Political Motivations, Personal Ambition & Prosecutorial Discretion: Reading Fitzgerald's Tea Leaves
Plame Leak Prosecutor May Pull A Rabbit Out Of His Hat-Will Human Nature Defeat Common Sense?
The grand jury in the CIA leak case expires Oct. 28th, and people expect Fitzgerald to signal his intentions later this week.
Given that basically no criminal action has been established, you'd think the most likely event would be that the whole thing gets dropped. You might be wrong. This kind of thing makes me really wonder about the way the system works sometimes.
Many lawyers in the case have been skeptical that Fitzgerald has the evidence to prove a violation of the Intelligence Identities Protection Act, which is the complicated crime he first set out to investigate, and which requires showing that government officials knew an operative had covert status and intentionally leaked the operative's identity.
No proof that a crime has been committed. Great. Let's drop the whole thing. Right? Wrong!
But a new theory about Fitzgerald's aim has emerged in recent weeks from two lawyers who have had extensive conversations with the prosecutor while representing witnesses in the case. They surmise that Fitzgerald is considering whether he can bring charges of a criminal conspiracy perpetrated by a group of senior Bush administration officials. Under this legal tactic, Fitzgerald would attempt to establish that at least two or more officials agreed to take affirmative steps to discredit and retaliate against Wilson and leak sensitive government information about his wife. To prove a criminal conspiracy, the actions need not have been criminal, but conspirators must have had a criminal purpose.
Lawyers involved in the case interviewed for this report agreed to talk only if their names were not used, citing Fitzgerald's request for secrecy.
One source briefed on Miller's account of conversations with Libby said it is doubtful her testimony would on its own lead to charges against any government officials. But, the source said, her account could establish a piece of a web of actions taken by officials that had an underlying criminal purpose.
Conspiracy cases are viewed by criminal prosecutors as simpler to bring than more straightforward criminal charges, but also trickier to sell to juries. "That would arguably be a close call for a prosecutor, but it could be tried," a veteran Washington criminal attorney with longtime experience in national security cases said yesterday.
Other lawyers in the case surmise Fitzgerald does not have evidence of any crime at all and put Miller in jail simply to get her testimony and finalize the investigation. "Even assuming . . . that somebody decided to answer back a critic, that is politics, not criminal behavior," said one lawyer in the case. This lawyer said the most benign outcome would be Fitzgerald announcing that he completed a thorough investigation, concluded no crime was committed and would not issue a report.
The incentives here are kind of messed up, and they make it pretty easy to predict what's going to happen, based on human nature.
If he decides to go ahead with the conspiracy charges, the worst case scenario for Fitzgerald is months to years of political paralysis as the Democrats and the media make hay while the sun shines, until a complicated court case based on hearsay and an imaginary conspiracy winds down to a deadlocked jury or a "not guilty" verdict.
In the best case scenario for him, Fitzgerald succeeds in selling a jury on nebulous bullshit charges of conspiracy, and goes down in history as the man who brought down the Bush administration.
Whether he gets his verdict or not, he can then spend the rest of his life living off the book sales and public speaking fees, possibly running for office in a Democrat-heavy constituency later.
If he decides to drop the whole thing because there is no evidence that a crime was committed (which of course there isn't), he's a footnote.
What do you
think he's going to do? Rise above petty ambition and do the right thing, or be a fame whore? I'd like to predict he'll do the right thing, but I'm afraid I don't know a thing about the man's character, and I have to assume the worst.
The fact is, the lawyers who spoke to WaPo (anonymous sourcing, ironically enough the thing that got Miller in trouble in the first place) probably know what they're talking about.
A "web of actions" with a "underlying criminal purpose"-how in the hell do you disprove something like that? This trial has boring, long, painful and messy written all over it.
No matter how long, pointless and messy the trial is, and no matter how much it hinders the conduct of the nation's business, do you think the media will ostracize him and turn him into a hated pariah, what they did to Ken Starr? Of course not, silly. He's going to be lionized as the lone hero speaking truth to power, the Archibald Cox of our times.PowerLine has some convincing arguments
that the NYT's Miller is lying about the whole rationale for why she wouldn't testify and finally agreed to. Here's their conclusion:
It seems clear that Judith Miller and her lawyers aren't telling the truth. What isn't obvious, is why. Three possibilities: 1) Miller went to jail because she wanted to pose as a martyr, and she just needs an excuse for why she now wants to go home. That's plausible as far as it goes, but it doesn't explain why Miller stayed in jail for another week and a half after getting Libby's "clarification," while her lawyer negotiated with the prosecutor. 2) Miller went to jail because she didn't want to answer questions about her tipping off a terrorist-supporting group that the FBI was about to execute a search warrant, an episode that also could have come before Fitzpatrick's grand jury. She and her lawyer laid the blame on Libby so that the public wouldn't learn about the other episode, which is pretty much unknown. Plausible, and consistent with what we've been told about her lawyer's deal with the prosecutor--if, indeed, the terrorist tipoff was something that Fitzgerald could have pursued. I'm not sure whether that's correct or not. 3) The third alternative is the most sinister: Miller went to jail to protect not Libby, but another source or sources, and the prosecutor has agreed not to ask her about those other sources. If that's true, it suggests that someone in the administration--presumably, either Karl Rove or Scooter Libby--is being set up.
(thimbleful of cognac to Michelle Malkin
). Now, if the third alternative is true, doesn't that paint Fitzgerald's motives and character in an awfully poor light?