Friday, November 04, 2005

Fitzgerald - it will probably get a lot better

I've seen many blog articles bemoaning that Fitz isn't going to touch the really important issues behind Plamegate like the lies that led us into an illegal war and whether those lies were the result of incompetence and overenthusiasm or pure malice. I think those articles are wrong.

I can see why those articles say what they do. Most of it comes from interpretations of Fritz's answers to questions at the Press Conference. But Fritz is very cagey and doesn't give anything away. Legally he cannot reveal Grand Jury proceedings nor indicate which individuals may yet be indicted. But Fitz is even cagier than he need because he knows that way people who testify don't know what other cards he's holding and can drop themselves in deep shit on perjury charges (Hi, Scooter).

So now to read between the lines of the press conference. The most revealing bits come in the Q&A session where Fitz had to think on his feet.

I can tell you, the substantial bulk of the work in this investigation is concluded.

That doesn't mean it's all over. It means he's got the bulk of the testimony and physical evidence he wanted, and it took him two years to get it. But all it takes is for Libby to beg for a deal and hand over some additional evidence to give Fitz a winning hand. Not much extra work involved, but a big payoff. So that could mean Fitz has done everything he wants and there won't be any more indictments or it could mean that Fitz is still pressuring people to flip (or flip some more).

The people who think Fitz is not going to dig into the lies behind the war probably get that idea from this question and answer. Note that the emphasis appearing in Fitzgerald's comments has been added by me to bring out salient points.

QUESTION: A lot of Americans, people who are opposed to the war, critics of the administration, have looked to your investigation with hope in some ways and might see this indictment as a vindication of their argument that the administration took the country to war on false premises.

Does this indictment do that?

FITZGERALD: This indictment is not about the war. This indictment's not about the propriety of the war. And people who believe fervently in the war effort, people who oppose it, people who have mixed feelings about it should not look to this indictment for any resolution of how they feel or any vindication of how they feel.

This is simply an indictment that says, in a national security investigation about the compromise of a CIA officer's identity that may have taken place in the context of a very heated debate over the war, whether some person -- a person, Mr. Libby -- lied or not.

The indictment will not seek to prove that the war was justified or unjustified. This is stripped of that debate, and this is focused on a narrow transaction.

And I think anyone's who's concerned about the war and has feelings for or against shouldn't look to this criminal process for any answers or resolution of that.

The first two paragraph's of Fitz's response make it clear that he is talking about this indictment of Irvin Lewis "Scooter" Libby and of no other indictments. The Grand Jury can issue a superceding indictment of Libby that contains additional charges. The Grand Jury can issue indictments of other individuals that contain charges of other crimes that do not appear on this indictment of Libby.

The third paragraph starts "the indictment" rather than "this indictment, but in the context of the preceeding two paragraphs and the rest of the third paragraph, it's clear Fitz is still referring to this indictment of Libby, not a superceding indictment of Libby nor of indictments against other individuals.

The fourth paragraph refers to "this criminal process," and I suspect many interpreted that to mean the Grand Jury investigation. But "criminal proceedings" refer to a trial. There can be no trial until an indictment has been made. As Fitz stated several times in several ways, the reason for Grand Jury secrecy is to prevent harm to the reputations of individuals who were under investigation but found not to have done anything wrong (or might have done something wrong but the case wasn't strong enough). Those who have not been indicted are not criminals. Therefore when Fitz says "criminal process" he means the trial against Libby, and Libby alone, and based upon this indictment rather than a superceding indictment (should there be one).

Another answer by Fitzgerald shows clearly that all you can conclude from Libby's indictment is that so far Libby is the only one to have been indicted:

I'm not making allegations about anyone not charged in the indictment.

Now, let me back up, because I know what that sounds like to people if they're sitting at home.

We don't talk about people that are not charged with a crime in the indictment.

I would say that about anyone in this room who has nothing to do with the offenses.

We make no allegation that the vice president committed any criminal act. We make no allegation that any other people who provided or discussed with Mr. Libby committed any criminal act.

But as to any person you asked me a question about other than Mr. Libby, I'm not going to comment on anything.

Please don't take that as any indication that someone has done something wrong. That's a standard practice. If you followed me in Chicago, I say that a thousand times a year. And we just don't comment on people because we could start telling, "Well, this person did nothing wrong, this person did nothing wrong," and then if we stop commenting, then you'll start jumping to conclusions. So please take no more.

The reason Fitz won't comment about anyone other than Libby is that if he said Bush had done nothing wrong but refused to comment about Cheney then you'd know Cheney was a target and Cheney's reputation would suffer if no indictment was brought (God knows how Cheney's reputation could be any worse, but that's the law). But if Fitz had already concluded that no further indictments were possible, he would be able to say so: "The only person we will be indicting is Libby and the only charges we'll be bringing are those on this indictment. We've gone as far as possible." The reason Fitz cannot exclude Cheney is because he cannot say he's brought all the indictments he wants to.

Am I parsing that too hard? Nope. The Libby indictment identifies several people (but by official title such as "Vice President" rather than by name) where the evidence of those people's interactions with Libby is probably not indictable. But in one instance, an individual's interaction with Libby may amount to conspiracy, so that individual may yet be indicted on the basis of material that appears in Libby's indictment. That official is referred to as "White House Official A" (and is almost certainly Karl Rove). The material in Libby's indictment referring to Cheney won't be used in an indictment against Cheney, the material referring to Official A may be. But there may be other material, which does not appear on Libby's indictment, that may form the basis of indictments against others (such as Cheney and Bush).

So my take is that Fitz in no way excluded the possibility of digging into the lies behind the war. If that happens, and Fitz can prove the lies were deliberate, that opens up the possibility of war crimes charges! You're probably thinking that I'm basing all this upon an overly-careful parsing of the above question and answer. But there was more in the press conference to justify that interpretation.

Another answer from Fitzgerald:

And as you sit back, you want to learn: Why was this information going out? Why were people taking this information about Valerie Wilson and giving it to reporters? Why did Mr. Libby say what he did? Why did he tell Judith Miller three times? Why did he tell the press secretary on Monday? Why did he tell Mr. Cooper? And was this something where he intended to cause whatever damage was caused?

Or did they intend to do something else and where are the shades of gray?

And what we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He's trying to figure what happened and somebody blocked their view.

As you sit here now, if you're asking me what his motives were, I can't tell you; we haven't charged it.

Fitzgerald needs to know deeper motives before he can bring charges for leaking. Some of the (arcane) statues against leaking require very specific circumstances to be met. Most of them require mens rea (intent) and that is impossible to prove unless you can prove what the motive was, because it could have been unintentional or accidental or negligent rather than deliberate. But that last paragraph gives it away. Fitz isn't saying he doesn't know the motives but that he cannot (yet) prove them and bring additional charges.

How do I know that Fitz would actually try to dig as deep as it goes and not stop once he had enough charges to put people away for many years? His behaviour in other cases. He brings every charge he can against every individual possible and he goes as far to the top of the tree as he can. Again, from the press conference:

Agent Eckenrode doesn't send people out when $1 million is missing from a bank and tell them, "Just come back if you find wire fraud." If the agent finds embezzlement, they follow through on that.

What Fitz didn't say, but is evident from his past behaviour, that if the agent finds both wire fraud and embezzlement they follow through on both. They go after anything they find.

Here's another part of the Q&A that may have misled people into thinking Fitz won't go after anything and everything:

QUESTION: Have you sought any expansion of your authority since February of 2004?


I do know there was a letter, and I haven't looked back. There was a clarified letter...


FITZGERALD: Yes. I think there were two letters in early 2004, and that's it. There's nothing changed since then.

QUESTION: (OFF-MIKE) further issues that you want to look into or anything like that?

FITZGERALD: I'm not looking to expand my authority or mandate and haven't -- I think the second letter is a clarification of the first. Nothing has changed since February 2004 at all.

Note that exchange very carefully. The first question was if Fitz had sought an expansion of his authority, and the answer was that he had not. The second question was if Fitz wanted to look into further issues, which Fitz side-stepped by saying he wasn't looking to expand his authority. Of course he wasn't looking to expand his authority because he already had the authority he needed to investigate any violations of Federal criminal laws related to the "alleged unauthorized disclosure" (see this memo).

As I already stated, in order to prove intent to leak Plame's name Fitz needs to look into the lies that led to the war in order to prove motive. And if that investigation uncovers further crimes (like treason or even war crimes) then Fitz already has all the authority he needs to bring indictments (if he can) for those crimes.

Another answer from Fitzgerald:

That's the way this investigation was conducted. It was known that a CIA officer's identity was blown, it was known that there was a leak. We needed to figure out how that happened, who did it, why, whether a crime was committed, whether we could prove it, whether we should prove it.

And given that national security was at stake, it was especially important that we find out accurate facts.

Today I came across an article (no link because I think it's a disinformation exercise) that claims Fitz is actually a shill who was brought in to make it seem like there was a thorough investigation and then to indict Libby as a scapegoat, but to hold off the indictment until after the election. Two questions: why indict Libby (known as "Cheney's Cheney" because he was effectively Vice Vice President) rather than somebody lower down? Why does "White House Official A" appear on Libby's indictment?

I think, given all the above, Fitz is doing an honest job. And he's not going to stop until he's indicted everyone that he can indict on every charge that he can. And that could mean some very serious shit going right the way to the top.


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