Smoking Guns and Red Herrings

By Elizabeth de la Vega, Tomdispatch.com. Posted October 28, 2005.

The Grand Jury supervised by U.S. Attorney Patrick Fitzgerald has returned an indictment charging Vice President Dick Cheney's top aide and reputed "alter-ego" I. Lewis "Scooter" Libby with perjury, obstruction of justice, and false statements to the grand jury. But this indictment does not end the story; rather, a close reading suggests that these charges are most likely merely a chapter in a long and tragic story. Here, from a former federal prosecutor, are thoughts about four things we should expect, four things we shouldn't, and one question we should all be asking.

We should not expect a final resolution any time soon. Complex cases usually take years to proceed through the courts. In addition, the indictment released today describes a chronology of close to two years and a complicated set of facts. Obviously, Fitzgerald is taking a "big picture" approach to this case. This mirrors his approach to previous cases. In December 2003, for example, Fitzgerald announced the indictment of former Illinois Governor George Ryan on corruption charges in Operation Safe Road, which began in 1998. In that year, the investigation of a fatal accident revealed that truckers were purchasing commercial licenses from state officials. Indictments were announced in stages, culminating in the indictment of Ryan, who was the 66th defendant in the case. In the Libby case, the allegations suggest he was merely one of many officials -- including an unnamed Under Secretary of State and "Official A," a Senior White House Official -- who were involved in revealing classified information about Joseph Wilson's wife Valerie Plame. No other individuals are named as defendants, and they should not be considered so at this point, but the complexity of the indictment suggests that the investigation may follow a pattern similar to that used by Fitzgerald in the Illinois corruption case.

We should not expect to hear much more from Fitzgerald. The Special Counsel has been widely admired, and sometimes criticized, for his "tight-lipped" approach and "leak-free" grand jury investigation. But that, folks, is how it's supposed to be. Federal prosecutors are required to maintain grand jury secrecy. If they don't do that, they not only jeopardize their investigations, they could lose their jobs and/or be charged with a crime. The public has come to expect leaks from grand jury investigations because Independent Counsel Kenneth Starr, who was not a federal prosecutor, ignored secrecy rules during the investigation of President Clinton (and got away with it). Even after indictment, Department of Justice (DOJ) press guidelines permit release of only limited facts about the defendant, the charges against him, and court documents or testimony that may become public during the prosecution. Don't hold your breath waiting for Fitzgerald to explain evidence not alleged in the indictment; nor will he appear on talk shows to debate defense representatives.

We should not expect a smoking gun. Even when there actually is a gun, there's hardly ever a smoking gun. In the case against Libby, as in most white-collar crime cases, the evidence is likely to consist mainly of documents, thousands of them. And considering that the weapon employed in this crime appears to be a telephone, the closest thing to a smoking gun may well be telephone records.

We should not expect the President to take steps to "get to the bottom of this." He professed that desire in October 2003, but belied it in the next breath, saying he "had no idea who the leaker was and didn't know if we'd ever find out. "There's a lot of senior officials [out there]," he commented. "You tell me," he asked a group of reporters, "how many sources have you had that's leaked information, that you've exposed, or had been exposed? Probably none." Of course, assuming Bush didn't already know who the leakers were, all he had to do was make darned sure his aides told him. After all, organizations routinely conduct internal probes in parallel with criminal investigations. Indeed, the U.S. Sentencing Guidelines consider such inquiries to strongly indicate corporate acceptance of responsibility. But accepting responsibility for the CIA leak would have put quite a damper on the Bush reelection campaign. So, with his usual Janus-like approach to every threat, the President managed to declare himself above such petty politics while allowing surrogates to spread disinformation. In other words, the administration has attempted to derail the prosecution in precisely the same way it tried to derail ex-ambassador Joseph Wilson's credibility in the first place.

We should expect red herrings from the defense (even if not smoking guns from the prosecution). Fox hunters once tossed smoked red herrings out to test whether their dogs could stay on the right trail. Now, of course, the term means a distraction from the real issue; and if the Republican Talking Points rolled out thus far are any indication, we are going to be tripping over red herrings galore in the upcoming months.

Elizabeth de la Vega has recently retired after serving more than 20 years as a federal prosecutor in Minneapolis and San Jose. During her tenure, she was a member of the Organized Crime Strike Force and Chief of the San Jose Branch of the U.S. Attorney's Office for the Northern District of California.

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