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Saturday, October 08, 2005

Oh, What a Tangled Web...

The story just keeps on spinning in the Traitorgate universe. There have been a spate of articles the last couple of days with multiple anonymous sources close to the case -- some legal, some investigative, some clearly with only spinning credentials to their name. It's enough to make a spider dizzy. The time has come to try and pick the latest spin apart, thread by thread. I'm going to make a start with some thoughts on Waas' article, and then do some more analysis over the weekend on some of the other very intriguing articles.

The most recent article that Murray Waas put together for the National Journal is a doozy. (Note to TraitorGate obsessives out there, Waas says on his blog that he will be adding more to the story over the weekend. Stay tuned.) A source dropped the bombshell (or the prepared ticking bomb for Rove to soften the blow for the Preznit) that Rove had just plain lied to Bushie when asked straight out if he had said anything to anyone in the press about Wilson's wife or otherwise. Or did he?

What Rove is reported to have said, according to Waas' article, is "he had not disclosed to anyone in the press that Valerie Plame, the wife of an administration critic, was a CIA employee...." Rove also reportedly told the Preznit that he hadn't done any leaking to the media in order to discredit Joe Wilson. Let's parse this, shall we? It may be true that Rove did not expressly tell members of the press or others that "Valerie Plame" was a CIA employee. (We're getting into the "definition of is is" territory here, so bear with me...) What Rove actually said was that Wilson's wife worked at the CIA (according to Matt Cooper at Time, anyway). See the enormous difference? No? Yeah, me neither.

And I think it is very clear that Rove made statements to a number of reporters, including Cooper and Bob Novak -- to name two whose statements about Rove's involvement have actually been printed -- which were intended to discredit Amb. Wilson.

Who was this source for Waas? My nominations and their motivations: (Please feel free to speculate in the comments if you have more to add. I know I'm missing someone. And...some of these are just for fun. Probably don't have to say it for the regulars, but I don't want wingnut e-mails. Some of those folks have a very small...sense of humor.)

- Karl Rove -- Falling on his sword for Bushie, earning GOP loyalty points and saving his machine for Mehlman to run for him while he's...ahem...away.
- Andy Card -- Saving Bushie, getting Karl out of his way so the Preznit can get back it is he does left to his own devices.
- Karen Hughes -- The Middle East listening tour? Not so fun, and she wants her old job back. But what to do with the Dough Boy?
- George Tenet -- Finding a place to stick that knife that Rove has been trying to put in his back. Never, ever mess with the Company.
- WH Counsel's Office -- Things aren't so peachy for Harriet at the moment. Might be a little distracting if Rove went down in flames.
- Scotty McCellan -- "See how you like the press briefings now, beeyatch."
- Scooter Libby -- If Karl goes down, maybe everyone will get a pardon.
- Barney -- That Rove guy smells like mothballs.

All kidding aside, for me the bottom line is this: it simply is not credible that Rove would just forget altogether conversations with Cooper, Novak, Pincus, Kessler, Russert and/or Miller (and whomever else that we haven't heard mentioned) after just a couple of months. (I know Rove hasn't been directly linked with every one of these journalists, but since they have all come up as having a WH source, I'm including them since Rove may have been involved in planning for the conversations with them.) That's too many conversations about a single subject over a concentrated period of time, when Wilson was on Meet the Press and other news shows and Bushie's poll numbers were dropping faster than the drawers of a whore with her rent due.

The discussions with these reporters occurred through June and July of 2003 -- after the Nigerian envoy op-ed in the Times but prior to Amb. Wilson's byline op-ed there in early July. The President spoke with Rove, according to Waas, in the early Fall of 2003. I know that Rove has a lot on his plate, but he had to know this would come up -- especially when his name was linked in media reports as a possible leaker at the time -- and he just didn't bother to think about the multiple conversations that he had with reporters where he mentioned "Wilson's wife" as being the least bit relevent? Especially the one where he told Chris Matthews that she was fair game?!? And that was closer in time to when the President would have been speaking to Rove. Come on!

This is either a very telling commentary on how the Preznit's staff truly thinks about him and his level of gullibility and ignorance -- or it is a telling commentary on what the entire Administration thinks about the gullibility and ignorance of the American people.

The grand jury is going to determine how credible they find Rove's "oops, I found my e-mail" story about his change of testimony (after Fitz got appointed as special prosecutor, btw -- the Sgt. Shultz "I know nothing" statements about only saying "Wilson's wife" and not knowing that she was a NOC by Rove to the FBI came while Ashcroft was still refusing to recuse himself from the case due to his blatant conflict of interest, Rove being a former client of his and all.). This whole sordid mess smacks of a group of people who thought they were too clever by half, and who relied on Ashcroft running the show and never making it past IIPA as his prosecution strategy. Sorry for your luck on that one. (Well, no, not really. And I'm awfully glad the statues at the DOJ don't have to wear togas any longer, too.)

I'm thinking that Judy's recent "Ooops, I found my notes." might make it appear like a habit for this group. And if it starts to look like a habit, that makes it very difficult for the grand jurors not to look at everyone with a slightly jaundiced eye.

One of my favorite quotes in the article comes from Stephen Gillers, a law profefssor at NYU, who says:

"Misleading the president, other officials of the executive branch, or even the FBI might not, in and of themselves, constitute criminal acts. But a prosecutor investigating other crimes-such as obstruction of justice or perjury-might use evidence of any such deception to establish criminal intent. And a lack of candor might also negate a claim of good faith or inadvertent error in providing misleading information to prosecutors."

Wass also includes a further quote from a former US Attorney in the DC office, saying that "if Rove purposely misled the president, the FBI, or the White House press secretary, a reasonable prosecutor might construe such acts as "overt acts in furtherance of a criminal plan."" This is absolutely right. If there is a pattern of corruption, a pattern of behavior that begins to form a nexus around a common plan or scheme to commit a series of acts in furtherance of that plan, with two or more members of the group, then you can certainly start to think about charging conspiracy. And that is almost certainly on the table in this case, just based on what we know publicly.

I vote for the next big dust bunny revelation to be Tenet's "Ooops, I found my detailed surveillance dossier and daily diary." Please, oh, please -- I've been very good this year.


Please Take a Moment...

Please take a moment to send a prayer and a thought from your heart toward the survivors and family and friends of everyone in the Pakistan-India region that suffered a massive earthquake today. Over 400 children were killed in two schools alone today, and the death toll will continue to rise as rescuers try to dig through the rubble to find survivors. So much sorrow in a region that already lives through an enormous amount of conflict and difficulty every day. My sympathies to those who have lost, and my profound hope for good news for those who are waiting through the long night tonight and in the days to come.


Mwahaha! This Is Your Strategery?!?!?

This is the best you could do, Karl? Jeff Gannon/Guckart/Gucky/whatever is one of the people trusted to take a peek at the State Department top secret memorandum? You know, the one that was marked "Secret" in clear letters? That was a violation of the SF 312 to disseminate to anyone without proper clearance? The memo that is still classified?

Gucky -- Of the faux Marine status on his resume? The male escort website escapades? The puffed up news credentials that got him seated as the White House ringer in the press room? (Hat tip to the fabulous David E. for bringing this article to my attention.)

THIS is your last line of defense? Oh man, you are SO screwed!
An analysis piece in today's Salon revisits Gannon's slip of the tongue to Ambassador Wilson during an interview -- the one where Gannon asked him the following question, as posted by Talon News on its own website (later removed) on October 28th, 2003:

"An internal government memo prepared by U.S. intelligence personnel details a meeting in early 2002 where your wife, a member of the agency for clandestine service working on Iraqi weapons issues, suggested that you could be sent to investigate the reports. Do you dispute that?"

I mean, not to jump on him or anything, but Gannon is one of the people on whom the WHIG crowd is depending for their secrets to stay...well...secret? (And for a delightful overview of the whole Gannon fiasco, take a peek at the lovely Jane's summary here.) Seems that may not be working so well.

According to Joe Conason in Salon, Gannon told reporters last February that FBI agents working with Fitzgerald had spoken with him about how he learned of the State Department memo. His story? He says he read about it in the Wall Street Journal. Ummm...yeah...and Judy's dog ate her notes. Oh, wait...

UPDATE: Now this is something to make a detail oriented gal such as myself weak in the knees. Eriposte at the Left Coaster is my hero -- there is nothing better than actual facts to stop spin dead in its tracks and make it run whimpering into the nearest dust bunny corner. (No, might be there.)

You must take a look at this: according to The Left Coaster, Gannon interviewed Amb. Wilson in September of 2003 -- a full month prior to the article regarding the INR appearing in the WSJ. Oops. Guess he and Fitz may have something to talk about after all. (If they haven't already -- whether or not Gannon has been before the Grand Jury is pretty much an unknown at this point, since he caught a case of the clams after bragging to media outlets that the FBI had spoken with him last February.)

Or perhaps Mr. Gannon has a stockpile of soap on a rope, just in case. Maybe he can share with Karl and Scooter.

UPDATE: Great alternate theory on the whole Gucky mess here. So Gannon/Guckart was either a partisan hack or a plagiarizing hack? Ooooh, can I pick which one? Ummm....both. (Big hat tip to the Left Coaster for the link.)


Friday, October 07, 2005

Judy, Pinch and a Boy Named Scooter

In a furious bout of post-prison housecleaning, Judy Miller just "happened" to find notes today from June 2003 when she spoke with Scooter Libby about Joe Wilson.

Of all the amazing discoveries. She's the fucking Indiana Jones of dust bunnies, that one.

I keep coming back to the September 15 letter (PDF) from Scooter Libby to Judy Miller, kind of like a scab you just can't help picking at.


1. In Patrick Fitzgerald's "leaked" letter of September 12, 2005 (PDF) to Libby's lawyer, Joseph Tate, he runs down the facts as told to him by Libby:
Mr. Libby has discussed a meeting with Ms. Miller on July 8 2003, at the St. Regis Hotel and a later conversation between Mr. Libby and Ms. Miller by telephone in the late afternoon of July 12, 2003. Mr. Libby has described his recollection of the substance of those two conversations, without limitation.
Libby was most probably quoting the party line that everyone else was testifying to -- namely, that whatever was done to Joe Wilson came in response to his July 6, 2003 editorial in the New York Times entitled What I Didn't Find in Africa. They weren't trying to smear him, doncha know -- they were just providing appropriate counterbalance to what he was saying, trying to helpfully provide the press with some mitigating factors.

Thus began the Rove as Whistleblower meme we all remember with so much fondness.

2. Joe Wilson, in his book and elsewhere, has long maintained that the White House Iraq Group -- whose notes and records Fitzgerald has subpoenaed -- did a workup of him in March, before his editorial was ever published. As early as his October 13, 2002 article in the San Jose Mercury News, Wilson was calling 'em all a bunch of hosebags. He had been flying in their radar for a while.

3. When Libby wrote his sodden mash note to Judy it seems to me that he was quite obviously trying to hip her to the fact that it was okay to talk about anything that happened in July:
The Special Counsel identified every reporter with whom I had spoken about anything in July 2003, including you. My counsel then called counsel for each of the reporters, including yours, and confirmed that my waiver was voluntary.
Translation: It's okay for you to talk about July meetings but nothing else.

Judy Miller was sitting in fucking prison on tenterhooks. She's had plenty of time to think about each and every time she met with poor lovestruck Aspen-riddled Scooter, and what the implications were of each and every one of those meetings along the way. She didn't fucking "forget" an entire month there looped on pruno. Scooter let her know what she could say. And she probably complied.

4. If Libby was lying, he did not believe that there was anything provided to Fitzgerald that was going to contradict what he had to say, like -- oh -- the minutes of the White House Iraq Group, or the testimony of those in WHIG, including Karen Hughes, Mary Matalin, Condi Rice, Stephen Hadley, James Wilkinson and Nicholas Cailo, in addition to the Rove man himself.

5. On Thursday, September 29, when Judy agrees to testify, Fitzgerald goes to the slam and spends a little quality time with her, just to get her story down before she goes and has a steak with Pinch. (Does she have a thing for men with awful names or what?)

That night, Fitzgerald calls up Joe Wilson, and confirms what he probably already knew one way or another -- Judy and Scooter were talking as early as June, contrary to what both were saying.

(Emptywheel has penned a nifty little dramatization of this particular sequence of events. Highly recommended, Oscar-caliber stuff. Considering the skeevy characters involved, we applaud her for leaving out the sex scenes.)

6. Suddenly Judy REMEMBERS her earlier "notes" and meeting with Scooter. I'm guessing the dog didn't just barf 'em up -- her attorney probably got a helpful memory-prodding phonecall from Fitzgerald, who probably knew Judy was going to lie her lying face off all along.

7. Suddenly -- VOILA! -- a SLEW of people want to come in and spend quality time with Fitzgerald and the grand jury again. They are VOLUNTEERING. Because, as you know, testifying before Fitzgerald's grand jury is all the rage in DC these days, and everyone needs a hobby.

I will leap to the presumption that the "we were just reacting to Joe Wilson's editorial" group bullshit is falling apart faster than a cheap thong in a hot dryer. It's hard to know just how much sleight-of-hand went into perpetuating this particular lie, but I will wager no small amount.

Note to self: do not EVER play poker with Patrick Fitzgerald.

(hat tip to Mrs. K8)

(cross-posted at Hullabaloo)


Come In From the Cold, Judy...

Well, looky here. Judith Miller, NY Times diva and patron of the St. Regis hotel in DC, discovered some more notes of conversations with Scooter Libby -- this time for conversations in June of 2003. And she has given them to Patrick Fitzgerald, according to this Reuters story. Judy, come in from the cold!

UPDATE: Reuters has
fleshed out the story a bit, and it is getting very interesting, indeed. This is my favorite tidbit:

"One source involved in the investigation said Miller's notes could help Fitzgerald show a long-running and orchestrated campaign to discredit Wilson, which could help form the basis for a conspiracy charge."

UPDATE #2: Posted this in response to a question someone had for me at The Next Hurrah. (Enormous hat tip to emptywheel, btw, who has done tremendous work piecing all the disparate threads of this case together. I think Fitz ought to hire her on as a paralegal for trial.) Am crossposting it here, because once I got done with it, it seemed like it might be useful information for the non-legal, anal retentive or Traitorgate obsessed among us. So here goes -- this was in response to something regarding questioning a witness and whether or not Fitz knew that Judy had more information and, if he did and she failed to testify to it, what that would mean for her. Basically, what do Judy's lost and found notes mean? I added a couple of points here and there on a second read through -- those are noted with italics below, just for clarity's sake.

Sorry I've been MIA (thanks to obsessed for the e-mail letting me know there was a question for me, btw!). My toddler has a bad cold and I've been trying to manage posting at firedoglake and chasing a small snot monster around with an evil kleenex in my hand. It hasn't been a pretty day. lol

They teach you in law school not to ask a question that you don't already know the answer to when you are in trial or on the record, as you would be at the G/J. Fitz strikes me as the same sort of organized, tabulated notebook sort that I used to be prepping for a big trial -- I can spot a fellow anal retentive a mile away -- and I'm certain he and his staff have individual fact sheets, notebooks, timelines, overlapping timelines, highlighted grand jury testimony, summaries of testimony outtakes that are conflicting...I could go on, but you get the picture.

Out of that level of detail, you get a much better sense of the entirety of the criminal enterprise, and the personality and level of culpibility of the actors involved in it. You also get a very good sense of what facts you have nailed down entirely, and what you are missing. At this point in the investigation, after all of the FBI interviews and follow-ups from those, from testimony given and the follow-ups from that (and from some of the newspaper leaks from defense counsel) -- I would bet that Fitz has a very good sense of where things stand and that he is wrapping up loose ends, or cementing a lot of thread connections.

This sort of thing almost always forms a pattern, because people operate in very familiar ways that are generally unique to themselves. They get comfortable in an environment, they do something wrong and no one catches them, and then they get cocky -- and that's where they start making mistakes. Bragging to someone, leaving little signature clues because they want someone to know that they were the ones perpetrating the mess, whatever. It is the ego that trips people up most of the time. Ego and hubris.

For Judy, I would say that Fitz knew everything that she was going to say before she said it -- he needed her mainly for corroboration. He had credit card receipts from meals purchased or phone logs or e-mails or direct eye-witness testimony or whatever (maybe Hannah on the Libby end of things), but he knew what he wanted from her. And the notes probably came up as a result of her either (1) not being completely honest and his threat of there being obstruction or perjury charges filed if she didn't cough up the rest or (2) he reminded her that she had to be completely honest about everything in a way that was frightening in terms of consequences for not doing so, and she went back to her home and office and searched through everything to be certain she had remembered it all and found those notes.

If she wasn't trying to hide anything and it was an honest mistake in terms of her just not remembering a conversation from two years ago, then she'll be likely okay. (Although what she was doing in jail all that time not going over every detail of all this, I have NO idea. Maybe knitting a poncho?) She'll provide amended testimony and fully detail her new set of notes, and most likely be doing a very thorough search of every square inch of her office and home before Tuesday when she is reportedly meeting with Fitz.

If, however, Judy was withholding information and those notes to protect herself or someone else, and Fitz knew that she was doing so -- or found out after her testimony from someone who is cooperating fully that she lied or failed to disclose something important -- then she is in a heap of trouble. All deals would be off in terms of whatever promises Fitz made of not prosecuting or use immunity fo her testimony or limitations on topics. Almost every deal for testimony requires that the witness be honest and give complete testimony, and that breach of this renders the agreement null and void. Anything that happens from here would have to be re-negotiated with Fitz - and our boy Fitz does NOT like a liar. Especially one that tries to lie to him. And I wouldn't have wanted to be Judy when Bob Bennett got off the phone with Fitz about this, because no one likes a client who is less than forthcoming -- and Bob Bennett seems like the sort of fellow that also prepares down to the last detail and I would bet that the new notes may have been a surprise for him as well.

We'll see which it is when things shake out in this case. But if I were Judy, and I lied to Fitz, I'd be offering him up every little plum that I know to save my hide. This is the best possible position for Fitz to be in, in terms of strength on Judy: he already has the newly "found" notes, if she lied then her deal is off, and he has an open line for pressure and demands. And he can hold that over any number of other heads that could roll in this case. I'm telling you, stock up on popcorn.

UPDATE #3: Here's a juicy little tidbit buried in the LA Times print edition in a story on Rove testifying again.

"However, there was an additional sign that Fitzgerald continued to investigate aggressively. He phoned Wilson on Sept. 29, the same day Miller, the New York Times reporter jailed for refusing to divulge her confidential source, was released from jail after agreeing to testify in the case. She testified the next day....Wilson declined in an interview to discuss the nature of their conversation, but confirmed that it occurred."

Sounds like our boy Fitz is doing more follow-up work. Wonder how that fits in with Karl being called back for next week?


Bush Boots Me For His Fake Subway Story

So I'm sitting at MSNBC in the chair, I've already been in hair & makeup for an hour, I've got a mic crawling up my bra, I'm chatting with the producer through my earpiece and in between watching myself on the monitor and thinking how MY hair looks better than Monica Crowley's I'm watching Bush's fake subway crisis and thinking up good lines -- "it really won't stop the approach of Hurricane Patrick" -- and I get booted.

Did Karl Rove know I was going to be on pissing all over his candy-ass crisis and bringing the story back to Traitorgate where it belongs? I'm thinking -- probably not. I'm probably just colossally unimportant in the MSNBC scheme of things. But I was really looking forward to launching a few zingers. (*sigh*)

Right now I'm a Crooks & Liars Central, and John can testify to the fact that my hair does, in fact, look great.


In the Hot Seat

According to Murray Waas, today is the day for Rove. Waas has had some great sourcing on the Traitorgate story, so I guess we'll all see when the cameras start clicking away as Bush's Dough Boy and his posse of expensive attorneys make their way up the sidewalk and back from the federal building. There were a flurry of stories, containing lots of "unnamed sources close to the case" or "lawyers speaking on condition of anonymity." (See Jane's summary from last night on the latest NY Times and LA Times takes on the case.)

But the big question remains, why? What would make any witness, let alone Rove, be so desperate to appear under oath before a grand jury considering indictment a fourth time? I mean, honestly, it is an unusual move on the part of a potential defendant. Multiple trips to the witness chair open a Pandora's box of inconsistencies in statements -- both to the grand jury and to investigators from the FBI. As defense counsel, the thing you try to do above all else is limit the times your client opens his mouth.

Why testify now? Because politics is intertwined with all of this mess. It's fitting, really, since it was politics that began the whole mess to begin with -- Amb. Wilson attempted to alert the public that all was not well behind the curtain in the Emerald City, and was attacked by Rove and Company like a pack of winged monkeys, swooping down to exact revenge in the form of political payback.

But in their swift retribution maneuver to staunch the bleeding and silence any more would be critics, the President's cronies missed one very important point: national security, especially at a time of war, is a non-political issue and that you protect at all costs the men and women who put their lives on the line to keep the rest of us safe.

When they exposed Valerie Wilson from her NOC list protection, they also exposed all of her fellow agents working under Brewster-Jennings and Co. cover, they wasted the millions of taxpayer dollars needed to set up that sort of cover company, and they exposed every single field asset who may have been working with these agents. All of this at a time when we were at war with terrorists who were trying to get their hands on the very WMDs that these agents and assets were working to eliminate. Sounds like treasonous behavior to me.

And now, it is Rove scrambling to save his hide, because in politics a public taint from an indictment can spell ruin. You can't get good work as a political strategist when every time you appear in a photo with your candidate, the caption reads "Convicted felon Karl Rove and Joe Blow politician."

No matter the spin in all of the articles overnight and this morning, the bottom line is that Karl is in trouble. And they know it. This is a move designed to go over Fitzgerald's head directly to the Grand Jurors themselves -- a strategy Rove has employed over and over with the President to end-run the media. But it carries a LOT of risk -- Karl will be sitting in the witness chair with the entire grand jury watching his every move, his every bead of sweat, his every little slip of the tongue...and Fitz will be right there to follow-up on every single one of them.

It occurred to me this morning during my ultra-super-nutritious breakfast of a chocolate covered Krispy Kreme (or Krispy Krack, as I like to call them) and coffee, that a little detail on just what happens when someone testifies to a grand jury would be helpful to everyone. So, here goes:

The witness enters the room and is asked to raise his right hand and swear to tell the truth, whole truth and nothing but the truth. The witness is then seated in the chair provided for testimony, and questioning begins. You usually start with introductions, if the witness is new to the jury, but since Karl will be there for the fourth time, that won't be necessary. (snark intended)

As a prosecutor, you prepare, endlessly really, for this sort of thing, writing out potential questions on legal pad after legal pad, outlining and timelining the evidence that you have, putting together a story board of sorts on who has said what so that you can get to the heart of any big discrepencies. The way Fitz runs his investigative grand juries, according to every report that I have read, is a more interactive way -- allowing lots of questions from the jurors as well as his own questions. And then Fitz will be able to follow-up on any testimony that doesn't square with what he already knows, asking question after question if necessary. Honestly, you prepare all these questions in advance, and you hit a lot of them -- but there is always a moment when a witness veers off on a tangent, and it is the tangents that can prove the most useful.

Defense counsel is not present during testimony, so Rove will be on his own unless he stops the proceedings and asks to consult with his attorney outside the courtroom before answering a question. This is common, but it always leaves the jury feeling ever-so-slightly uneasy as they wait for the legally parsed answer that inevitably comes after this sort of consult. Depending on the number of issues that need to be addressed, testimony and questions can last for a few minutes or for days. And I do mean days. It all depends on whether Fitz and the jury crack into the heart of the case --and how forthcoming or not each witness is willing to be.

What this does is it gives the jury one last opportunity to test Rove on his factual representations -- and I think Waas and others are absolutely right in saying that Rove's offer to testify initially coming in July coincides exactly with Cooper's testimony in mid-July, and likely means that there were discrepencies between Rove's testimony or statements to the FBI and what Cooper is reported to have said to the jury. Rove likely wants to clean that up. And quick.

Does this mean if Rove re-casts his testimony, that there will be no charges? ("I didn't mean I never spoke with Matt Cooper at all. What I said was, I did not speak to him about Valerie Plame. I said Wilson's wife." You know, the sort of hairsplitting that Republicans were all over with Bill Clinton during the whole Monica thing.) Not necessarily.

It can mean several things, but I think David Corn has an excellent summary on this today on his blog, where he says that Rove is either trying to spin the "what the meaning of is is" sort of testimony, looking to cut a deal, or that Rove is aware that someone flipped on his ass and he's trying to spin things back his way. I would add that perhaps Rove just thinks his big brain will allow him to outsmart Fitz and use his powers of appealing persuasion to just knock the socks off the jury and get them to refuse to indict anyone. (And before you laugh, Chuck Robb did just that in some testimony on a wiretapping investigation a few years back, so it is possible, if not highly improbable.)

What is Fitz after? Well, only he and his staff know for sure, but a good bet is that he wouldn't be going through the trouble of bringing Rove and all his best pals back onto the hot seat for a friendly little coffee klatch. Nope, I think Fitz is looking at something big -- and Rove is betting the farm on his winning personality and persuasive skills. For the record, my money is on Fitz.

NOTE: Jane will be appearing on MSNBC today at 12:45 ET. It is some must see TV, so set your Tivo accordingly. She'll be talking popcorn storage, the LA blogosphere and why Traitorgate is so important. Should be fun!

UPDATE: The Note is saying that Rove will not be testifying today. (Hat tip to Crazy Barrone for letting me know. Thanks.)

"The grand jury investigating the leak of a CIA operative's name in 2003 meets at 11:00 am ET at the federal courthouse in Washington, DC, but Karl Rove is not expected to testify today."

Seems the ABC reporter Jonathon Karl got Luskin on the phone, and he said Rove wouldn't be in today. The Note also contains this tidbit gleaned from Karl's reporting:

"He says Fitzgerald has sent no target letter or indicated in any way that Rove is a "target.""

That's a bit of a difference from the carefully parsed "hasn't sent a letter to Rove" that we were hearing yesterday. This is developing, so more will be posted as I get details.

UPDATE #2: The NY Times has updated its story again to add this little nugget:

"Meanwhile, Mr. Fitzgerald has indicated that he is not entirely finished with Judith Miller, the reporter for The New York Times who recently testified before the grand jury after serving 85 days in jail. According to a lawyer familiar with the case, Mr. Fitzgerald has asked Ms. Miller to meet him next Tuesday to further discuss her conversations with I. Lewis Libby, the vice president's chief of staff."

Wonder if Rove was held off on testifying until Fitz had some more time to put the thumb screws on Judy? Or vice versa? Either way, things are red hot -- and the deals that may or may not be cut over the holiday weekend will be a lot better than anything indictees will see after the grand jury starts sending out the paperwork.

And a note to the folks at CNN and Bob Franken: you almost gave me a heart attack when you just said that "Prosecutors were looking at Vice President Dick Cheney........'s Chief of Staff Scooter Libby." That pause was pregnant enough that I almost started my happy dance.

Personal note here as well -- my toddler has a horrible cold, and we have spent the morning playing "snot monster running away with mommy and her kleenex." Sorry I haven't been around to answers questions as much, but mommy duties come first. It's naptime, so I'm trying to do a news round-up and comments update now.

UPDATE #3: Bob Barr, former Republican Congressman from Georgia and wingnut, who also has US Attorney credentials on his resume, just said on CNN that he thinks Rove testifying for a fourth time is really unusual and that the facts as he reads them in all of the leaks, news stories, and such are pointing to possible obstruction and perhaps perjury charges. You know things are looking bad for Karl Rove if Bob Barr is willing to speculate out loud about possible indictment charges. Ouch!

UPDATE #4: The NY Daily News has an article up on the Rove grand jury speculation and Traitorgate that contains a couple of very interesting nuggets. One gem comes from a "former CIA official familiar with the investigation" (Tenet, anyone?):

"there are contradictions in the testimony of Rove and Vice President Cheney's top aide, Lewis (Scooter) Libby, two of the administration's heaviest hitters."

Hmmmm...isn't that interesting? Wonder if Judy corroborated Scooter's story, Rove's story or neither? Guess that is why Fitz wants everyone back in for another go at questions. There is a series of bits given by a "close friend of Rove's" on background, all trying to minimize the significance of Rove's fourth appearance and potential criminal jeopardy. And then this little lovely bit:

""It would cause me great concern if my client, at the end of an investigation, got called in a fourth time to testify," said Solomon Wisenberg, a former deputy to independent counsel Ken Starr. "It sounds like Rove may be closer to being indicted. There's no way somebody in Rove's position would go in a fourth time unless he was trying to save his own professional skin," he added."

First, Bob Barr on CNN. Then a Ken Starr acolyte? Man, the rats sure are jumpy, aren't they. Finally, this little descriptive nugget amused me.: "At the White House, staffers weren't talking. But one well-placed source described the mood as a "normal high level of paranoia."" Doesn't sound like a group of people who are having a very good week, now does it?


Not a Good Week for BushCo

Mohamed ElBaradei, head of the UN watchdog agency, the International Atomic Energy Agency (IAEA), and the organization itself have won the 2005 Nobel Peace Prize. Some of you may remember ElBaradei from the wonderful BushCo press conferences prior to the Iraq War where the Preznit and his cronies all but called the IAEA incompetent. Look who is being called incompetent now!

Just wanted to take a minute away from the Traitorgate story to congratulate Mr. ElBaradei and his hard-working and dedicated staff for winning this prestigious award. They do the tough work in the field -- in Iran, in North Korea, in Pakistan, you know, in the countries that actually have existing nuclear programs. This is especially sweet, because you just know it is adding to the heap that is piling on the White House this week and sticking in Cheney's craw.

Poor Bushie. If he had only listened to ElBaradei back in 2002 about Iraq having no working nuclear program, instead of Cheney's band of merry neocons who said we would find nukes and WMDs everywhere (um...good call, that...not), we might not be so bogged down in Iraq. It's worth a reminder about all of this, given the fact that Amb. Joseph Wilson was trying to speak some of these very truths when Rove and Company hatched the little plan to get even. You know, the plan that now has them in so much hot water. "Oh, what a tangled web we weave, when first we practice to deceive." (Hat tip to Sir Walter Scott on that one.) Go get 'em, Fitz -- the whole, stinking lot of them.


Thursday, October 06, 2005

Mr. Fitzgerald Requests the Honor of Your Presence

It is damned hard to keep up with all the "leaking" being done on behalf of the various TraitorGate players. If discretion is the better part of valor, it is yet another indication we are not dealing with a very brave bunch.

David Johnston brings the latest bulletin in the NYT:
But some of the lawyers said Mr. Fitzgerald indicated that he had not yet made up his mind about whether to accuse anyone with wrongdoing and would use the coming weeks before the grand jury expires on Oct. 28 to decide the issue.

Mr. Fitzgerald's conversations with lawyers since late last week have left an ominous cloud hanging over the inquiry, sweeping away assurances from a number of officials and their lawyers that Mr. Fitzgerald was unlikely to find criminal wrongdoing.

In coming days, Mr. Fitzgerald is likely to request that several White House officials return to the grand jury to testify about their actions in the case - appearances that are believed to be decisive as the prosecutor proceeds toward a decision on whether to file charges.
Oh I bet Special Counsel Fitzgerald already knows he's going to charge someone with "wrongdoing" (that's some euphemism) -- it's just a matter of how many "wrongdoings" he's going to pile one on top of another.

And how many times do we get to hear that Rove has not received a target letter? The least they could do is include the coda -- which doesn't mean shit (although Reddhedd would like it known that at least this time David Johnston got the target letter stuff right).
"Karl's consistent position is that he will cooperate any time, any place," Mr. Gannon Luskin said.
Sorry. I couldn't help myself.

Meanwhile, over at the LA Times:
Grover Norquist, a conservative activist close to the White House, said Rove has been "on top of things as much as ever."
It was my impression Rove was a "bottom."
"He didn't seem worried," said the administration official, who spoke on the condition of anonymity because she would get fired if she was attached to stories about the case. "He seemed fine."
Well that narrows it down to anyone with boobs. I'm not too worried for her. Spreading the misinformation that Karl is "fine" (as if) is not exactly going out on a limb.
In addition, Rove has been active in courting evangelicals as the White House tries to line up support for the nomination of Bush's counsel, Harriet Miers, to be an associate justice of the Supreme Court.
The woman he's counting on to keep his whole machine out of jail? You don't say.
The last-minute testimony from Rove adds to a growing list of woes for the White House, and coincides with a period in which Rove has been much less visible. He is currently away on a family trip, Luskin said today.
But wait...I thought he was whipping the fundies...

Oh never mind.

(hat tip to Pontificator)

Update #1: Apologies to newbies who might not know who "Gannon" is. We do not mean to leave you out of the fun. You can catch up on the saga of the official White House man-whore here.

Update #2: The NYT article has been updated:
One new approach appears to involve the possible use of Chapter 37 of the federal espionage and censorship law, which makes it a crime for anyone who "willfully communicates, delivers, transfers or causes to be communicated" to someone "not entitled to receive it" classified information relating the national defense matters.

Under this broad statute, a government official or a private citizen who passed classified information to anyone else in or outside the government could potentially be charged with a felony, if they transferred the information to someone without a security clearance to receive it.
Reddhedd called it here this morning on Espionage.

We always strive to bring you the best :)


But Wait, There's More...

Reuters has now posted their one-up story on the AP, and it contains some very interesting stuff. For one thing, Rove's testimony may not come tomorrow it may be stretched to next week. The article states:

"Officials declined to disclose when Rove would appear, but the grand jury is expected to meet on Friday and again next week. Rove has appeared before the grand jury at least three previous times."

Legal sources are also telling the Reuters reporter, Adam Entous, that Judy Miller may also be called back to the hot seat. According to Reuters, "He (Fitzgerald) is evaluating her testimony...It could happen at some point." (This came from a legal source -- Abrams? Bennett? Tate?)

The Miller legal source is also back to specifying that Judy's testimony was specific to Libby. Quoting from the article:

"In exchange for Miller's testimony, Fitzgerald agreed to limit the scope of questioning to her conversations with Libby. If Miller is called back, the legal source said, "It would not be about Rove.""

This directly contradicts what Bob Bennett said on CNN when being interviewed by Wolf Blitzer the day of Judy's testimony. And it contradicts what Floyd Abrams said on MSNBC as well. Both said that Judy's testimony was limited to "the Plame affair," a far broader standard, and they used identical language in describing the limitations on Fitz' questioning parameters. Bob Bennett is an exceptional criminal attorney, and very precise in his language in interviews regarding client issues, and I would be very surprised if he were being less than honest on this -- he's good, but he's never struck me as particularly slimy. I'm beginning to wonder if Luskin isn't the legal source floating out what Judy did or did not agree to under cover of anonymity.

Sounds to me like the stories are not nearly matching up among the witnesses, which can be a problem if you make things up from whole cloth instead of telling the truth. No way of knowing if that is the issue, but discrepencies in testimony are a sure way to take a long, hard look at potential perjury and obstruction charges. Fitz still has the ability to extend the Special Grand Jury or to empanel a new one, but my gut tells me he's wrapping up the last bits as much as possible. Here's hoping he already has some sealed indictments in his pocket and that these are the last few moves on the chess board. Someone pour me a pinot grigio.

UPDATE: While we all wait, here's a truly amusing bit of humor. Major hat tip to Attaturk at Rising Hegemon on this -- it is a MUST read, for those of us glued to the news these days.


I'm on MSNBC tomorrow

I'm gonna be on MSNBC talking to Tony Maciulis tomorrow morning at 9:45 PT/12:45 ET about popcorn, frogmarching, and life as an LA blogger.

I'm so glad I had my hair done yesterday even if Johnny Wendell says I get fired from the revolution for being so bourgeois.


Sweet Mary Mother Of Bill O'Reilly, It's All Happening Now

Murray Waas:
Rove will appear voluntarily, but during tomorrow's session, Rove will be pressed about issues as to why his accounts to the FBI and grand jury have changed, or evolved, over time. He will also be questioned regarding contacts with other senior administration officials, such as then-deputy National Security advisor Stephen J. Hadley and I. Lewis Libby, the chief of staff to Vice President Dick Cheney in the critical week before the publication of columnist Robert Novak's column on July 14, 2003, which outed Plame as a covert CIA operative.
Lawrence O'Donnell:
What this means is Rove's lawyer, Bob Luskin, believes his client is defintely going to be indicted.

So, Luskin is sending Rove back into the grand jury to try to get around the prosecutor and sell his innocence directly to the grand jurors. Legal defense work doesn't get more desperate than this. The prosecutor is happy to let Rove go under oath again--without his lawyer in the room--and try to wiggle out of the case. The prosecutor has every right to expect that Rove's final under-oath grilling will either add a count or two to the indictment or force Rove to flip and testify against someone else.


Prediction: at least three high level Bush Administration personnel indicted and possibly one or more very high level unindicted co-conspirators.
Considering how high the presumed "high level" personnel sit in the White House pecking order, I can think of very few who would qualify for the honor of being "very high level unindicted co-conspirators." Only two, in fact.

(my emphasis throughout)
One "unindicted co-conspirator?" Dude. Not even in my wildest dreams did I imagine this.

Christmas in October for Jane.


Rove To Testify Again Tomorrow

He's baaaaaack. That's right, Uncle Karl has been given an opportunity to testify for a fourth time before the Special Grand Jury tomorrow, according to an AP wire report. No time has been given for expected testimony, but expect lots of lovely, harried shots of Karl and his attorney pals as they scramble in and out of the building.

According to the AP, the offer of testimony came from Rove, and was accepted by Fitz and Co., who have warned Bush's Brain that there is no guarantee that his testimony will not be used against him in an indictment. Well, duh. Unless Fitz were going to grant Rove use immunity for his testimony (which WOULD be news), of course they are making no guarantees.

The AP source(s) go on to say that no decisions have been made to indict anyone in the Traitorgate matter, either Rove or others involved.

Then the article goes off the reservation in terms of factual information and wades deep into source spin land. Look, I understand everyone is working on a deadline on these stories but, for heaven's sakes, call an attorney not involved in the matter and fact check the information you are given before you print it, would ya?

The article states that testimony of a potential indictee this late in the game with a grand jury is unusual, which is correct unless you have newly discovered evidence or information, or you have a defendant who has been presented with a target letter or other pending indictment notification who is now scrambling to save his own ass by talking his way out of the box.

The article then goes on to say that US Attorneys do not call witnesses who face possible criminal charges without first warning them that this is a possibility and that "[t]he prosecutor did not give Rove similar warnings before his earlier grand jury appearances." Well, that's just wrong. I mean, flat wrong.

Anyone who has spent any time reading the rambling musings of Luskin over the last few months knows that Rove was a "subject" earlier in the investigation. Luskin has said as much earlier in the summer -- in Newsweek, the WaPo, the LA Times, back in July, Luskin couldn't shut his mouth about a lot of "facts" in this case. He was the master of client spin. Suddenly, he has no comment? Wire reports from last night floated everywhere (hat tip to Reuters for some excellent work) and Luskin was on record as "no comment." A "subject" is given notification that he is strongly being considered for charges because his rights are attached along with a subejct notification letter to the top of the subpoena for testimony. That notification would be attached to each and every subpoena once Rove reached the "subject" status, so he knew that he had the right to remain silent.

What does all this say to me? It says someone got himself a target letter. Let's hope the Boy Wonder has a good excuse or two up his sleeve, because it sure looks like Judy may have added a nail to Karl's coffin last week. More as the story develops.

UPDATE: Looks like Luskin finally called Solomon back and gave a quote. There is an updated version of the AP story in the Washington Post. Luskin says "categorically" that Rove has not yet received a target letter, and also tells Solomon that Rove offered to testify again at the end of July, but that Fitz held him off until after the Miller testimony last week. Luskin also says that Fitz sent information to his office making clear that any testimony given by Rove may be used against him in a prosecution and that there are no guarantees that an indictment will not be forthcoming. Luskin used the conversation to get the information out that, according to him, Rove had not yet been formally targeted, and that any further communications between his office and Fitzgerald would be confidential.

Two things of interest in this revised version: (1) It repeats that Rove was not given notification of potential criminal jeopardy prior to his previous testimonial appearances. That does not square with other statements made by Luskin and anonymous sources close to Rove, etc., stating that he was earlier given "subject" notification. This is odd -- when were we hearing the truth on this? In early July? Or now?

(2) Rove contacted Fitzgerald about giving further testimony in July, presumably around the time all the leaks were flying from Luskin and others after everyone learned that Rove was Cooper's source. Fitz chose to wait until after Judy Miller testified before taking them up on the offer. Why? What did Fitz need from Judy -- that he presumably got -- that then made Rove's testimony useful in some way? Other than portraying Rove as being cooperative, what good does it do Luskin's client for all of us to know that Fitz found some presumed discrepency between Rove and Miller's testimonies?

Guess we'll all find out if we ever get to read indictment text. Until then, it will be the Karl show tomorrow.

UPDATE #2: New version of the AP article now has some great analysis from Stephen Gillers of NYU Law School. He calls this fourth trip to the jury and Fitz's required warning of rights as "an ominous sign" for Rove, and also says how unusual this is in terms of usual procedure. My favorite quote:

"It suggests Fitzgerald has learned new information that is tightening the noose," Gillers said. "It shows Fitzgerald now, perhaps after Miller's testimony, suspects Rove may be in some way implicated in the revelation of Plame's identity or that Fitzgerald is investigating various people for obstruction of justice, false statements or perjury. That is the menu of risk for Rove."
Anything on that menu sounds good to me. I'll take one of each. No, make that two.

UPDATE #3: Murray Waas has his take on things up here. VERY interesting stuff. Locks in some details as to what Rove's testimony might cover, including the discrepencies that emptywheel has speculated about between other testimony and Rove's, and why Rove's testimony has been evolving over time. Never good to have an ever-changing story.

Waas also reports that Rove is likely to be asked about the nexus of contacts he had during the critical weeks between the INR memo and Novak's column. This is some really good stuff.

"He will also be questioned regarding contacts with other senior administration officials, such as then-deputy National Security advisor Stephen J. Hadley and I. Lewis Libby, the chief of staff to Vice President Dick Cheney in the critical week before the publication of columnist Robert Novak's column on July 14, 2003..."

Excellent work from Waas, as always, and a great read. Should be interesting tomorrow to see if any more leaks start springing. (One note here, if Waas' source is someone in Fitz' office, himself will be very displeased. No prosecutor likes their cat being let out of the bag too early. I think Mr. Rove has many more surprises in store for him tomorrow.)


Round Up Time

Some great summaries by everyone trying to get their ducks in order in anticipation of indictments.

Ex-CIA agent Larry Johnson has one over at TPM Cafe. He makes the very valid and critical point which underscores the need for what we're all doing here:
Whether there is or is not an indictment, the Republican spin machine will be out in force spreading lies and it is critical that the citizens of this country have clear facts to judge the truth of the matter
And for the true fan, emptywheel has the most exhaustive spy vs. spy redux of the whole affair you are likely to read. Favorite moment:
There were, however, three events which might be related. First, on October 18 Karl Rove pulled a silly stunt on the campaign trail, laying down under the wheels of Air Force One. He had testified a few days earlier (October 15) in front of the Grand Jury. According to Murray Waas, Rove told the Grand Jury information that we now know to be false.


Then, in a move that largely stupefied observers, Karl Rove got a promotion to Deputy Chief of Staff in February. It wasn't clear why he was getting a promotion. As Dan Froomkin observed, the promotion doesn'’t earn Karl any extra money. It got him a new office, but Karl has always seemed like a man whose office says little about his stature anyway. I have wondered but so far have had no one answer my question —whether this move might provide Karl more Executive Privilege once he gets his indictments.

(my emphasis)
Okay everybody take a deep breath, sit back, pour yourself some herbal tea and take some time to brush up on your TraitorGate facts. You'll be able to impress everyone you know with your trenchant observations and deep insights when indictments come down.

We will try to provide a steady supply of witty asides you can feel free to use as your own.

Update: Just got off the phone with Spanish journalist Ernesto Ekaizer from Spain's leading newspaper El Pais. I guess there is a lot of interest in TraitorGate amongst Europeans who are also watching with bated breath. Welcome to our European readers, feel free to have a look around the place and make yourselves at home.


Harriet Miers Closeted...Feminist?!?

Well, here is a story guaranteed to give James Dobson a sleepless night or two. It seems that Harriet Miers, the Preznit's new nominee for the Supreme Court, may be a closeted feminist. Ms. Miers served on the Board of Southern Methodist University Law School in the late 1990s and helped to establish an endowment for a speaking series on women's issues there during her tenure. Harriet Miers not only advocated for establishing the lecture series, but she made personal donations and did quite a bit of fundraising to fully endow the effort.

The series was named for a pioneering female attorney in Texas -- Louise B. Raggio -- who helped to bring issues such as property rights for women and other fairness issues during divorce to the fore in terms of women's rights under Texas law.

The first lecturer in the series? Gloria Steinem, who spoke to the school in 1998. Yes, THAT Gloria Steinem -- founder of Ms. Magazine, long-time liberal, feminist icon, pilloried scourge of such intellectual luminaries as Phyllis Schlafly. (Ahem. cough cough I bet Phyillis will be absolutely livid to the top of her beehive hairdo after learning about this.) Other past speakers include Sen. Patricia Schroeder, Susan Faludi, and Ann Richards.

All I can say is good on ya, Harriet. I'm not ready to come close to to saying that Ms. Miers is a feminist in the mold of Gloria Steinem, but for some reason this gives me hope that, if confirmed, she might at least be open to ideas and arguments from all points of view. Intellectual curiosity is definitely a plus for a Supreme Court Justice, so if we are stuck with Ms. Miers, perhaps she will at least be willing to listen to all the sides of an argument.

Then again, maybe not -- guess we'll see at the confirmation hearings if anyone can get a better sense of where Harriet Miers' stands on anything beyond her thinking that George Bush is the "smartest man I know." Shudder. Someone get her out more.

Wonder how Dobson and company are going to feel about a nominee who worked hard to bring feminist ideology to the women of Texas?


Not Counting Yet, But Just in Case...

None of us have any idea what cards Patrick Fitzgerald might be holding at this moment. He has played a brilliant hand of poker up to now, keeping everything very close to the vest, with all the leaks seemingly coming from frustrated defense lawyers trying to salvage the reputations of their political clients. It does feel lately, however, like something is about to explode, what with all the correspondence leaks and the disappearance of Karl, and all. Maybe it's just my brain from all the caffeine and anxiety and praying for an indictment miracle, but there appears to be a hum in the air, a tiny sound of something trying to burst forth into the light of day.

With that in mind, an exploration of potential criminal charges is in order, so that if and when indictments are announced, we'll all be in the know on what evidence Fitz has and what sorts of prison terms the indictees will be facing. (Note that I used the plural -- a girl can dream, after all.)

To interpret any statute or law, all you have to do is look at the plain language in which it is written. Okay, I know that is a laughable sentence, considering lawyers and politicians write these laws, but that is what all the case law says -- go with the plain meaning of the words. Essentially, a law means what it says it means (unless you are given guidance elsewhere, such as in a court opinion or another law that tells you it means something else -- but that's a whole 'nother blog posting.)

Those of you who have been following the Traitorgate case as obsessively as I have will be aware that there are a number of charges that could be filed, depending on what evidence Fitz has and what he can actually make stick. What I want to do here is detail a few of the possibilities, just in case there is a big announcement soon, so we can all move forward on much the same page. (Cue the popping of champagne corks here. Oh no, wait. Not yet...darn it. I love champagne.)

A short word on how prosecutors come up with indictment charges. Prosecutors consider a lot of factors when looking at what to charge: the amount of physical evidence and how certain they are of its results; the amount of circumstantial evidence that will have to come in through witness testimony, how reliable those witnesses are likely to be at trial, and the veracity and history of the witness (Will she hold up on cross examination? Not that I have anyone in mind; the elements of the statute and how the evidence meets up with what he is required to prove; and a lot more.

There is a calculus that goes into these determinations, and a lot of it depends on the prosecutor. If you have a prosecutor who wants to maximize resources and minimize time wasting, you may see indictments with only rock solid charges that will result in a lot of plea deals, but will also let a number of criminals off the hook of indictment because of iffy cases. If you have a prosecutor who is a crime and punishment sort, and doesn't really care about the resources needed but is more gung ho about putting the skeezeballs in jail, you get a lot of indictments, some of which are more iffy, and a LOT of trials.

I was somewhere in the middle as a prosecutor, and I get the feeling that Fitz is as well: not happy with criminals, really unhappy with anyone who would wantonly jeopardize national security, but also conscious of conserving taxpayer dollars where he can. I look for fairly solid indictments from him and this jury, without a lot of fluff and nonsense, but a lot of heft to the evidence behind them when and if they go to trial. This is, of course, done in consultation with the members of the grand jury hearing the matter. Honestly, it is a lot like poker in a lot of ways, it is just that the stakes are so much higher.

So, enough background. On with the charges.

18 USC 793: Gathering, transmitting or losing defense information. This is part of what is more commonly known as the Espionage Act, and this statute has not been discussed widely enough in the media, frankly. The most relevent section is 793(d), which states that:

"Whoever, lawfully having possession of, access to...or being entrusted with...information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it....[s]hall be fined or imprisoned for up to ten years, or both." (emphasis mine)

What this means is that if a person were lawfully able to have access to classified information, as in someone at a high level of government who had signed a Standard Form 312 (SF 312) giving them high level clearance with all of the attached warnings against unauthorized disclosure, and that person spoke with an unauthorized person and revealed classified information, they are in deep doo doo. There is NO requirement here for a particular name to be named, or for the person disclosing the information to know exactly in what capacity a certain CIA agent may have worked. The requirement under this statute is that a person who had lawful access to information took that and used it for an improper purpose outside of what was allowable in their SF 312 agreement.

Note that the language is fairly encompassing in terms of what someone might try and do with the information: willfully communicates, causes to communicate or attempts to communicate. That's a fairly open door in terms of conduct precisely because this is just the sort of behavior that people in government have deemed to be reprehensible and deserving of substantial penalties. Section (g) of this statute also provides for an additional conspiracy charge and penalties applicable thereto -- so Fitz could get double the fun with a conspiracy charge on top of the above violation. There are also provisions for property forfeiture written into this section. (Hmmmm...wonder if that could include recently escrowed property in Maryland?)

18 USC 641: Conversion of public money, property or records. This is the statute to which John Dean referred in his FindLaw article, referencing the Jonathan Randal case. I am not as enamored with this as Dean is, simply because there would have to be some proof of document conversion. In my mind, that would have to come via Ari Fleischer, who reportedly spent time browsing through Colin Powell's briefing book on Air Force One on the way to Africa around the time that Joseph Wilson's op-ed appeared in the NYTimes. If Ari phoned his pals Rove and Libby (and Dan Bartlett and...well, the list could go on and on, couldn't it?), went over what he saw about Valerie Plame Wilson and her CIA status, and they in turn phoned reporters about it...well, that may be what happened, but I'm not certain that this statute allows for a solid prosecution under those circumstances. It certainly would require that Ari testify, having flipped entirely, and hopefully several other officials who might also be in the know on this. But this would be a bit tougher, even with the Randel case as a precedent in creative prosecution. That said, it is still a possibility.

18 USC 421: Intelligence Identities Protection Act (IIPA). This was the initial red herring floated by such partisan luminaries as Victoria Toensing, who long ago sold out her prosecutor's soul for a less valuable GOP coffee mug, and Bob Dole, who shills for Dr. Porkenheimer's these days. IIPA requires that a defendant have affirmative knowledge that they are disclosing the identity of a covert agent and that the defendant is knowingly doing so at the time of the disclosure. Prosecutions which require that you get into the mind of the defendant at the time of the commission of the crime can be very tricky to prove -- you have to do so through circumstantial evidence usually, because you can't just tap into someone's brain and see what they were thinking. But sometimes people brag to others who become witnesses for the State. Sometimes they leave a paper trail or some good fingerprints or something else. Sometimes they get recorded, on tape, even though they've asked to be interviewed off the record. Again, a girl can dream.

This is less likely, I think, just because of the hoops Fitz would have to go through, but then I have no idea how solid his evidence might be and who he has been able to flip in the inner circle. If he's been successful at that, all bets are off on prosecuting under IIPA. The penalties for this are fines, imprisonment up to ten years, or both, and the great kicker is that should anyone be found guilty of this particular section, any sentence given under IIPA has to run consecutive to any other time -- meaning if you have a defendant convicted of this and also of conspiracy, the potential ten year sentences would run back to back for a total of 20 years.

18 USC 1001: False Statements or Documents Given to FBI. This section covers alteration of documents or records (including purging e-mails and such) and false statements to investigators (in this case the FBI). Violation of this statute carries a fine and up to five years of jail time or both.

18 USC 1621: Perjury. Perjury is lying to a jury or other tribunal while under oath. It carries a maximum penalty of five years in prison, or a fine or both. It also carries a kicker -- a perjury charge follows you in every other instance of testimony you may ever give: an attorney may cross-examine you on your official status as a liar in any matter before any court for the rest of your life. This may also be applied to material that has been attested to, such as documents, letters, etc.

18 USC 371: Conspiracy. This covers a situation where two or more persons get together and decide to either commit a crime together or somehow defraud the government (say by lying to investigators because they have concocted a crazy cover story that relies on journalists not to talk to the FBI). If a conspiracy is proved, it carries a maximum of five years, or a fine, or both, as its penalty.

18 USC 1924: Unauthorized removal and retention of classified documents or material. This is a beauty of a little statute that allows for charging someone for removing classified materials, for which they lacked proper clearance or authorization, and yet the penalty is low enough that it is perfect for dangling out as a potential plea bargain in lieu of a higher criminal penalty. This sort of carrot can be very useful in persuading a lower level actor to flip. This section covers moving classified documents to an unauthorized location (perhaps Ari Fleischer's seat on AF1 from Colin Powell's room). It carries a penalty of up to one year, or a fine, or both.

In addition to all of the above, Executive Order 12958 requires that the White House take remedial action against any person suspected of violating the terms of his SF 312 agreement for clearance. This is to be done above and beyond whatever criminal matters may be pending in the case. To my knowledge, this has not been done by this White House (oooh, surprise, surprise), and the few inquiries made by the press on this issue have been met with Scotty's now famous, "I can't comment on something dealing with an ongoing investigation unless you asked me a couple of months ago when we looked less guilty." As far as I know, Rove, Libby and company still have their security clearances, even though normal people have them yanked for much, much less.

There are several other possibilities, but these are the ones that I've identified as fairly likely to be in play in this prosecution. Not having been a US Attorney, however, I am certain that there are a lot more statutes that Fitzgerald may be considering. In any case, this is only a small slice of what Fitz is thinking about as the indictments draw closer, if indeed there are any at all. My money is on multiple indictments, but I'm trying not to count my chickens just yet.

UPDATE: In the light of morning (and after half a pot of coffee), it occurs to me that it would be really helpful to do an illustration of how an indictment might be charged. Hypothetically speaking, of course, since I have absolutely no way of knowing what evidence Fitz actually has. (Oh, to be a fly on the wall in his offices...the suspense is killing me!) Here's one possible scenario for a Scooter Libby indictment:

18 USC 793(d): fine, 10 years, or both, for each individual count (so 4 to 5 counts)

-- 1 count for disclosure/confirmation to Judy Miller at the NY Times

-- 1 count for disclosure/confirmation to Matt Cooper at Time

-- 1 count for disclosure/confirmation to Walter Pincus and/or Glenn Kessler at WaPo

-- 1 count for disclosure/confirmation to Tim Russert at NBC/Meet the Press

18 USC 793 (g): fine, 10 years, or both

-- 1 count conspiracy to disclose identity of Valeria Plame Wilson to press (whether or not they knew she was a NOC -- disclosing classified information period is a crime under this section, I think)

18 USC 1001: fine, 5 years, or both

-- 1 count of making false statements to investigators (in this case, the FBI)

18 USC 1621: fine, 5 years, or both

-- 1 count of perjury to the grand jury (this could be multiple counts depending on how many times false statements are made, but I'm being generous here)

18 USC 371: fine, 5 years, or both

-- 1 count conspiracy to make false statements to investigators (obstructing the investigation)

So that would be a grand total of 8 or 9 counts for a single indictment of a single actor in this mess. See how fun being a prosecutor can be? Well, not fun so much as truly rewarding to know that you are helping bring to justice the sort of scumbag who would endanger national security for political payback. Here's hoping we hear something soon -- anticipaaa-aaaa-tion...


Wednesday, October 05, 2005

I Think I'm Getting Religion

The federal prosecutor investigating who leaked the identity of a CIA operative is expected to signal within days whether he intends to bring indictments in the case, legal sources close to the investigation said on Wednesday.

As a first step, prosecutor Patrick Fitzgerald was expected to notify officials by letter if they have become targets, said the lawyers, who spoke on condition of anonymity because of the sensitivity of the matter.

Fitzgerald could announce plea agreements, bring indictments, or conclude that no crime was committed. By the end of this month he is expected to wrap up his nearly two-year-old investigation into who leaked CIA operative Valerie Plame's identity.

The inquiry has ensnared President George W. Bush's top political adviser, Karl Rove, and Vice President Dick Cheney's chief of staff, Lewis "Scooter" Libby. The White House had long maintained that Rove and Libby had nothing to do with the leak but reporters have since named them as sources.

Rove's attorney, Robert Luskin, declined to say whether his client had been contacted by Fitzgerald. In the past, Luskin has said that Rove was assured that he was not a target.

Libby's lawyer was not immediately available to comment.
My favorite version of the song Oh Happy Day was recorded by the Edwin Hawkins Singers in 1969. There is also a version by Bebe and Cece Winans that I am partial to, and Aretha Franklin has a terrific version, but the Hawkins rendition is quite special.

I just downloaded several versions of Oh Happy Day off I-Tunes to have on hand Just In Case.



Be Afraid, Karl -- Be Very Afraid

"Listen. Understand. That Terminator is out there. It can't be reasoned with, it can't be bargained with. It doesn't feel pity or remorse or fear. And it absolutely will not stop. Ever. Until you are dead."

I just talked to a source who told me that Karl Rove has been missing from a number of recent White House presidential events - events that he has ALWAYS attended in the past. For example, Rove was absent from yesterday's presidential press conference to promote Harriet Miers. These are the kind of events Rove ALWAYS attends, I'm told, yet of late he's been MIA each and every time.

My source tells me that the scuttlebutt around town is that the White House knows something bad is coming, in terms of Karl getting indicted, and they're already trying to distance him from the president.

Oh, God, you've been so good to us lately. Please give us this one more.
Forgive me, John, for printing the whole thing -- it's just too good.

Add to this the weird happening Reddhedd reported yesterday, where Bush announced Meir's nomination without telling Cheney -- and then sent people out to tell Chris Matthews about it. Can't say for sure how this all adds up, or how it will all play out, but one thing's certain:

These fuckers are freaked.

(hat tip to emptywheel)


Inner Workings of a Grand Jury

'Tis the season to be indicted, it seems, especially if you are Tom Delay or one of his cronies. Or at least to appear before a Grand Jury pondering indictments. One of the questions I get most frequently is "How does a grand jury actually work, anyway?" Since grand juries work in secret, and only the jurors themselves, the prosecutor, and the witnesses ever get any insight into how things are going, I thought this season of legal speculation might be the perfect time to pass on a few facts and tidbits about grand juries gleaned from my prosecutorial experience.

Granted, I was a state-level prosecutor, so my experience with Federal Grand Juries is limited to my representation of people indicted by them when I was in private practice, but I've worked with the US Attorney's Office and federal investigators in my local area on joint prosecutions and understand the broader range of power and scope of the Federal system and the increased power of prosecution therein.

What is a Grand jury anyway?
A grand jury is composed of citizens who hear evidence of an alleged crime and decide whether or not charging someone is warranted under the given facts and applicable laws. In the Federal system, a grand jury is comprised of 16 to 23 members. In the state systems, the number of jurors required varies according to state law. The grand jury can consider evidence regarding defendants who have already been arrested (such as someone caught for a DUI) or against someone suspected of committing a crime but not yet under arrest (such as a drug cartel where you would not want to tip off the entire operation by arresting any individuals involved until the entire operation had been indicted to be arrested at once).

The Fifth Amendment of the Constitution requires that any charge that rises to the capital level (as in a felony) be charged through a grand jury at the federal level. This is a process that dates back to the Magna Carta, and a good summary of the history of grand jury process can be found
here. State requirements, as always, are governed by State law.

Who is in the room during the grand jury and how does it work?
The constants in the room are the prosecuting attorney, the members of the grand jury, and the court reporter who transcribes the testimony, questions and interaction between witnesses and the jury. There is no judge, no criminal defense attorney nor any defendant in the room -- although a "subject" (someone at whom the prosecutor is looking very closely) can be subpoenaed to testify.

A regular grand jury begins with the prosecutor giving a short summary of the proposed charges for the alleged defendant. Then, various witnesses are called to testify or to present evidence in the form of documents, video, scientific testing and other means. For example, you might have the police detective come in and testify and show a tape of the defendant caught holding a television while standing half in and half out of the broken window of the store. (Those are always fun and fairly easy indictments as a prosecutor.)

Once the witnesses conclude their testimony, the prosecutor presents a "true bill" or "indictment" to the grand jury, basically a typed statement of the law and its application to the particular defendant(s) and then leaves the room. The jurors then review the document and either vote for or against the charges in it -- or ask for additional charges to be added or deleted as they see fit, in some cases. In the federal system, a simple majority is all that is needed to vote an indictment; this may vary by state. The grand jury foreperson and the prosecutor then sign off on the indictments, and the cops go out and arrest the defendant and pull him or her in for an arraignment, unless arrangements have been made with the prosecutor for that defendant to turn himself in at a later time.

How is Fitzgerald's Special Grand Jury different from this?
In the Federal system, a special grand jury was begun in the 1970s as a means to deal with the problem of organized crime. The cases that were brought against the web of criminal enterprises that the mob had were so vast -- and so overwhelmed the operation of a regular grand jury -- that the special investigative grand jury was developed so that prosecutors and investigators would have a more flexible partner in bringing these criminals to justice. The jury serves as an additional investigative unit, in a sense, by bringing in witnesses who are under subpoena, placed under oath, and then subject to criminal perjury charges if found lying to the jury. This can be used as a means to pressure their testimony further against any and all co-conspirators if perjury can be proved. (Sound familiar?)

The Special Grand Jury works hand in hand with the prosecutor and the FBI or other governmental agents to investigate the whole of the case. That means all of the many tentacles that may be involved in any given large criminal enterprise or, say, an average White House Iraq Group meeting. Here's a
direct quote from the ABA's website that sheds a little light on how much fear a federal grand jury can instill, even in lawyers:

"There are many occasions where a person who was issued a subpoena to appear as a witness or to produce documentation ends up becoming a "target" or "subject" of an investigation, then indicted by the same grand jury the person thought he or she was simply assisting."

Kind of puts all the spin on whether or not someone is a "target" going in to their testimony in perspective, doesn't it?

Can the prosecutor really indict a ham sandwich?
The short answer to this question is "not likely," but it depends on several factors. Most grand jurors take their jobs very seriously. Having had to sit in judgment of my fellow citizens as a prosecutor, I can tell you that it is a solemn job once you realize the gravity of what you are doing. You place people's freedom in jeopardy, potentially sending someone away for their lifetime to jail. You hold the safety of the community in your hands if you allow a dangerous and guilty person to go free. Grand juries generally meet in a courtroom setting or in a deliberation room off the main courtroom area, and are opened daily by the presiding judge reading an oath to them on their duty as jurors (at least that is how it was done in my jurisdiction, and you could see the jurors straighten up and accept the mantle of responsibility during the course of the reading by our local Judges).

Prosecutors have a quasi-judicial role, in that they operate as attorneys for the State or Federal government, but they also must make decisions daily on whether or not a particular defendant ought to be charged at all and, if so, how hard the hammer should fall. It can be a very difficult thing, frankly, to know that your decision may break up a family by placing the father in jail for a lengthy prison term, depriving the rest of the family of a source of income (however illicit that money might be in some cases), and knowing that the children will have to live with the knowledge that dad (or mom or grandpa or whomever) is a criminal. But the victim's rights and the community's safety have to weigh in very heavily in these decisions -- and ought to do so -- and you eventually settle on what you think is just and appropriate under the full weight of what has been done by each individual. (This same set of considerations is what the grand jury must weigh as well.) There are some prosecutors, obviously, who are bad actors -- who bring charges under vengeful circumstances or for political reasons, just like White House aides might abuse their power, say, for political payback -- but in my experience as a prosecutor and as a criminal defense attorney, those are fairly rare circumstances over all.

All this to say that an easily led grand jury is rare in my experience -- there have been a number of occasions where indictments that were brought (ones that we felt might be weak at the outset and were argued over by all of us on the staff) were sent back as a "no true bill" or a non-indictment by the grand jury. Sure, a prosecutor speaks with a lot of authority and influence in front of a jury, and has most of the power in terms of calling witnesses and presenting evidence. But the portrayal of the grand jury as weak-minded and told what to do truly does not square with the outspoken frankness of most grand jury members I dealt with in my community.

Let me tell you, grandmotherly types are often the ones who have the most to say, and who don't put up with any weaseling from witnesses. (Are you listening, Karl?) Jurors do not leave their common sense at the door, and most can sense a liar or someone who is trying to hedge pretty easily. You would be amazed at how illuminating the pressure of the witness chair can be, and jurors really have nothing else to do but sit, listen and watch your every tick -- liars stick out, and jurors can see that. Saying the prosecutor can do whatever he or she wants with a grand jury is immensely disrespectful to the members of the jury, and not something that I have found to be true in my personal experience.

How long is the term of a Grand Jury?
Generally, a grand jury is empaneled federally for 18 months. A Special Grand Jury may go for 36 months if extensions are fully used to complete investigations. State terms vary.

How do defendants find out they have been indicted?
Sometimes their attorneys will find out from the prosecutor's office directly, especially if they have some idea that there is a possible indictment upcoming, that the grand jury is meeting, and they call your office a lot. In my area, the names get published in the local newspaper -- what a way to wake up, eh? Sometimes they find out by being frogmarched in handcuffs out of their place of business. Ahem.

Update: Great summary of the difference between target letter and indictment notification on TalkLeft at this location. As always, excellent information.

Next up: Potential Charges in Traitorgate