is that a witness in an investigation, in front of a grand jury -- in any capacity throughout an investigation, but especially dealing with a matter of national security -- must tell the truth, the whole truth, and nothing but the truth.

Fitz detailed, as he did in the indictment, that Libby gave a compelling story initially to investigators -- which it looks like was completely false. Instead of being at the receiving end of bits of information, Libby was the start of a long chain of information being disseminated that should not have been discussed outside the confines of people who had a need to know it for national security reasons.

My read on Fitz was that the lying makes him very, very angry. For a lot of reasons, but most of all because national security is very serious business, and Libby violated not only the legal trust and the laws, but also his fiduciary obligations as a government official in his position in doing what he did. I know it pisses me off.

One question: At least 4 people in government talked with Libby about this. Well, isn't that interesting? The GOP talking points are going to be that Libby was stupid/idiotic/overreaching/etc., but he clearly wasn't the only person discussing this within the government and who was he protecting by doing all of this and putting his own ass in jeopardy by testifying falsely? Big questions that I hope will be asked by the media.

It is clear from the indictment that there is an enormous amount of detail -- not within the four corners of it, and held back from the rest of the investigation. Fitz is making it very clear, without being specific because he cannot be according to the law, that the investigation is ongoing. And that charges can be brought before a grand jury in DC at any time, should they be warranted.

I'll say this: after watching Fitz, anyone who tries to raise the question of whether perjury is a "technicality" is going to end up looking like a moron. Because that clip of him explaining the importance and ethics of the rule of law in an investigation was exceptional. And the multiple allegations of false statements and testimony point to a considered pattern on the part of Libby.

This reaches to the very heart of how this Administration conducts itself. This reaches to the very heart of how they operate in shutting down any and all criticism -- inside and outside the government. And there are going to be some very difficult questions for them to answer.

And Fitz is not done yet. Not by a long shot. You could see in his demeanor, and you can read it in the indictment -- there is a whole lot more to this. I hope we get to know the rest soon.

(Graphics love to


Smoking Guns

There are smoking guns all over the place in the Libby indictment.

1. p. 7 - 19. "Not earlier than June 2003, but on or before July 8, 2003, the Assistant to the Vice President for Public Affairs learned from another government official that Wilson's wife worked at the CIA, and advised LIBBY of this information."

Assistant to the Vice President for Public Affairs from 2001-2004 was Catherine Martin. From Seymour Hersh's New Yorker article, 10/20/03:
In response to claims that Joe Wilson had circulated his Niger report prior to the State of the Union Address, Martin denied that Cheney had any knowledge of it. “The vice president doesn’t know Joe Wilson and did not know about his trip until he read about it in the press,” said Martin.
She learned from ANOTHER governmentn official? Whole lot of people got some 'splainin to do.

2. p. 8 - 21. "On or about July 10 or July 11, LIBBY spoke to a senior official in the White House ("Official A") who advised LIBBY of a conversation Official A had earlier that week with columnist Robert Novak in which Wilson's wife was discussed as a CIA employee involved in Wilson's trip. Libby was advised by Official A that Novak would be writing a story about Wilson's wife."

Who is "Official A?" Rove?

3. How many friggin' people told Libby that "Wilson's wife worked for the CIA?" In addition to Catherine Martin:

. The Vice President (June 2003)
. "a senior CIA officer" (June 11, 2003)
. Undersecretary of State (Bolton? Grossman?) June 12, 2003

Can you spell "conspiracy?"

Fitzgerald coming on TV now with Jack Eckenrode. One of the Chicago Trib people who covers him told me he never needs to look down at his notes and speaks from memory, even when reciting complex charges. Looks to be true (no Bushian bozo teleprompter here).

Update: John over at C&L will have press conference & questions up as soon as Fitz is finishd.

Update 2: Think Progress has the PDF of the indictment.

Update 3: Digby: "This is the first time in 130 years that a sitting White House official has been indicted. The last time was in the Grant administration. Honesty. Integrity. Honor. Dignity."

Update 4: Gergen on MSNBC -- "I feel like the prosecutor feels he hasn't gotten the truth from [Libby] yet and he's going to squeeze him."

(graphic by Valley Girl)



Documents not posted yet regarding the indicment at the DOJ Special Counsel website. Will live blog as I'm reading them, with updates as I go when they get there, so you get the news as I get it. This is likely to come out as a jumble, so I will come back and do a wrap-up analysis piece afterward.

Scooter Libby has been indicted according to CNN on Obstruction of Justice, Perjury and Making False Statements. Soon as documents get posted, I'll start review. There may be much more.

5 count indictment: MSNBC reporting a 5 count indictment.

Brian Williams now talking to Timmeh about his role.

The Washington Post has its article up here.

One reference in indictment to VP, regarding Cheney's advising Libby of Wilson's wife working for CIA. Libby asked "Undersecretary of State" to investigate Wilson's claims -- Undersecretary used State Department resources to look into it. (Shuster -- MSNBC)

1:08 pm ET: Scooter Libby has offered his resignation to Andy Card. It has been accepted by the President.

Update: Documents now up at Smoking Gun.


Indictment read:

Pages 1 & 2: Establish background that Libby had access to and knowledge of proper handling of classified materials. Shows that Libby signed his SF-312 on 1/23/01 for clearance.

Page 3: Addresses the SOTU "16 words" issue -- meaning this will definitely come up at trial, if there is one.

Page 4: All of this deals with the actions that show that Libby's attempts to cover things were bunk -- and that the SPecial Prosecutor had substantial cooperation.

On 5/29/03: Asked Undersecretary of State about information on Amb. trip to Niger.

On 6/11/03 or 6/12/03, Libby was advised by USoS, that Wilson's wife worked for CIA and that she was involved in him going on the trip. (Can you say Bolton? Or Wurmser?)

On 6/11/03, Libby spoke with Senior CIA Officer re: Wilson and his wife. (Can you say Fleitz? Or Tenet?)

Page 5: On 6/12/03, the VP told Libby about Wilson's wife. Then Libby spoke with Pincus. (At least, that's my surmising, by the "senior VP aide" attribution.)

On 6/14/03, Libby met with senior CIA briefer and bitched about Wilson and criticisms of Administration policies by folks at CIA.

6/19/03 New Republic article with Wilson quotes discussed.

Page 6: Shortly after article, Libby spoke with his Chief Deputy. (Can you say Hannah? And cooperation?)

6/23/05 Judy Miller first meeting on this. (Guess they were hoping no reporters would be subpoened, eh?)

Okay, there's a continued narrative of facts on all of the various conversations between Libby and others in the WH and the VP's office and State and the CIA and the media. It's VERY detailed -- Fitz got a lot of people to talk A LOT. (I'm not going to detail everything, because it's pretty clear on the read, just going to skip to the criminal conduct.)

One point, Libby's counsel was present with him at every interview. Very good to know -- no question that Libby was tricked into making false or misleading statements or anything along those lines.

There is substantial documentation of facts on every single one of these counts. Fitz is really thorough. Impressive, but expected from a US Attorney.

One Count Obstruction, for a whole host of behaviors that add up to a pattern of deliberately lying and trying to hide information from the Grand Jury, from investigators and from Fitz. This is a very bad pattern, just at first glance on paper. Very bad.

The Two Counts of False Statements clearly show a belief on Libby's part that the Prosecutor would not go to journalists. He felt safe in lying about this, thinking none of them would talk. (Wrong prosecutor to try this with, I must say. Interviews may have occurred in that time frame when Ashcroft was still heading things for the DOJ.)

Two Counts perjury also just plain stupid and bad. The Russert testimony and the Matt Cooper testimony.

I note that Fitz isn't using anything much from Judy Miller in any of these five counts. I wonder if we will hear more about that down the road -- either at the press conference or in any expansion of the investigation if a new Grand Jury is empanelled.

As a first read, I have to say, this looks factually quite well documented and that Libby is a crappy, weaselly person on the stand. I bet the G/J members had an even better take on that as they sat listening to it.

There is a first pass on this. Am going to have to print it out, dissect it, and spend some time doing margin notations, but this looks very bad for Libby. And it may only be a first pass at him -- if there is a second jury empanelled, the potential for conspiracy and other charges still hangs out there. Especially the potential for Espionage Act and possibly even IIPA violations, along with any additional conpiracy worries. Press conference ought to be very interesting this afternoon.


Libby Indicted on Perjury, Obstruction of Justice and False Statements

Andrea Mitchell Can't Fucking Read -- MSNBC just announced that Fitzgerald is telling the Democratic members of the House that in response to their letter, he is going to give them the report they are requesting wrapping up TraitorGate.

Then she read it again and went "oops" -- he's NOT going to issue the report, he doesn't have the authority to do so.

Hopelessly compromised, dissembling shill and GOP political operative Mitchell accused Democrats of wanting a report so they could "politicize" the matter. How about you stop reporting on this until you tell us what your involvement is? Maybe people just want to know what's going on. Is that a political request, Andrea? To want to know what happened here? To want the truth about why we went into Iraq in the first place? Are you saying Democrats are the only ones who want to know why 2,000 Americans are dead?

Well I guess that just might be true.

Update: 9:30 am - Still no docs up at Fitzgerald's website. John from Crooks & Liars is on the case, calling DC and Chicago, who both say that they thought the documents were up. Amato is trying to smooth talk the chick who answers the phone. I'm sure that means it'll be up any moment.

Update: Libby has been indicted on false statements, obstruction of justice and perjury. Five count indictment.


First of Many Today

Sending out a big thank you to the wonderful web-person for the Special Counsel website. Am saying it in advance, because life is about to become hellish for whomever that is.

The first new document is up on the Special Counsel website. You can view it

It's basically a press conference announcement for 2:00 pm ET today, but something caught my eye.

"...regarding the status of the Special Counsel's investigations."

Hmmmmm...sure does sound like we're going to have a scorcher of a day. And if it seems that way to me, imagine being at the WH today.

And also, the media stampede to the 7th floor conference room. How hilarious would that be to watch?

(Still having image issues with Blogger. Will update with pix when I can do so. I've been saving up a couple for today, so I sure hope it starts working soon.)

UPDATE: Interesting article from the WaPo on where Bush may go with the next Supreme Court nominee. Something to read and contemplate while we wait for more docs.

Also, I want to mention how impressive I think that John Eckenrode and the FBI investigation team has been in all of this. I've worked with a lot of criminal investigators, and the vast majority of them have leaked like sieves at the state level, and sometimes even at the Federal level on a high profile case. These guys have done their jobs, kept their heads down and their mouths shut -- and I can't say enough how impressive this has been. The discipline has been very impressive, and they should be commended for it.

UPDATE #2: MSNBC reporting that an indictment will be returned today. They will follow normal procedure on this. More as I get it.

UPDATE #3: Bob Barr just said on CNN that the investigation is focusing on top levels of the National Security staff as well. And is talking about the importance of NOC status and why this case has such enormous ramifications. Holy cow. (Yep, that's the very same Bob Barr who was a Congressman from Georgia. Former US Atty., former Clinton impeachment person for the House GOP side. The very same.)

Jeff Toobin on CNN just brought up a very good point. If Libby is indicted for making false statements/obstruction or perjury regarding from whom he learned about Valerie Plame, and if Fitz has those notes showing that Cheney was the one who told Libby about her. The way that Fitz will prove that Libby was lying will require that the VP be called as a witness in any trial that will occur, pulling the VP right into the center of the case, whether or not an indictment may be issued for Cheney. It's a point that I missed, but one that bears some consideration and repeating. It just gets more interesting today.


Well, Isn't That Interesting?

I'm up, drinking my coffee, watching Imus because he has Timmeh on this morning. And lo, and behold, Timmeh starts talking about his time before the Grand Jury.

Hallaleujah! It's a miracle.

And he said that he testified that he had never before heard of Valerie Plame, and that he was not the recipient of any leak.

Wow, that was tough. And it took him this long to say it? Good heavens!

Russert also says that they are expecting the announcement from Fitz sometime this afternoon. Which, of course, gives Fitz much time with the G/J for the morning if he needs it for voting on things like, say, large indictments and stuff. Luskin spent all that time phoning in the spin last night, and it may be all for nothing. Isn't that sad? Ahem.

Intriguingly, Imus (who I know isn't exactly accuracy in media or anything, but still...) reported this morning that Rove, himself, was the source for some of the reporting, according to the AP. Let me just say that if a client of mine started calling reporters about whether or not he was innocent or wouldn't be indicted, reporters here would just laugh and hang up. Man, I'd love to know for whom Rove was a source, if that's true. That's just hilarious.

Reuters is reporting the following this morning:

One lawyer involved in the case said the attorneys made final appeals to Fitzgerald to try to avoid indictment, raising the prospect of last-minute plea agreements.

When asked whether Rove was trying to negotiate Fitzgerald down to a lesser charge, Luskin responded: "False."
MSNBC is reporting that Rove is telling people he will remain under investigation, that he will not be off the hook at all, and is telling them that he will not be indicted today. (Again, I'm not believing anything until I hear it from Fitz directly. Everything else is spin.)

Luskin has been making the case that any errors in Rove's testimony were inadvertant, according to Bob Kerr on MSNBC. And Fitz is not satisfied with that as an answer. Libby shopping for a new trial attorney (Jeralyn covered this yesterday -- trial is a whole different ballgame, and she's absolutely right that this is the best move for Libby if he's facing indictment.)

Bascially, no reporter really knows much of anything about what will happen today, other than to say that something will likely happen today. More non-news -- and hopefully some actual news -- when we get it. G/J scheduled to meet at 9 am ET, so here's hoping.

UPDATE: MSNBC reporting that at noon, there will be a release of documents. And at 2:00 pm ET, there will be a news conference from Patrick Fitzgerald.

UPDATE #2: Just a reminder about a couple of issues. If there is a plea agreement that includes an information rather than an indictment, that will likely be a part of the document dump today at noon. Also, and this is important to remember, if there is an allegation of a conspiracy, there can be multiple defendants included in a single indictment -- so one indictment may not mean only one person. Wait until you read the actual documents to see what is being alleged at this point.

UPDATE #3: The WaPo has updated its article from last night. A few new interesting tidbits, including:
Fitzgerald has a number of legal options. They range from concluding that no one broke the law, to charging a number of government officials with a conspiracy to unmask Plame or obstruct justice during the investigation. But it was hard to find anyone involved in the case yesterday who believed Fitzgerald will not indict someone today.
Well, that's quite a bit different from last night's all rosy spin zone, now isn't it? Additionally, they expressly say:
It was unclear yesterday whether Fitzgerald had issued formal letters notifying anyone that he or she was a target of the investigation. However, that step might not be necessary for Libby or Rove, who previously have been warned verbally that they face possible legal jeopardy.
Which pretty clearly says, "Hello I'm Pat Fitzgerald, and I may indict your ass." And then there is this:
"The Special Counsel has advised Mr. Rove that he has made no decision about whether or not to bring charges and that Mr. Rove's status has not changed," said Rove's attorney, Robert Luskin, in a statement released this morning. "Mr. Rove will continue to cooperate fully with the Special Counsel's efforts to complete the investigation. We are confident that when the Special Counsel finishes his work, he will conclude that Mr. Rove has done nothing wrong."
Well, that says absolutely nothing. As Fitzgerald is meeting with the Grand Jury as we type, and had a whole night to think about things anew, we really will not know anything until he makes an announcement today.


Thursday, October 27, 2005

Rumor Mill


Rumor mill says announcement of Libby's indictment comes tomorrow, Rove's does not (sorry) but only because he is still under investigation -- this gj gets extended for a short while -- the notes that hung Libby were part of the original document discovery but they were on a hard drive Libby tried to wipe and Fitzgerald reconstituted -- take this all with LARGE GRAIN OF SALT washed down with some hard cider because as we all know by now Fitzgerald's done a superb job of plugging leaks in his office and we are all just extrapolating from very scant information.

Fitzmas eve stocking stuffers:

. video of Fitzgerald testifying before the 9/11 commission, his testimony starts 1 hr. 39 min. into it (it's quite long)

. video profile of Fitzgerald on PBS NewsHour

And via David E., we came across this by Darrel W.:

Twas the night before Fitzmas, and in the White House
Every one was scared shitless, and Bush was quite soused
The indictments were hanging like Damoceles’ sword
As verminous oxen prepared to be gored

The perps were all sleepless, curled fetal in bed
While visions of prison cells loomed in each head
And Dick in his jammies, and George in his lap
Were sweating and swearing and looking like crap

When out on the web there arose such a clatter
The blogs and the forums were buzzing with chatter
Away to the PC Rove ran like a flash
He booted his browser and cleared out his cache

The rumors that flew through the cold autumn air
Made Dubya shiver with angry despair
When what to his horror-filled eyes did he spy?
A bespectacled man with a brown suit and tie!

With an impartial manner that gave Bush the shits
He knew in a moment it must be St. Fitz!
With unwavering voice, his indictments they came
He cleared out his throat and he called them by name:

Now Scooter, Now Libby,
Now Blossoming Turd,
Now Cheney, dear Cheney,
Yes, you are the third
To the bench of the court
Up the steps, down the hall
Now come along, come along,
Come along, all!

He then became silent, and went right to work
He filed the indictments and turned with a jerk
And pointing his finger at justice’s scale
Said, “The people be served, and let fairness prevail.”

He then left the room, to his team gave a nod
And the sound could be heard of a crumbling facade
And we all did exclaim, as he faded from sight
“Merry Fitzmas to all, and to all a good night!”

Update: NYT and Drudge reporting same things -- but Times also says:
Mr. Fitzgerald's preparations for a Friday announcement were shrouded in secrecy, but advanced amid a flurry of behind-the-scenes discussions that left open the possibility of last-minute surprises. As the clock ticked down on the grand jury, people involved in the case did not rule out the disclosure of previously unknown aspects of the case.
I would imagine Blackberrys are still flying and anything is still possible.

Update 2: From the WaPo, who have been wrong on just about everything this week:
Though there was considerable speculation among lawyers for witnesses in the case that Fitzgerald could choose to empanel a new grand jury and extend his investigation, two legal sources said he has indicated he does not plan to take that route and will wrap up the case today.
Well even a blind pig can find a turnip every now and again, we'll see what happens tomorrow.

Update 3: From the LA Times:
People close to the investigation said that, as of late Thursday afternoon, Rove had received no notice that he was going to be indicted. Some observers took that as a sign that the longtime Bush strategist might emerge from the investigation without being charged.

But others said that Fitzgerald might be waiting until Friday to alert those being charged to reduce the chances of last-minute leaks about his intentions.
High-stakes poker is behing played here, throughout the pages of these papers and beyond. They are hardly objective, dispassionate observers.

Update 4: Can we just say the timing on this one is fucked? Just up from the NYT, an article by Doug Jehl on the FBI counterintelligence case into the Niger documents:
The continuing inquiry into the source of the forged documents has been conducted separately from the investigation by the special prosecutor Patrick J. Fitzgerald into the leak case, which has to do with whether Bush administration officials committed crimes related to disclosing the identity of Mr. Wilson's wife, an undercover C.I.A. officer.

Law enforcement officials say they do not believe that the two issues are related.
I am so not happy about having THIS thrown at me just as I was getting ready for a good night's sleep before tomorrow's whatever-it-may-bring.

Update 5: AP hearing the same thing:
A person outside the legal profession familiar with recent developments in the case said Thursday night that Rove's team does not believe he is out of legal jeopardy yet but likely would be spared bad news Friday when the White House fears the first indictments will be issued.

Fitzgerald signaled Thursday he might keep Rove under continuing investigation, sparing him from immediate charges, the person said, speaking only on condition of anonymity because of the secrecy of the grand jury probe.
"Outside the legal profession." Wow, did Marc Corallo get on it that fast?

Update 6: From the WSJ (I'll spare you the bs about Turdy being "a superb political strategist") :
Karl Rove, President Bush's chief political adviser and deputy White House chief of staff, was informed yesterday evening that he may not be charged today but remains in legal jeopardy, according to a person briefed on the matter. Mr. Fitzgerald, who meets with jurors this morning, has zeroed in on potential wrongdoing by I. Lewis Libby, Vice President Dick Cheney's chief of staff, and is likely to charge Mr. Libby at least with making false statements. The testimony of reporters who have been witnesses in the case has contradicted Mr. Libby's public statements.


It is possible that others in the administration could face indictment as well, including whoever originally leaked the name of Central Intelligence Agency operative Valerie Plame to columnist Robert Novak, the first to publish it in July 2003.
Boy I sure would like an answer to that one tomorrow, eh?

No, no. And this is not even a firecracker, but it's true. They did a damage assessment within the CIA, looking at what this did that Joe Wilson's wife was outed. And turned out it was quite minimal damage. They did not have to pull anyone out undercover abroad. They didn't have to resettle anyone. There was no physical danger to anyone and there was just some embarrassment.

So people have kind of compared -- somebody was saying this was Aldridge James or Bob Hanson, big spies. This didn't cause damage.
Or so he said on Larry King tonight. Hey Bob, while you're spewing bullshit, can we hear the one about how Patrick Fitzgerald is turning the United States into a banana republic by jailing Judy Miller?

And you thought we forgot.


Mortituri Te Salutamus

. Reuters reports a Fitzgerald sighting today:
Fitzgerald spent the day in Washington with his deputies as he prepared to wrap up the two-year investigation.

The prosecutor, who has joked about not looking good in photos, took a short break to walk to nearby Antons barber shop, where he got a shoe shine.


"He was very friendly and he looked happy. He was very relaxed," one of the owners of the shop said, adding: "The shoe shine guy doesn't ask questions. Customers have a right to privacy."
Boy, we hope he didn't take our rumpled suit comments to heart. Ken Starr was always quite polished and he was a dick.

. Jonathan Chiat has an interesting rebuttal to Kay Bailey Bitcheson and others who are pooh-poohing perjury:
It's certainly true that not even Karl Rove deserves to go to prison for accidental or inconsequential misstatements. But, if Rove didn't do anything illegal in the first place, then why would he obstruct justice or perjure himself in some substantive way? Clinton's motive for lying was perfectly clear: He wanted to avoid the personal and political embarrassment of confessing his perfectly legal affair with Monica Lewinsky. Indeed, a whole strand of Starr's investigation was set up in order to trap Clinton into lying under oath about his sex life. What motive would Bush's men have to lie except to thwart the prosecution? 
. Jeralyn (who called the whole Scooter/WHIG thing from the get-go) places her bets.

. Digby offers advice to professional bloviators:
This is why we shove their previous mantras about perjury and obstruction and "rule of law" in their faces. This is why we repeat the words that Bush used in the 2000 campaign about "not only doing what is legal but what is right." This is why we always, always, bring this back to the fact that 2000 Americans are dead and tens of thousands are disabled because of a war that the administration lied about --- lies that Karl Rove and Scooter Libby tried to cover up.
. Sean Hannity takes a break from his role as king of the chronic masturbators of Hannidate to bash Fitzgerald, according to Think Progress. Wow. I mean, what, no unpaid parking tickets?

. TBogg wonders if Condi has been a-late night cavorting though the DC piano-bars with Kenn Mehlman, "who can belt out a mean The Man I Love after a few Sweet Bad Mamas, lemme tell you."

. NY Daily News: "While White House staffers were tense, Fitzgerald's team relaxed from their stoic, all-business demeanor. The cheery prosecutors shared an elevator ride with a News reporter and cracked up over a private joke." Roger: "Must be the one that starts, "Libby, Rove and Dick Cheney go into a cell...."

. And IBD is reporting that an announcement of indictments tomorrow could trigger a sell-off of the dollar, Treasurys and stocks. For all the robber barons who put these crooks in office -- don't say we didn't warn you. Everything they touch turns to shit.


The Wheels Are Coming Off

Q. What's the worst thing that will happen to BushCo. today?
A. Well it ain't Harriet Miers

Murray Waas:
Vice President Cheney and his chief of staff, I. Lewis "Scooter" Libby, overruling advice from some White House political staffers and lawyers, decided to withhold crucial documents from the Senate Intelligence Committee in 2004 when the panel was investigating the use of pre-war intelligence that erroneously concluded Saddam Hussein had weapons of mass destruction, according to Bush administration and congressional sources.

Among the White House materials withheld from the committee were Libby-authored passages in drafts of a speech that then-Secretary of State Colin L. Powell delivered to the United Nations in February 2003 to argue the Bush administration's case for war with Iraq, according to congressional and administration sources. The withheld documents also included intelligence data that Cheney's office -- and Libby in particular -- pushed to be included in Powell's speech, the sources said.

The new information that Cheney and Libby blocked information to the Senate Intelligence Committee further underscores the central role played by the vice president's office in trying to blunt criticism that the Bush administration exaggerated intelligence data to make the case to go to war.
Boy when it comes to treason these clowns make Aldrich Ames look like a piker.


Untying a Few Legal Knots

The latest spate of news reports (or non-news reports, as the case may be) keep stirring up the same series of questions. Thought it might be helpful for a few legal knots to be undone, at least to the extent that I can do so with basic explanations. I previously addressed some issues on Grand Juries a while ago, but some additional questions and facts have arisen that needed further explanation, so here goes.

Figured no one was really interested in a law review treatise on any of this, so I'm going to skip the arcane and just hit the essential bits. As with anything in the legal world, there are always all sorts of tangentially related matters, directly related exceptions and all sorts of other legal bits that may apply. This is, by no means, an exhaustive or comprehensive treatment of the subjects -- just a quick primer for the non-legal folks among us, or for the legal folks who never delve into criminal matters (it's a whole world unto its own, believe me).

Is this a Grand Jury or a Special Grand Jury? What is the difference?
After everyone working for weeks under the assumption that this was a special grand jury, based on media reports, yesterday's article in the WaPo revived that question for me. Since there has been no sourcing in any of the articles thus far, I decided to take matters into my own hands and called the Federal District Court Clerk's Office for the DC Circuit this morning. Amazing how such a little thing as the telephone can prove so useful, isn't it?

As it turns out, this is a regular old Grand Jury. The Clerk with whom I spoke told me that "no special Grand Jury is seated at this point" in the DC Circuit. (Am trying to not read into tea leaves that perhaps one could be seated shortly, and just take that as a no special grand jury at present, thanks.)

What this means in terms of the term of the grand jury is this: a regular grand jury has a normal term of 18 months. A special grand jury has a normal term of up to 36 months, if all extensions are requested.

However, and this is a big however for this case, a regular grand jury may also be extended for up to 6 months at the approval of the presiding judge.
Rule 6(g) Discharging the Grand Jury. A grand jury must serve until the court discharges it, but it may serve more than 18 months only if the court, having determined that an extension is in the public interest, extends the grand jury’s service. An extension may be granted for no more than 6 months, except as otherwise provided by statute.
So, perhaps, Friday isn't the end of this particular jury after all. The determining factor is that the extension be in the "public's best interest," which in this case arguably would be based on the late-disclosed information due to refusals to testify (*cough*Judy*cough), obstruction issues, and the late-breaking "come to Jesus" moments that Jeralyn has so aptly described.

I have a call out to determine the exact date of empanelling, the term that has been served (because some extension had previously been granted I believe, and other details -- but I'm waiting for specifics on this), so I will update as I get them.

As this is a matter of national security, and as the Special Prosecutor has had to deal with obstruction and perjury issues from witnesses, I would think that an extension would be granted under those circumstances, should it be requested at, say, lunchtime meetings and so forth, if that is possible under the rules. But I know nothing at all concrete on this, so be warned that this is simply a legal possibility.
UPDATE: Am inserting the update here to be sure everyone sees this. Thanks to reader Sebastian for the heads up -- I missed this in my quick re-read of the legal filings this morning. (No more posting without adequate coffee!)
...the grand jury's term (which was to expire in May 2005) was extended untile late October 2005, when it will finally expire....(from the Government's Memorandum in Opposition to "Joint Motion for Scheduling Conference"
So that means that the end of the 6 month extension would be it for this particular seated jury. This does not, however, in any way preclude the seating of a new G/J, nor does it preclude the voting of numerous indictments up or down today or tomorrow. (I, personally, have presented and had voted 47 individual, multi-count indictments in a single day for vote from a G/J, so it is certainly possible that a lot will happen tomorrow...or not. Hold onto your hats. Looks like a bumpy ride.)

Additionally, should the current grand jury term expire on Friday without an extension, a new grand jury could be convened to continue the investigation, if necessary, until a conclusion is reached on criminal culpibility for indictment.

Fitz would make that call and request to the presiding Judge, who would then approve or deny the request based on the stage reached in the investigation, the alleged criminal activity and its impact on the public, and a number of other factors. One would assume that a national security matter would rise to the level of deserving an extension or empanelling a new grand jury, but those decisions are best left to judges who know all the facts. We'll soon know which scenario is applicable -- as soon as tomorrow.

What's all the hubub about indictments? Can someone plead to a criminal charge without being indicted? What is a sealed indictment? What is an indictment anyway?

Defendants can be indicted by the grand jury as a means of being charged criminally -- but they do not have to be charged in order to enter a guilty plea. A prosecutor also has what is called an "information" in his arsenal as a means of charging a defendant with a criminal charge outside of the grand jury process.

An information allows the prosecutor to work out a plea deal with a potential defendant, often in exchange for that defendant "flipping" or giving substantial cooperation and testimony against others in a criminal enterprise, before the grand jury has ceased examining the case. (This happens a lot in drug and mafia prosecutions where you have interconnected conspiracies and defendants with differing levels of culpibility in the criminal enterprise. Prosecutors start at the bottom and work their way up in these situations.)

An indictment is a statement by the grand jury that says that they feel that it is more likely than not that a person has been involved in the commission of a crime and that a criminal trial is warranted based on the evidence they have seen. This isn't to say that a person is determined likely to be guilty, but that it is more likely than not that they might be found guilty. (I know, splitting hairs, but there you are. A grand jury works at a far lower standard than a criminal trial jury -- a "more likely than not" versus a "beyond a reasonable doubt" sort of difference.)

Prosecutors have a lot of leeway in how they structure the indictment proffered to the grand jury members for voting. They can be broken down by each individual involved in a particular criminal enterprise -- say, if you have 5 people involved in a conspiracy, there can be 5 separate indictments, one for each person. Each individual indictment can contain a single count -- or it contain many, many counts -- depending on the conduct alleged.

Or a prosecutor may seek a single indictment for a particular criminal enterprise that is a large conspiracy, but it will detail the various people alleged to have participated in this scheme and who are implicated by this indictment. So every time you hear some rumor that there is only one indictment -- well, that doesn't mean a whole hell of a lot, unless you know what kind of indictment it is, now does it?

A sealed indictment is one which is kept from being publicly disclosed for a time, until the defendant has been arrested and arraigned before a Federal Magistrate Judge. Sealed indictments are often used in cases where there is an ongoing investigation (Such as drug cases, where you work up the chain from the small dealers to the bigger ones, but you don't want to tip anyone off that you are investigating their network if, say, you've flipped a few low level people and are using them to do controlled buys up the chain.) and/or you have defendants that you are afraid will flee your jurisdiction before they are apprehended. But they may also be used for other reasons, including security and other considerations, if approved by the presiding judge.

What is a "creative prosecutor?"

In my experience, the people who complain about a prosecutor being creative are criminal defense attorneys and family members of the people indicted. In this case, it's GOP strategists, who haven't complained at all about the "creative" use of detaining people of interest for terrorism cases without any hearing, any legal representation or any due process for months. Ahem.

Prosecutors are limited by the laws as written by Congress. However, if someone has broken a law, and is charged with that particular conduct, the prosecutor should not be castigated for charging the violation simply because other prosecutors are either too lazy, too uneducated, or too busy to use prosecutions for that law themselves -- even prosecutors sometimes get into a rut in terms of what they do and don't charge. A good prosecutor avails herself of all the laws, not just a select few.

No matter how you label a prosecutor, that does not change the fact that the underlying conduct may have violated a law on the books. And since Congress makes the federal laws, hearing Congressional members complain about "creative prosecutions" is really kind of amusing. Those darn perjury technicalities and all.

What's with all the late gumshoe work and sending out the FBI guys this week to talk with neighbors and stuff? Does that mean the prosecutor has been sloppy about details like some talking head person said on TV or what?

Well, no. What it likely means is that some witness with whom investigators spoke recently made some very specific factual claim about something that was or was not said or done that involved the Wilson's neighbors. Like any good prosecutor, Fitz would have investigators check and double check any factual representation made to him.

For example, the WaPo article that Jane talks about below indicated that Adam Levine (a former Rove aide) had been re-interviewed and that he spoke about talking with some of the Wilson's neighbors. Well, there's a fact they might want to double-check right there, isn't it? (UPDATE: Per PollyUSA's comment, I re-read the WaPo paragraph and I'm not certain that it indicates that Levine talked with neighbors. But I'm not ruling it out. Maybe they will clarify-- I sent an e-mail asking for clarification and will report back if I get it.) And if Rove or some other witness made other statements of fact, they'd be out checking those as well. I mean, honestly, would you take any of these people at their word at this point? Yeah, I thought not.

Some great resource pages on grand juries, indictments, etc.:

* University of Dayton Federal Grand Jury Resource Page

* ABA Grand Jury Resource Page

* Law Info Grand Jury Resource Page

Also, some great information always on TalkLeft, Mark Kleiman, and a whole lotta other blogger pages that deal with legal issues.

(Graphics love to Physics News Graphics for the intriguing map of "A sequence of photos showing how a model polymer, made of tiny balls connected by rods, can untie itself when being shaken. Science. So infinitely cool.)

UPDATE: Still waiting on a call back on verfication on jury information. Something tells me that no one will be answering any questions until tomorrow. Sorry gang -- wish I could be more precise on the extension/non-extension possibilities question.

I'm also adding this from the comments. OtisIsHungry's practice is a much more Federal-centric one than mine was -- I was a State prosecutor and when in private practice did some, but not exclusively, Federal criminal appointments. This is useful information and I wanted to be sure that it didn't get missed in the comments. Otis said:

Couple piddlin' picky points:

RH wrote: but they do not have to be charged in order to enter a guilty plea. A prosecutor also has what is called an "information" in his arsenal as a means of charging a defendant with a criminal charge outside of the grand jury process. (RH: That's what I get for trying to shorthand this information too much for everyone.)

Otis responds: The 5th Amendment requires no one can be put to trial for a federal felony unless they've been charged by Indictment, however, a defendant may waive that right in Federal court and plead to a felony charged by prosecutor's Information. So, unless there is already a deal-- a signed, sealed and delivered deal-- anyone charged in this case will first be in an Indictment, which may later be dismissed in favor of a plea to a reduced charge in an Information, or, more likely, a flipper will be allowed to plead to a lesser liabilty count originally included in the indictment, and the rest will be dismissed. Salient point-it is always possible that there are deals (plea agreements) struck and signed and filed under seal. Cooperators or flippers can be useful at trial against anyone who still hasn't caved and is going to trial, not just for testimony in the GJ. After the GJ is finished, there will still be flippers getting deals.

RH said: say, if you have 5 people involved in a conspiracy, there can be 5 separate indictments, one for each person. (This is where my State experience and the Federal rules differ and I failed to differentiate that in my post. Sorry!)

Otis responds: Federal rules for joinder (FRCrP 8)say ,"no." One conspiracy= one indictment, no matter how many defendants; however, defedants or substantive counts in the indictment may get severed for trial for various & particular reasons not relevant now.

RH said: In my experience, the people who complain about a prosecutor being creative are criminal defense attorneys and family members of the people indicted.

Otis says: In my experience, a conservative is a liberal who hasn't been indicted yet! ;-)

UPDATE #2: For those looking for some great information on Plea Agreements/Deals, Jeralyn has a great post on the subject on TalkLeft here. Here's to many plea agreements -- for that will mean many defendants. Get your deals while they still exist.