Elizabeth de la Vega

How to Make the White House Come Clean About Plame Conspiracy

Last week, apparently belatedly realizing the obvious -- that the attack on former Ambassador Joseph Wilson and his wife Valerie Plame was a White House family affair -- New York Times columnist Nicholas Kristof called for the administration to come clean. Bush and Cheney owe "the American people a candid explanation" of their conduct with regard to the leaking of Plame's identity as a CIA agent, Kristof insisted.

If, after observing this administration for over six years, Nicholas Kristof thinks that the president and vice president are going to suddenly be overcome by conscience and tell all because he has put his foot down, then Nicholas Kristof is downright adorable.

The trial of I. Lewis "Scooter" Libby was merely a snapshot view of this administration in daily action; but incomplete as it was, it nevertheless starkly revealed what many had known all along: that the most powerful officials in the United States government -- including, but not limited to, the vice president, the vice president's chief of staff, the deputy secretary of state, the president's press secretary, the president's chief of staff, and, yes, the president himself -- had responded to the barrage of criticism being aimed at their fictitious case for war in the spring and summer of 2003 by focusing their sights on a man and woman who had devoted their lives to public service.

Such people -- those who will use the highest offices of the United States government to protect themselves and their prospects for reelection by whatever means they deem necessary, regardless of the damage they leave in their wake -- are not going to confess to anything ... ever.

Indeed, in answer to questions from a reporter about this very issue on Feb. 14, President Bush explained helpfully, "I'm not going to talk about any of it." We will surely all expire if we hold our collective breath waiting for the president to change his mind about this (or anything else, for that matter). Fortunately, we do not need to hear what Bush and Cheney have to say about "it" right now.

Nor do we have to wait for the outcome of any further investigation by Special Counsel Patrick Fitzgerald, even though it is entirely possible he and his eminently capable prosecutors Peter Zeidenberg, Debra Bonamici and the rest of their team will continue to explore possible criminal activity on the part of Vice President Cheney and others. A continued investigation would, in fact, be both appropriate and warranted, given the abundant evidence of Cheney's wrongdoing.

As Fitzgerald implied on the day he announced the charges against Scooter Libby, however, the criminal justice system is not designed to address all the issues raised by the CIA leak affair, perhaps not even the major ones.

The Libby case was not, Fitzgerald said, as he announced the indictment, about the validity or honesty of the president's arguments for an invasion of Iraq. In fact, the Libby case was not even about the conduct of other members of the administration; it was solely about I. Lewis "Scooter" Libby and whether he obstructed a grand jury investigation, lied to federal agents, and then lied to a grand jury.

Despite the spin immediately set in motion by Libby's cadre of supporters, Fitzgerald was not suggesting that the charges he was leveling were trivial, nor was he presuming to sanction the conduct of the Bush administration in the runup to the war. As a seasoned prosecutor, he was merely making a simple, but necessary, point about the nature of criminal charges and the laws that govern them.

The laws of perjury and obstruction of justice exist to vindicate an important government interest in the integrity of grand-jury proceedings. Once such charges are brought, however, they raise but a single issue: Is there proof beyond a reasonable doubt that the individual or individuals charged committed the conduct specified in the indictment?

From the perspective of the prosecution team, that question was, quite properly, the only one raised by the criminal trial of Scooter Libby. And within the confines of U.S. District Court Judge Reggie Walton's courtroom, the prosecutors were only entitled to offer evidence relating to that question. That is why the Libby trial has offered such an incomplete and unsatisfying picture.

Evidence in the trial showed, for example, that, on May 29, 2003, Libby first asked former Undersecretary of Defense Marc Grossman for information about an unnamed former ambassador's trip to Niger to inquire about possible Iraqi purchases of uranium. Evidence was also presented that such a trip had been mentioned in a May 6, 2003, op-ed written by Nicholas Kristof.

But because the prosecution was limited to introducing evidence that tended to prove the charges in the indictment, the evidence did not indicate what else were reporters saying about the administration's case for war in the spring of 2003. From the Bush administration's perspective, it would be the height of understatement to say that there was not a whole lot of positive press.

For starters, by at least mid-May, the Democrats, with Jay Rockefeller leading the charge, were calling for an investigation into the intelligence cited repeatedly by senior administration officials as grounds for the invasion of Iraq. And here is a sampling of the accompanying media furor:

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One Soldier Against the Empire

I look forward to the day when Mattel makes a Sgt. Ricky Clousing action figure.

As the mother of sons born eight years apart, I spent nearly half my adult life surrounded by -- and stepping on -- action figures. They were everywhere: a phalanx of tiny knights in shining armor on the windowsill; Batman and Robin frozen in an ice tray; and GI Joe guys in camouflage among the hosta. One Christmas, Luke Skywalker and Han Solo even ended up in the manger scene along with Jesus, Mary, and Joseph, two cows, three sheep, and several Ewoks. My kids spent hours and hours in a fantasy world populated by villains and heroes of every description except one; there were no peace heroes.

I met a peace hero at Camp Democracy in Washington, D.C. not too long ago: Sgt. Ricky Clousing. He will not remember me, but I will not forget him. On a brilliant, blessedly unhumid day, Ricky sat on a makeshift platform within shouting distance of the Lincoln Memorial and told a story that was simultaneously agonizing and inspiring to hear.

On September 11, 2001, Ricky was working in an orphanage and "building some roads and stuff" in Thailand. When his stint as a volunteer ended, he made his way to Germany where he met American soldiers returning from Afghanistan. Caught up in the wave of post-9/11 patriotism, he decided he would join the Army rather than return to college in his native Seattle. That way he could serve his country and have money for his education when he got out. Two years later, having completed basic training and intensive language instruction at the Monterey Defense Language Institute, Sgt. Ricky Clousing found himself in Baghdad, an interrogator with the 82nd Airborne Division out of Ft. Bragg, North Carolina.

As a tactical interrogator assigned to question detainees at the scene of infantry raids, Ricky did not witness the abuse of prisoners at Abu Ghraib. What he did witness, however, was hardly less horrifying: American soldiers indoctrinated to view Iraqis as less than human, as "ragheads" or worse; American soldiers out on the streets of the Iraqi capital ramming the cars of Iraqi civilians for sport; American soldiers laughing as they slaughtered the livestock of local farmers; and American soldiers shooting an Iraqi teenager who had simply made a wrong turn.

Ricky was on patrol when he saw a boy, "probably 18 years old, a small maybe high-school age kid" turn down a road his unit was attempting to secure. The teenager, Ricky said, was quite visibly terrified at the sight of "a whole bunch of Americans with big weapons" staring him in the face. He started turning the car around, but didn't get very far. This is how Ricky described what happened next:

"One of the soldiers in the turret of the humvee behind me just opened up fire on the machine gun on the vehicle. As the vehicle was turning away, all I heard above my head was "pop, pop, pop, pop." This was my first deployment, my first combat experience was that moment right then, and just the sound of machine guns going off over my head. He popped about five or six rounds in the side of the vehicle. Myself and two of the other guys ran over to the vehicle, smashed the window, and pulled the guy out to provide first aid on him... I was looking down at this kid who had just been shot in the stomach for no reason really -- he was trying to leave...I was still just standing there in shock, looking down at this kid, and he looked right up at me. And his mouth was foaming. His stomach was falling out in his hands... I was looking down at this kid, this young boy who was just trying to drive around town and took a wrong turn and tried to go the other direction, was shot at and killed, and I'm looking down at him now. And we made eye contact for about five seconds, and he just looked at me with the most empty, terrified look in his face that will never leave me in my whole life I'm sure."

That Iraqi boy died on the way to the hospital. I think the boy in Ricky Clousing died that day as well, but what an extraordinary man he has since become. Deciding he would be haunted forever if he kept silent about such an egregious violation of the rules of engagement, Sgt. Clousing notified the unit's Platoon Sergeant, who did not "take kindly" to his advice.

Clousing continued to object to American war crimes for the rest of his time in Iraq, though no one ever took kindly to his objections. When he returned to the U.S., he talked to his commanding officers, to the chaplain, to mental health workers and anyone else who would listen to his problems with the invasion and occupation of Iraq. He was told he could get out of the Army -- if he said he was gay. But he couldn't say that because he's not gay. He was told to claim he had post-traumatic stress disorder, but he couldn't do that because he didn't think he had PTSD. He was told to file as a conscientious objector; but he couldn't do that because he wasn't against all war. He was told he could avoid going back to Iraq by taking an assignment in the United States. He couldn't do that either because -- and this is exactly what Ricky Clousing told us on that sunny afternoon in Washington:

"I felt that my involvement in the army, whether it be directly or indirectly, whether in Iraq or training guys to go to Iraq, I was still that piece of machine in the system that was still allowing this war to take place and still supporting that. My actions, whether or not they were on the front line or back safely at home, were still part of the body of the machine that's occupying [Iraq]. So I ultimately felt that the only thing I could do was to leave, so I packed my stuff last June and I went AWOL."

On August 11, 2006, the day he turned himself in, Sgt. Clousing made a simple statement:

"We have found ourselves in a pivotal era where we have traded humanity for patriotism. Where we have traded our civil liberties for a sense of security. I stand here before you sharing the same idea as Henry David Thoreau: as a soldier, as an American, and as a human being, we mustn't lend ourselves to that same evil which we condemn."

Ricky Clousing -- now serving a three-month sentence in a military brig at Camp Lejeune in North Carolina -- is not the only peace hero. Others are making themselves known in growing numbers and you can read about them at the Courage to Resist website. Although we have no way of assessing the numbers from here, I have no doubt that there are also soldiers trying to do the right thing in Iraq.

But when I read about a President who doesn't know the meaning of "outrages upon human dignity" because he so clearly does not consider the very people he claims to have liberated human; when I read about a vice president who does not even have the courage to admit to the meaning of the words he uses ("dunk in the water," "last throes"); when I read about a defense secretary who tells reporters to back off if the questions get too tough, then I think about Ricky Clousing.

Twenty-four years old, Clousing told the world in simple declarative sentences why he had to give up his college money, receive a dishonorable discharge, and go to jail to take a stand against the invasion and occupation of Iraq. He'd make a very cool action figure. Come to think of it, Sgt. Ricky Clousing -- tattooed arms, Laguna Beach t-shirt, and all -- would make an awesome shepherd in that manger scene. Han Solo and Luke Skywalker are just going to have to move over.

Will Bush Pardon Scooter Libby?

Maybe you are thinking that Special Counsel Patrick Fitzgerald's case against Scooter Libby is yesterday's news, or, worse, in its last throes. Think again.

It has recently come to my attention that the title of the Ukrainian national anthem is "Ukraine Is Not Dead Yet." (Seriously, it is.) The same could be said of Special Counsel Patrick Fitzgerald's ongoing prosecution of Vice President Cheney's former aide I. Lewis "Scooter" Libby: The case -- involving charges of perjury, false statements, and obstruction of justice in connection with Fitzgerald's investigation into the unauthorized disclosure of the identity of former Ambassador Joseph Wilson's wife, Valerie Plame, as a CIA operative -- is not dead yet, nor is it even ailing.

U.S. v. Libby is Alive and Well

U.S. v. Libby is not only alive and well; it is also set to begin on January 16, 2007, just three and a half months from now. In June, the defense requested a one-month continuance, but U.S. District Judge Reggie Walton responded by granting a mere one-week extension and reiterating that pretrial filings had to be submitted by both parties in mid-November 2006.

Indeed, a review of court documents makes it abundantly clear that Judge Reggie Walton has no intention of letting this matter laze around on his docket. Filings in the case make it no less clear that Lewis Libby's opportunities to make the charges go away by exercising his rights within the judicial system are dwindling rapidly. Early on, Walton ruled that any motions to dismiss that the defendant wished to bring should be filed by February 24, 2006. Libby's attorneys filed one such motion and it was denied.

In that motion, Libby's defense team argued that the case should be dismissed because it was "obtained, approved and signed by an official -- Special Counsel Patrick J. Fitzgerald -- who was appointed and exercised his powers" in violation of the Constitution. Without getting too technical, the defense argument was that Fitzgerald was taking actions that could only be taken by a presidential appointee. This was essentially a more lawyerly version of accusations the Republican National Committee (directly tied into the Bush administration's political arm, the Office of Strategic Initatives) had begun hurling even before Libby's indictment. In various veiled -- and sometimes not so veiled -- attacks, they argued that Patrick Fitzgerald was "overzealous" and had exceeded his authority by bringing perjury and false-statements charges when he was, according to the Libby defense team and the RNC, only authorized to investigate the possible unauthorized disclosure of a CIA officer.

Not surprisingly, Judge Walton was unimpressed with Libby's motion. He ruled that it was perfectly appropriate and prudent for the Department of Justice to appoint someone outside the hierarchy of the Executive Branch when its highest officials were under investigation. He also said that Fitzgerald's letters of authority "unambiguously" authorized him to investigate and prosecute not only the disclosure of a CIA employee's identity, but also "any violations of federal law that arise during the course of that investigation."

Hoping that Graymail will be a Silver Bullet

Libby does, however, have one other hope for dismissal of the charges prior to trial: graymail -- a defense tactic so named because it is a subtle form of blackmail that forces a prosecutor to choose between disclosing highly classified information and continuing to proceed with a case. Such a tactic can be particularly effective when, as in this case, White House officials, who guard the classification system, would be as happy as clams if the whole case went away.

This is what has happened so far: In March, based on Libby's expressed intent to argue that he made false statements during the investigation because he was preoccupied with national security matters, Judge Walton ordered the government to produce -- for certain weeks in 2003 and 2004 -- a list of topics covered, and inquiries made by Libby, in his morning intelligence briefings. In effect, Judge Walton ordered the government to turn over tables of contents; he did not order it to disclose any substance contained within a classified document.

On September 28, Judge Walton began conducting closed hearings required by the Classified Information Procedures Act -- called CIPA -- to determine what parts of these topic lists would be admissible at trial. If Walton rules that certain information is admissible, and the Special Counsel does not want to disclose it, Fitzgerald may offer either to provide a statement admitting the facts that the classified information tends to prove or to substitute a summary. Then Walton, in turn, would have to decide whether those alternatives would provide Libby with substantially the same ability to present his defense as he would have if the actual information were disclosed.

An order Judge Walton issued on March 10, 2006 provides a giant clue as to how he might rule on this issue. In footnote 25, he pointed out that the prosecution does not dispute the defendant's work on important national security matters; nor has the defense attorney appeared to acknowledge that he was intending to present the substance of the documents to the jury. Then he added:

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The President Does Not Know Best

OK, everyone who has studied the Unitary Executive Theory of the Presidency, raise your hand. Anyone? Anyone?

If you are not raising your hand, you're not alone. As regular readers are aware, only recently has the world received notice that President Bush's "I can do anything I want" approach to governance has a name: the Unitary Executive Theory of the Presidency.

Not having heard of this concept, and thinking perhaps that I had missed something in Constitutional Law, I decided to survey a random sampling of attorneys about it. The group included civil practitioners, prosecutors, a federal judge, a former federal prosecutor who has a PhD as well as a J.D., defense attorneys, and a U.S. magistrate.

The precise question was, "When did you first hear about the Unitary Executive Theory of the Presidency?" Most said, "The past few weeks," but my favorite was, "A few seconds ago, when you asked about it." All agreed that the term does not appear in the U.S. Constitution and that, the last time they checked, we still had three branches of government.

Discussion of this "theory" has been prompted, of course, by President Bush's recent confession to a crime: repeatedly authorizing the National Security Agency (NSA) to intercept domestic electronic communications for foreign intelligence purposes without a court order in violation of the Foreign Intelligence Surveillance Act (FISA). FISA contains no exception for the President, but Bush claims his action is legal because: (1) Congress endorsed it in its September 18, 2001 Authorization to Use Military Force in response to Al Qaeda's September 11th attacks, and (2) he has inherent power as Chief Executive to act as he deems necessary in wartime. Many scholars, including Georgetown University's David Cole and former New York State Congressional Representative Elizabeth Holtzman have thoroughly debunked these arguments.

You don't have to be a constitutional scholar to know that Bush's legal justifications are weak. You merely have to consider the administration's duplicitous conduct. The Bush team has deliberately concealed this program, not only from the public and Congress, but, most damning of all, from the very agency that is responsible for executing the laws of this country: the Department of Justice (DOJ).

It has been widely reported that even Bush appointees, such as former Assistant Attorney General James B. Comey, and possibly former Attorney General John Ashcroft, objected to the NSA's wide-ranging warrantless spying. After 20 years as a federal prosecutor, I am absolutely certain that the vast majority of career attorneys at DOJ and criminal prosecutors from U.S. Attorneys' Offices around the country, as well as federal law enforcement agents, would have refused to participate knowingly in this program. Bush and his coterie knew that their legal arguments were weak and intellectually dishonest, if not ludicrous, so rather than making their case honestly, even to their own people, they avoided dissent by acting in secret and affirmatively misleading the entire country. Using a tragically familiar modus operandi, Bush has carried out his unlawful spying scheme by acting not as a unitary executive (whatever that is), but as a solitary executive -- as if the President Knows Best.

To understand the extent and complexity, not to mention frightening consequences, of Bush's deception with regard to the NSA's warrantless surveillance, it is necessary to consider some of the practicalities of FISA, both before and after it was changed by the PATRIOT Act.

As anyone who took high school civics knows, the government must get a warrant before conducting electronic surveillance on people within the United States. But before the September 11 attacks, few citizens knew that law enforcement had to follow different procedures to get that warrant, depending on the investigative purpose. If the purpose was chiefly to aid a criminal investigation, such as in a drug or bribery case, the agents had to get what was called a Title III warrant from the U.S. District Court. If the object was primarily to get foreign intelligence on someone within the U.S., regardless of whether they were communicating with someone in or out of the country, agents had to go to a secret court called the FISA court.

Under no circumstances could an agency electronically eavesdrop on a person within the United States without such a warrant, but if people were outside the country, the National Security Agency could electronically intrude on their communications -- such as phone calls, e-mails, or faxes -- without getting any court authorization. So, if the whole communication was outside the U.S., NSA could spy to its heart's content.

If a criminal case was at stake, the FBI or whichever agency was involved, needed a Title III criminal warrant; and if it was a foreign intelligence case, the FBI needed a FISA warrant. What was the difference between the two? Other than the difference in purpose -- criminal investigation v. foreign intelligence -- the main differences were threefold. First, the amount of proof needed to get a FISA warrant was less. Second, with a FISA warrant, the person surveilled rarely could seek judicial review because he would normally have had no way of finding out that it had even happened. The third difference flowed from the first two: because of the relaxed standard of proof and the unavailability of review, foreign intelligence agents were not allowed to share their information with criminal agents, even if they were in the same agency. That barrier between criminal and foreign intelligence agents was called the "FISA wall."

After the 9/11 attacks, however, as part of its push for the PATRIOT Act, administration representatives, mainly from the Department of Justice (DOJ), proposed numerous changes to the FISA law that that they argued were necessary due to both technological and societal developments since 1978. In particular, they wanted to break down the FISA wall to allow for greater sharing of information in order to avoid the numerous communication snafus that may have prevented discovery of the plans for the 9/11 attacks. Ultimately, the administration received most of its desired changes. Break down the "FISA wall?" You got it. Roving wiretaps? You got it. Administrative subpoenas to libraries? You got it.

And that was just the first round. Since October 2001, the administration has obtained passage of three rounds of additional changes to FISA. All the requested changes have led to considerable public debate about the threat to constitutional protections posed by relaxing the rules for getting electronic surveillance warrants as well as the increase in tools available to law enforcement. Nevertheless, for the most part, Congress has acceded to whatever requests for changes to FISA the Bush administration has made. At no time during this four-year debate about security and civil liberties, despite well-established congressional procedures for discussions that involve classified material, has the Bush administration advised Congress in any meaningful way that it was in ongoing violation of FISA; nor has it ever formally sought to amend the law to accommodate the sorts of technological advances that it now cites as the very reason for its secret program. In other words, the administration has conducted a prolonged charade during which it has pretended to participate in a democratic process of amending and enacting legislation, while secretly, but monumentally, violating the law that was under consideration.

This charade was not merely for the benefit of the public and congress but also for the benefit of the thousands of administration employees who are charged with enforcing the rule of law. When Bush announced famously on April 20, 2004, "[T]here are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way…" -- the vast majority of people at DOJ most likely believed that to be true.

DOJ has an entire website devoted to internal and external propaganda about the administration's commitment to civil liberties. Prominently displayed on the website entitled, The Patriot Act: Preserving Life and Liberty is a smiling photo of Attorney General Alberto Gonzales and the following quote: "We are waging a war…each day in a way that values and protects the civil liberties and the constitutional freedoms that make our Nation so special."

What makes Gonzales so special is that, despite being the nation's chief law enforcement officer, he has been entirely indifferent to the rule of law. Indeed, he has been complicit in the activities of an administration that (as if afflicted by an autoimmune disease that causes it to reject parts of its own body) has marginalized its career employees to hide its activities. Note that the only people who have thus far publicly defended the legality of the NSA eavesdropping scheme are: President Bush, Vice-President Cheney, Secretary of State Condoleezza Rice and the former NSA Director Michael Hayden, all non-lawyers whose self-interest is obvious; as well as Gonzales, Bush's long-time friend and former White House Counsel, and Assistant Attorney General William E. Moschella, a Bush appointee who has been a lawyer for fewer than 10 years and has never actually practiced law. We should not expect to hear support for the warrantless NSA spying from any career criminal prosecutors.

Indeed, this illegal surveillance is a prosecutor's nightmare. As Hayden testified before the Senate Intelligence Committee in October 2002, the National Security Agency turns over legally obtained evidence to the FBI in a way that prevents FBI agents from knowing its source or sources. If the NSA hides the source of its legally obtained evidence, it certainly also hides the source of any illegally obtained evidence it may be turning over. Neither illegally obtained evidence, nor evidence gleaned from it, can be used in a criminal prosecution. Consequently, an untold number of successful prosecutions are now jeopardized by the possible use of tainted evidence. Such challenges have already begun in the case of Lyman Faris, who is serving a 20-year sentence for conspiring to blow up the Brooklyn Bridge. In other words, the government's reckless adoption of an illegal surveillance program could actually have the effect of undermining the very prosecutions it claims as its successes in the "War on Terrorism."

The Bush administration, of course, argues that this sort of secret spying is what we have to do for our own security. Indeed, they suggest that if the program had existed prior to 9/11, those attacks might have been prevented because they would have "caught" two hijackers who were making calls to al Qaeda from San Diego. In legal terms, this claim would be called the defense of "necessity," but, in lay terms, this claim would be called " "a big fat lie" -- and a poorly chosen one at that.

The hijackers to whom Bush and his advisers are referring are Khalid al-Midhair and Nawaf al-Hamzi. It is astounding that Bush should cite them in support of the illegal spying program, because the NSA knew about these two men and their relationship to al Qaeda as early as 2000 as a result of a legal wiretap they had on a safe house in Yemen. But they never bothered to place them on a watch list or provide detailed information about them to the FBI or the CIA. NSA's Michael Hayden said they failed to provide the information to other agencies because they didn't appreciate its significance.

The problem at that time, as the 9/11 Commission and so many other investigative bodies have found, was failure to communicate among the agencies, or even within the agencies. The NSA was unable to recognize the importance of its own information because it didn't know what the other agencies knew, and was institutionally incapable of sharing even legally obtained information because it was operating as a lone wolf. Ironically, in the hands of President Bush, the NSA has effectively become even more isolated -- essentially an outlaw. And it still does not know everything that the other agencies know, so it has no more capability of recognizing the importance of what it learns now than it did before. So it is difficult to imagine how it can now possibly use its illegally obtained information to prevent attacks.

It appears, then, that President Bush, using his wholly fabricated Unitary Theory of the Executive, has clandestinely managed to marginalize his own agencies and eviscerate many of the information-sharing benefits of his own PATRIOT Act. When will we, as a country, finally stop thinking that the President Knows Best?

Smoking Guns and Red Herrings

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.

We should expect more attacks on Joseph Wilson, even though they represent a very large red herring (more the size of a mackerel). These will be meant only for the court of public opinion. Since the White House has already admitted, repeatedly, that it had insufficient evidence to mention that Saddam Hussein was seeking Niger "yellowcake" uranium in the President's State of the Union address in 2003, claims that Wilson went to Niger on a boondoggle or that he is merely a partisan critic (both of which appear to be untrue) have never been the least bit relevant. If you don't dispute the essence of the testimony of a witness, then undermining his credibility is pointless in a court of law.

We should expect another red herring, one that should have been thrown back in the river long ago: that perjury, obstruction of justice, and false statements charges are not "substantive," and so somehow less serious. "Substantive" is a legal term, referring to a crime that can be proved without reference to the elements of another crime. For example, bank robbery is a "substantive crime" and conspiracy to commit bank robbery is not. (But they're both crimes.) Perjury, obstruction of justice, and false statements may arise out of the investigation of other crimes, but they stand on their own. So they too are "substantive" crimes. More to the point, as Patrick Fitzgerald eloquently explained in his press conference, lying in an investigation is extraordinarily serious, because it undermines the integrity of the process.

We should expect attempts by pundits to derive "meaning" from the absence of charges under the Intelligence Identities Protection Act or the Espionage Act. Reasons for the absence of such charges can range from insufficient evidence to concerns about the Classified Information Procedures Act, which governs the use of classified information in a criminal case. No one other than Fitzgerald, his staff, and the grand jury knows why certain charges were not brought and they will never be able to explain their decisions.

We should expect a campaign to demonize Fitzgerald through claims that he is overzealous and has exceeded his authority. Such attacks are legally irrelevant, but more important, they're wrong. Fitzgerald's original mandate, contained in a letter from Deputy Attorney General James Comey, was to investigate all crimes arising from the outing of Valerie Plame. Out of an apparent abundance of caution, Fitzgerald requested clarification of the term "all" and was advised, again by Comey, that it included both underlying crimes and crimes that stemmed from the investigation of the underlying crimes. At no time did Fitzgerald seek, or receive, an expansion of his authority: it was there all along, as it would be in any investigation of federal crimes.

We should also expect pundits to argue that this prosecution is political. That is the most despicable of red herrings considering that Fitzgerald has been a career prosecutor forbidden by the Hatch Act to participate in politics for twenty years, is registered without political affiliation, and was appointed by a Republican. Also, the resulting indictments were returned by grand jurors who heard evidence for two years, after which a majority, at least 12 out of 23, decided that there was probable cause to believe -- in other words, it was "more likely than not" -- that the defendant had committed all the elements of the crimes charged. In other words, in investigating and returning an indictment against the Vice President's Chief of Staff, Patrick Fitzgerald and the grand jury have followed one of the most basic principles of criminal jurisprudence: that the law is no respecter of persons, that all persons stand equal before it. It would have been the most flagrant violation of the rule of law if the prosecutor and grand jury had walked away from Lewis Libby's deliberate deceptions simply because he was an important government official.

But should we expect, given the Republicans' attempts to belittle and politicize the case thus far, that President Bush will pardon his senior administration official if Libby is convicted on these serious charges? The 1992 Christmas Eve pardons of Iran/contra defendants by former President George Bush Sr. provide cause for concern. Let us hope that the current President Bush will not undermine the rule of law in this way.


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