Patterico's Pontifications

3/10/2007

Beldar Defends Fitzgerald’s Exercise of Prosecutorial Discretion in a Brilliant Post

Filed under: Crime,General,Politics — Patterico @ 11:22 pm



Beldar is always good, but he is absolutely brilliant in this post, which addresses the issue of Fitzgerald’s prosecutorial discretion.

I have been arguing on this blog in recent days, both in posts and in comments, that it is absurd to criticize Fitzgerald for not shutting down his investigation the second he learned that Armitage was the leaker. I have argued that Fitzgerald can’t be criticized for being overzealous as to Libby — and also be criticized for not bring perjury indictments against a host of other characters whose recollections differed. I have argued that Fitzgerald already had evidence of lawbreaking by Libby the day he accepted his appointment. And I have argued that we don’t know for sure why Fitzgerald took the actions he did.

Beldar explains all this and more, in excellent, readable prose. I hope that it won’t cause him to get fewer readers if I excerpt a few passages, because his post deserves to be read in its entirety — especially by you Libby defenders.

On the idea that Fitzgerald should have precipituously shut down the investigation based on some FBI reports, Beldar says:

In this investigation in particular, though, I believe that there were extraordinary and compelling reasons for the prosecution to be particularly thorough and particularly diligent and particularly open-minded. In exercising its judgment, the prosecution should have leaned hard in the direction of not shutting down prematurely. And it should have leaned hard in favor of allowing the full adversary system to play out fully, through and including a jury’s verdict, rather than aborting that process through a prosecutorial decision to shut things down.

. . . .

Neither am I at all persuaded by people who argue that the investigative and prosecutorial resources expended in L’Affair Plame were disproportionate or not cost-justified. . . . [D]ollar-based objections to the Special Counsel team’s efforts are, in my opinion, silly and transparent fronts for objections that are really based on other (including political) motivations.

I absolutely agree — and I also agree with Beldar that there is no reason to suspect that Fitzgerald is some sort of left-wing hack out to trash Republicans for petty reasons:

Nor, considering everything else I’ve read about him apart from L’Affair Plame, have I heard any reason to think that Patrick Fitzgerald was an inappropriate or unwise choice to serve as Special Counsel. To the contrary, I’ve yet to hear any remotely persuasive criticism of him outside the context of L’Affair Plame.

Me neither. I have heard only good things about the man.

Beldar notes that the length of the investigation was in part due to the fact that members of the press were involved. This meant, under DoJ guidelines, that Fitzgerald had to exhaust all available options before dragging them into court — and then, as we all witnessed, he had a real fight on his hands once he did get them into court. And by the way, I agree with Beldar that getting the press people into court was one of the great triumphs of the case. As Beldar says:

The NYT continues to insist that the most significant ramifications of this case were on the press. (I actually tend to agree that, in the big picture as measured over many years, the righteous and appropriate slap-down delivered to the NYT might be the most important legacy of the case.)

Regarding the objection that Fitzgerald didn’t bring perjury indictments against others, Beldar is characterisically insightful:

Some of those who argue that Fitzgerald must have abused his discretion, or acted out of anti-Republican partisanship (hah!) or a slavish desire to placate the Administration’s critics (double-hah!) or the press (triple-hah!), point to the indictments he didn’t bring. (Some of these same critics also claim that Fitzgerald was acting out of self-aggrandizing motives, i.e., to get a conviction of somebody, not two paragraphs after faulting him for not indicting anyone other than Libby. The simultaneous making of these arguments, even if done under oath, would probably not be perjury, but even when done only on a blog, it is very silly.)

Bingo. And further:

The fact that two witnesses’ recollection of facts differ, for example, is by no means a sufficient reason to conclude that one of them should have been indicted for perjury, and anyone who makes that argument is either very foolish or very disingenuous. Scooter Libby’s prosecution didn’t depend just on the difference between his purported recollection and Tim Russert’s, for example, but between his purported recollection and the recollections of a large handful of other witnesses, key documents, and Libby’s own sworn recollection at other times.

And I simply love this bit:

[M]ost of the other targets being bandied about — Russert, Fleischer, Armitage, Rove, Cheney — all have major and glaring holes, obvious even to public outsiders, in any potential indictment against them. It’s one thing to toss out a paragraph in your blog about how so-and-so looks as culpable as Libby or even moreso; it’s an entirely different thing to get an indictment and conviction based on proof beyond a reasonable doubt of every element of a criminal offense.

With due respect, I’ve yet to see a serious effort by anyone in the press, or by any of those bloggers, even to outline the elements of an indictment as to any other possible crime or target that would survive an immediate motion to dismiss. Such an effort would require you to identify the statute, and then come up at least a meaty sketch of the names, dates, and places for the events by which you’d propose to prove every element of the crime defined by that statute. Maybe those arguing “so-and-so should have been indicted” lack the competence to frame an indictment, but I think they also lack the law and the evidence. If you’re gonna argue that Fitzgerald would-coulda-shoulda, then put up or shut up on the very first step he’d have had to take. Otherwise you’re just blowing smoke.

I agree. There is a large group of you folks who simultaneously seem to believe that a) the overwhelming evidence against Libby was easily explained away as the product of faulty memory, and at the same time, b) Fitzgerald is suspect because he didn’t bring indictments against any other witness who had a faulty memory or who contradicted other witnesses’ testimony. This, to me, ignores the significance of the issues misrecollected, the number of witnesses whose memories contradicted Libby’s, the documentary evidence, and so forth.

Many of you also fault Fitzgerald for dragging Libby in front of a grand jury. Sure, you say, Libby might have made false statements before Fitzgerald’s appointment. But why compound things by putting him in front of a grand jury? you ask. It’s a perjury trap! you complain. Beldar responds:

Let’s assume, for purposes of argument, that based on the FBI interviews and fact-gathering that had already been done, Fitzgerald was able to conclude with reasonable confidence within days of becoming Special Counsel that there had been no criminal violation in the leaking of Plame’s CIA status, or at least that there was insufficient evidence to make it sufficiently likely that he could obtain a conviction for that. Should he have closed down the investigation then, based solely on that, without doing anything else?

Unquestionably not — not unless he was content to have public confidence in the justice system take a huge hit. Recall, you Libby defenders, just how successful Libby’s defense was at suggesting that FBI interviews were likely to be biased, inaccurate, and unreliable (as compared, say, to stenographically or electronically recorded grand jury testimony or, better yet, open trial testimony tested by full cross-examination). Remember that this is a system set up to provide increasingly stringent tests for evidence — and what the policeman says he was told might be the end of the story, but it very, very often is not. Again, for purposes that justice not only be done but be seen to be done, would any Special Counsel be justified in running at least some of the key fact witnesses before a grand jury? That’s still a secret proceeding, and one that’s comparatively likely (in comparison to an open adversary-system trial) to produce distorted results, but at least it’s an indication of some further diligence than just relying on FBI agents’ notes.

This is similar to something I said in a recent post:

Another point many of you seem to be making: Fitzgerald knew that Armitage was the original leaker. Therefore, the second he learned that, he should have brought his investigation to a grinding halt — immediately.

I don’t follow this logic either. How is Fitzgerald supposed to know that nobody else was involved in any crimes, just because Armitage says he was the leaker? If Armitage says he did this on his own, must Fitzgerald take Armitage’s word for it?

I won’t excerpt any further. Read it all. Beldar has done an incredible job of showing why many of us reject so many of the arguments we’ve heard advanced on Libby’s behalf. I’m with Beldar as he puts it in his conclusion: it’s not impossible that the system broke down here — but I’m leaning pretty heavily toward the view that Libby is guilty as charged, and that Fitzgerald (on the whole) acted appropriately in his investigation and prosecution.

OK, now go straight to Beldar’s post and read it all.

40 Responses to “Beldar Defends Fitzgerald’s Exercise of Prosecutorial Discretion in a Brilliant Post”

  1. I posted essentially the same thing in the previous thread, but I will post it again here.

    I think what frustraits me about statements like this is the implication that Fitz was “just doing his job.” In fact, Fitz totally failed to do “his job” in the leak investigation. He had the “first leaker” from the begining, he just didn’t know he was the first leaker.

    Armigate confessed to leaking to Novak, but apparently “forgot” he told Woodward three weeks earlier. Rather than digging into Armitage’s story, Fitz chose to dig into Libby’s. As a result, Fitz convinced himself, as he stated in the famous presser, that Libby lied about “hearing it from reporters” to conceal the fact that he was actually the “first leaker.” That was Fitz’s original theory of the case and his original motive he proffered.

    But, Armitage did talk to Woodward in mid June, before Libby ever spoke to a reporter. There are three possible reasons why Fitz did not discover that Armitage was the first leaker

    1)apparently never bothered to check Armitages appointment calander.

    2) if he did check, he never asked Armitage if he spoke to Woodward about Plame.

    3)if he did ask Armitage, Armitage “lied” and said he didn’t say anything to Woodward about it.

    Also, Armitage engaged in a pattern of activity that is very suspcious. He had a friend of his call Novak to tell him before Novak talked to investigators that Armitage’s statement was “inadvertant.” He also stopped by Marc Grossman’s house the night before Grossman’s first FBI interview to tell him that he (Armitage) had already confessed to leaking to Novak. It is an open question as to what else they may have discussed.

    So, the issue some of us have is not that Fitz was too thorough, but that he was “thorough” in only one direction, the White House and OVP. He never investigaged State with anywhere near the viggor he spent going after Libby and he never charged Armitage with perjury or obstruction despite the fact that the evidence against Armitage at this point is much stronger than it was against Libby when he filed the indictment.

    Libby’s story that he was hearing it from reporters during the week of July 7th was only questionable because the FBI didn’t know that Armitage had already told Woodward on June 13th. If the FBI had known that, then Libby’s story sounds merely confused (about which reporter he was hearing it from) rather than deliberately concocted to protect himself.

    Ranger (458f73)

  2. Well, I can only say that I disagree vehemently…and to me, it appears that you have not followed this trial but instead have taken your insight from other writings.

    [I have followed it like any other reasonably informed person does — not in depth, but with a knowledge of the basics. And I have said that at every step. — P]

    There certainly are differing opinions, but to me, the underlying fact is that there was NO crime and should have been no prosecution.

    Probably at least 5 individuals committed perjury and yet one political prosecution. Actually, since there was no crime being investigated, there should be no charges period.

    A reasonable prosecutor would have closed the case after being presented with the FBI’s evidence.

    [There is a huge section of the post above directed at that argument, and an even more thorough section in Beldar’s post. Why don’t you address it? Why do you just throw out the assertion, without even acknowledging that the argument has been addressed in the post? This is the sort of comment that leads me to believe I’m wasting my time talking to defenders of Libby. — P]

    Not the least of my concerns were the actions of the FBI with the lost notes of the major interview. I don’t rule out corruption…

    [So the FBI notes can’t be trusted because they might even be deliberately losing notes — but you want Fitz to have closed the investigation based on . . . FBI notes. Does this make any sense?? By the way, this is also an argument raised in the post. — P]

    Deagle (cf6421)

  3. “I don’t follow this logic either. How is Fitzgerald supposed to know that nobody else was involved in any crimes, just because Armitage says he was the leaker? If Armitage says he did this on his own, must Fitzgerald take Armitage’s word for it?”

    No…he would have investigated and determined it to be true and dropped the case. In actually, he did not even call many witnesses to verify or disclaim this. Makes you wonder…

    Deagle (cf6421)

  4. Heh, I love your comment summaries…”a brilliant post”…ha…

    By the way, I sure hope that prosecutors assigned to investigate specific crimes do NOT spend their time looking for perjury and other process crimes. Fitzgerald simply had to justify his assignment. It seems that todays prosecutors tend to prosecute for advancement rather than justice (Out the door in 2004).

    Does it sound like I have lost faith in the justice system, well yes….

    Deagle (cf6421)

  5. Just one last thing… If Clarice can’t convince you, then the any other conversation regarding the this trial will be unpersuasive.

    Deagle (cf6421)

  6. I’m sure it comes as no surprise that your point of view will elicit a reaction from the Libby defenders (and/or Fitzgerald detractors). I’ve been publicly barking up the same tree that you and Beldar are here, since the indictment was handed down in October 2005. I’ve been treated to replies ranging from good-natured humor to thinly-veiled contempt. I tend to hang out at righty web sites (me being to the right of Goldwater), and the vast majority of replies to my Libby-case comments rejected my observations, legal theory, opinions and conclusions as “wrong.” Many give their reasons why.
    .
    I’ll read here for new arguments, but as this case has been debated strenuously for 15 months or so, I expect a chorus of well-practiced lines.
    .
    Anyway, it’s a pleasure to see some growth in the pro-Fitzgerald-pariah club. Used to be me and McCarthy (I’m sure a few others), and McCarthy didn’t often opine about the Libby case.

    [My attitude on the case has always been: Wilson is lying scum, but maybe Libby lied too. I didn’t post on it because I didn’t follow all the ins and outs, and to be honest, I still haven’t — but I have a decent overview of the evidence, and from what I know, it seems compelling. — P]

    cboldt (a60d7f)

  7. Me too!!

    TCO (a45405)

  8. cboldt and TCO,

    In terms of the “small case” you are correct. There was sufficent grounds to suspect that Libby’s inacurate testemony was deliberate, but given the big case context, it is hard to justify charging Libby and letting Armitage walk.

    Armitage clearly mislead the investigation by failing to disclose his 13 June leak to Woodward. That misleading may not have been deliberate, but it may have been. Combine that with Armitage’s efforts to shape the testimony of key witnessess (Grossman and Novak) and his claim to have “forgotten” gets less believable.

    I would have much more sympathy for the position that Fitz was “just doing a thorough investigation” if he had uncovered Armitage’s leak to Woodward and agressivly persued his obstruction of the investigation as well.

    And if you don’t think Armitage’s “forgetting” about his chat with Woodward mislead investigators, just go back to the press conference Fitz gave where he laid out why he thought Libby was lying. Fitz clearly stated that Libby’s “lies” were designed to conceal the fact that he (Libby) was the first leaker. ‘Mr. Libby claimed he was at the end of a chain of phone calls, but in fact he was at the begninning of the chain, the first government official to disclose Ms. Wilson’s CIA employment (or words to that effect).’ If Armitage had admitted his leak to Woodward on the 13th of June, Fitz’s motive for Libby to lie evaporates. I seriously doubt that Grand Jury would have indicted Libby absent that strong (but false) motive that Fitz presented them with.

    Ranger (31e625)

  9. I have said in another thread on Libby that I think he did commit perjury. I reject the notion that if there was no “real” crime there can’t be perjury. I do not believe that Fitz was politically motivated.

    However, I do not understand his treatment of Armitage. As far as is known, he not Libby was the first leaker. He was not completely truthful, whether through inadvertence or design, and met with another witness (Grossman)prior to the latter’s testimony. Yet Fitz gave him immunity. Why?

    Stu707 (5b299c)

  10. — I do not understand his treatment of Armitage … Fitz gave him immunity. —
    .
    Do you have a cite for that? Not that it affects the reason for indicting Libby and not indicting others, but the assertion you make has floated around at Just One Minute and elsewhere with no support that I am able to locate.

    cboldt (a60d7f)

  11. Ranger: Do you think that Fitz had a case against Armitage? You seem to think that there wasn’t enough of one (correct me if I’m wrong) and there were more lies and more reinforcement of them by Armitage than by Libby. Note that Fitz did not go after Rove either. (Interesting that you don’t use that as your example, vice Armitage.) He evidently saw various gradations of liar and went after the most extreme. Armitage managed to do enough to avoid hanging himself. Rove, too, albiet barely, I bet. Libby brazened it out, instead of fessing up (and he had chances to amend his statements). So he deserves his punishment. He knowingly lied under oath. People deserve to be punished for that. You are supposed to TELL THE TRUTH!

    TCO (a45405)

  12. Hmm. Well if you say so Patterico.

    Did Fitz or the FBI directly ask Armitage if he had leaked to anyone besides Novak when he was interviewed BTW? (we don’t know)

    Because he did. He leaked to Woodward. And he didn’t tell the DoJ (and hence Fitz) that fact. And if they asked him, and he didn’t tell them or lied to them, I don’t see how you guys can argue there isn’t another charge that could survive a motion to dismiss.

    And Woodward has said that he asked Armitage to come forward several times over the length of the investigation. It was only after Fitz said in his presser announcing Libby’s indictment that Libby was the first to leak Plame that Woodward went to Armitage and said he couldn’t remain silent any longer that Armitage came forward and admitted that yes, he leaked to Woodward too (sorry, maybe someone else can find a cite for that, I can’t right now).

    And since Libby’s story was that he was hearing about Plame from reporters Armitage leaking to Woodward as well as Novak is sort of important, no?

    So, is it really so incredible to think that Armitage could have or should have been charged with obstructing the investigation? After all, the investigation was supposedly into the leak of Plame, and Armitage was the first to leak it by his own admission, and also by his own admission he didn’t reveal that to Fitz until after Libby was indicted.

    Wouldn’t survive a motion to dismiss? Really?

    Dwilkers (4f4ebf)

  13. Dwilkers, you should be happy that we got one of the liars then. Instead of wanting conservatives to get off. that is so fucking weak. You’re acting like a pussy-ass liberal. Take it like a man. Libby will soon.

    TCO (a45405)

  14. As I understand it, the main reason Armitage got a pass is that the evidence showed he didn’t know, and didn’t say, that Plame was a covert or classified CIA employee when he discussed her with the journalists. Just that Wilson has this wife who works for the CIA, with the assumption she had a public, non-classified job. That made prosecution difficult because there was no intent to disclose or knowing disclosure of some form of secret information.

    The people who got the most scrutiny from Fitz were those who might have discussed Plame while knowing she might have some classified status attached to her.

    aplomb (4c3235)

  15. — As I understand it, the main reason Armitage got a pass is that the evidence showed he didn’t know, and didn’t say, that Plame was a covert or classified CIA employee when he discussed her with the journalists. —
    .
    That would be an incorrect understanding and differentiation between the Libby and Armitage fact patterns.
    .
    There was no direct evidence that either Libby or Armitage knew, or that either one added in comments to reporters, “Mrs. Wilson’s classified,” or whatever rhetorical incarnation of that notion you prefer to substitute.

    cboldt (a60d7f)

  16. TCO says:

    Dwilkers, you should be happy that we got one of the liars then. Instead of wanting conservatives to get off. that is so fucking weak. You’re acting like a pussy-ass liberal. Take it like a man. Libby will soon.

    A disgusting comment. And probably untrue. I’m sure Libby will be going to a country-club style prison. I have visited one at Lompoc. It’s not dignified or anything — inmates milk cows and do other manual labor — but there are no bars or fences. There is a softball diamond. The only thing that keeps people from escaping is the knowledge that if they do, they’re going to maximum security.

    I doubt Libby will be raped there. I know that disappoints you, TCO.

    Patterico (04465c)

  17. This is clearly a case of a prosecutor who went after a medium sized fish hoping he would give up the bigger fish. Cheney or even Bush. Prosecutors do that all the time. And they punish those who don’t cooperate and tell them what they want to hear. Some may do it for purely professional reasons. They may truly believe the person has information and is lying to protect their superiors. But most, I think, do it simply because they can. Fitzgerald went after Libby because Libby could lead him to Cheney.

    The fact that Libby refused to implicate Cheney is why Fitzgerald pursued the case againt Libby. He probably thought Libby was lying and would eventually cooperate rather than face indictment or trial. That alone is proof to me that Libby was telling the truth. But prosecutors don’t think that way. They set their sights on a target, every word that target says gets gone over with such scrutiny that nobody involved in such a convoluted mess as the Plame affair could possibly not look like a liar when every word they say is under such a magnifying glass.

    There are many, many, examples I could give. A good interogator can make anyone look like a liar. During the William Kennedy Smith rape trial one of the witnesses (I think it was Patrick Kennedy) was asked what time they left the house that night. He repeatedly told his questioners that he didn’t wear a watch, and had not noticed the time. They told him to guess. So he did. When they got him on the stand they grilled him like a criminal because his time didn’t match the meticulous timeline that the prosecutor had for the night in question. He never should have guessed, and luckily he didn’t lose his composure on the stand and he was able to explain that he had just made a guess after repeatedly saying he didn’t know what time it was.

    Prosecutors have way too much power in this country. They ruin lives on a whim. Libby deserves a pardon. Bush should pardon Clinton at the same time. That would shut up the Lefties. After all, none of them remember why Clinton got impeached in the first place. He was caught lying under oath. But all they remember is the blow job.

    Jayine59 (78bac9)

  18. The homosexual rape was subtext and allusion and added in for spice. Of course, we can think about taking “punishment” like a man. Or about “telling the truth like a man”. You know George Washington and the cherry tree. The extra butt-rape allusion adds some twist to the knife though…

    TCO (a45405)

  19. Oh…and instead of jumping so fast to the titilating part, you might comment on the more relevant first part.

    TCO (a45405)

  20. Jayine: Know. All you remember is the blow job. It was wrong for Clinton to lie. It is wrong for Libby to lie. And I don’t care if one got off and one got punished. We need to punish misbehaviour. We have an epidemic of people who won’t take responsibility. And lots of them are conservatives. But they are pussy-asses. No balls to tell it like it is, when it might hurt their side. I don’t want them in my conservative movement. They are weak and worthless.

    TCO (a45405)

  21. A man is appointed to investigate a crime and punish those who committed it. He investigates. He finds no crime has been committed. That should have been the end. No amount of verbiage and twisted logic can change this. Playing out the adversary system when there is no crime in the first place is misusing the justice system, no matter who does it. I admire this blog, but please. Oh, and sure, everyone thinks highly of Fitz. So what?

    Fred Beloit (5d97e8)

  22. This is just plain evil. What the hell is wrong with you people, that makes you think its cool to put innocent people in jail? Just plain evil….

    Lucius (28d602)

  23. A man is appointed to investigate a crime and punish those who committed it. He investigates. He finds no crime has been committed. That should have been the end.

    I just don’t think it’s that simple. You don’t know that Fitzgerald *knew* that absolutely no crime had been committed, for all the reasons that Beldar explained.

    Patterico (04465c)

  24. Me neither. I have heard only good things about the man.

    you might want to talk to Frank Cowles Jr, who had his reputation trashed and suffered financially due to a faulty indictment by Fitzgerald

    windansea (944f82)

  25. What you guys don’t understand is that lying under such conditions is ITSELF a crime. A material one. One which can and should be prosecuted. If Fitz had let it slide, he would have been ignoring a crime. Libby deserves what he got. Oh…and I’m more and more convinced that these guys in the White House are not even bright. Frigging Aspens letter. What the hell was that?

    TCO (a45405)

  26. I think there is a lot of fully justified but mis-directed anger on the right over Libby’s prosecution.

    The anger stems from the left’s insistence that Libby’s conviction proves their entire narrative on the controversy: namely, that the White House was embarrassed because the heroic Joe Wilson had caught them red-handed lying about intelligence to justify the war and sought retribution against Wilson by “outing” his wife.

    This is infuriating because the conviction proves nothing of the sort, yet the main stream media will report it that way endlessly and will treat it as an accepted fact that has been “proven in a court of law”.

    It is also infuriating because, assuming Armitage is telling the truth, we now know that it was Wilson himself who told Armitage his wife worked at the CIA on WMDs, and because we know from Armitage that Wilson was “calling everyone and telling them” about his wife, apparently because he was pissed that he was being ignored and dismissed as a lightweight and thought his wife’s position would give him credibility.

    So, out of all of this, one person who DID leak Plame’s identity, namely Wilson via Armitage, gets a big book deal, a movie deal, and is celebrated as a hero for standing up to the big, bad Bush administration — while Libby goes to jail.

    Infuriating and unfair? Yes. But that is not Fitzgerald’s fault. And if, at the beginning of the investigation, he had reason to believe that Libby was lying to investigators, and reason to believe he could expect to prove it and get a conviction, it was his job to pursue it.

    I can’t imagine any conservative arguing that a prosecutor should ignore a felony if it appears one has been committed, simply because prosecuting that felony will be preposterously misconstrued, distorted and lied about by liberals and leftists.

    The right has every reason to be angry about this affair, but let’s direct it where it needs to go: to the left and all their stooges in the main stream media. Mr. Fitzgerald was just doing his job.

    Michael Smith (b8378c)

  27. Beldar argued that Fitz was obligated to give the “appearance of doing justice” as the rationale for completing the investigation after learning of Armitage’s initial leak to Novak, as follows:

    To the extent possible — and total success on this is never going to be possible — this investigation not only had to do justice but to be seen to do justice. No result would ever have satisfied everyone. In this particular case — which unquestionably touched upon many matters of national security having nothing whatsoever to do with Ms. Plame and her particular status — permitting justice to be seen to have been done was going to be especially difficult.

    Some of Fitzgerald’s PR problem (not that he’s losing any sleep over it) is a result of appearing to have pulled his punches with respect to anyone critical of Bush. One of the examples given was his failure to question Andrea Mitchell and David Gregory (there are others)– at all. It gives the appearance that he was concerned that what they might say would make his case against Libby more difficult.

    I understand, even if I disagree with, his decision to avoid the appearance of a whitewash, but would it have been too much to expect him to “appear to do justice” with respect to a complete investigation to reveal a complete understanding of the facts?

    capitano (03e5ec)

  28. Begging the Biggie…

    Beldar has put up a post, extensively excerpted by Patterico (who calls it “brilliant”), that does an excellent job of defending Special Counsel Patrick Fitzgerald from charges of legal incompetence: Beldar argues that Fitzgerald: Had sound legal rea…

    Big Lizards (5ca406)

  29. Beldar writes a long-winded – protect the prosecutor – rationalization for an awful, and expensive, piece of (DC) skulduggery.

    RJN (e12f22)

  30. Two weeks ago, journalism prof Matthew Taylor wrote an Op-Ed in the Baltimore Sun lamenting the absence of a Federal Shield Law for journalists, using the Libby Trial as the exemplar of why one is needed.

    Taking the citizen’s view of the public-interest side of the issues discussed by Patterico & Co., I hew to the opposite perspective. I wrote to Taylor,

    …I view the aftermath of Wilson’s NYT Op-Ed as an example of why broad shield laws are not in the public interest… In the current tangled affair, none of the major players distinguished themselves. The Bush Administration, we now know, were made up of conniving spinners like Rove and Libby, busily planting favorable leaks. Joe Wilson was an opportunistic liar who grossly misrepresented his own findings, and the context of his mission to Niger. Valerie Plame lied about her key role in having Wilson engaged for that trip; her motives are still unclear. The CIA comes off as a bunch of incompetent and ass-covering bureaucrats, both in terms of their (we now know) grossly incorrect estimations of WMDs, and in their failure to keep the confidence of the non-classified nature of Plame’s headquarters employment.

    Journalists fare no better… The Left, including many journalists, cheered on Fitzpatrick when it looked as though Cheney and Rove were the ones to be gored, with Judith Miller a not-lamented sacrifice to be tossed on the pyre. When Fitzpatrick blundered ahead and obtained narratives from Cooper, Pincus, Gregory, Russert, Mitchell, and Woodward, among others, we found out that the Fourth Estate had been busily spinning on its own. Most notably, of course, is the peculiar figure of Richard Armitage, who should have been front-and-center in this “scandal” from the beginning–and was known by key players as the leaker Fitzpatrick was supposedly searching for, from the outset…

    Had an effective press shield law been in place before this bizarre story broke, I suspect that Citizens and Historians would still be largely in the dark as to the misdeeds of the various players, and as to the tawdry way that an ideological right-wing Administration, a time-serving intelligence bureaucracy, and an ideological left-wing Press collude to ‘get things done’ in Washington DC.

    In rooting for the appointment of a special prosecuter, the indignant Left (including much of the press) should have paid more heed to that aphorism, “be careful what you wish for, because you just might get it.” From my perspective, the sunlight that the Fitzpatrick investigation has shone into the Bush Administration and onto the practice of Belway journalism has benefited the public–even though all three institutions (prosecution, Administration, journalism) look worse as a result.

    Ending this digression, we now return you to qualified commentary on legal aspects of the case.

    AMac (d7a6a7)

  31. I don’t know if what I have posted previously was judged beside the point, or what.

    1. Even if Fitzgerald was correct in pursuing Libby, and even if correct in not charging anybody else with anything, I still think he was wrong to advance the idea that Libby was merely a small fish that got caught while the rest of the “administration conspiracy to discredit Wilson” avoided prosecution. If he was simply doing his prosecutorial duty to “not let people lie”, he could have made that point, at least to the press instead of feeding into the media’s favored version of reality.

    2. Knowing at least some who were on the jury and their views on interview after the case, did he have a fair trial before an impartial jury? If “The System” works correctly, there needs to be an impartial jury assessing whether the prosecutor proved his case beyond a reasonable doubt.- If Fitzgerald was taken to trial for jaywalking would he want a jury of 80%+ Republicans, some of whom think he was jaywalking because he was in a hurry to carry out his part of a bigger conspiracy to damage the administration?

    These issues could be addressed if we could file “journalistic malpractice” claims. If journalism is a profession, maybe they should be held accountable as professionals.

    MD in Philly (3d3f72)

  32. #10 cboldt

    Do you have a cite for [Armitage’s immunity]?

    No. I stand corrected.

    While searching for a cite I found an article in the NY Times of 1-30-07 by Neil Lewis that said:

    “Mr. Novak’s original source, Richard L. Armitage, a former deputy secretary of state, was not charged, as prosecutors said he did not have the needed intention to violate the law.”

    If you want the full article you will have to pay unless you are a subscriber.

    Stu707 (5b299c)

  33. Patterico:

    I just don’t think it’s that simple. You don’t know that Fitzgerald *knew* that absolutely no crime had been committed, for all the reasons that Beldar explained.

    That’s true.
    There are hints, though. In Fitzgerald’s post-trial press conference, he pointed out that unbeknownst to Libby, Russert had contradicted Libby’s story before Libby’s second interview with the FBI in November 2004. This had come out in court as well.

    However, that information was kept from Libby, who eventually repeated the incorrect information about his conversation with Russert to the Grand Jury and so faced criminal charges for obstruction of justice.

    It seems to me that if Fitzgerald was truly looking to solve a crime, he would have confronted Libby with Russert’s conflicting story. Perhaps he could then have gleaned better (or at least different!) information from Libby. Certainly not confronting him with the suspected lie didn’t move the investigation forward. That Fitzgerald never tried makes it appear that Fitzgerald was only ever going for obstruction.

    MayBee (eb1824)

  34. AMac,

    You wrote a great letter to the author/editor. Did they publish it?

    DRJ (863f9f)

  35. *** second interview with the FBI in November 2004 ****

    Should read that Russert spoke with the FBI before Libby’s second interview in November 2003. Sorry.

    MayBee (eb1824)

  36. Thanks for the comment, DRJ. At least one Sun editor put me on his spam filter, the others I’ve written to–infrequently, mind–ignore me in politer fashion. Doesn’t make me aspire to their Letters section. Author Taylor did write back; said he found Beldar’s posts interesting.

    AMac (d7a6a7)

  37. I don’t think your post hits the real complaint that most have against the trial, P.

    Fitz said Libby was fudging to the GJ. Very narrow. The reason for the trial, as he said, was to keep people from lying to Grand Juries.

    So the questions were did Libby intentionally lie to the Grand Jury? And did Fitz cover all the bases in verifying the evidence.

    The two complaints are that Fitz did not prove that Libby willfully lied and that he did not cover all the bases in verifying the evidence.

    It is that simple. Mistaking actions that are coincidental,accidental, or unintentional for intentional acts of criminality is wrong. (I certainly hope no prosecutor uses these techniques!) And not verifying any direct testimony that contradicts your proof or evidence is wrong also.

    These are the main complaints against Fitz.

    JJ (4d6776)

  38. — you might want to talk to Frank Cowles Jr, who had his reputation trashed and suffered financially due to a faulty indictment by Fitzgerald —
    .
    I composed a longer reply with cites, which either was eaten by a spam filter or had some bad HTML code in it. Here are the punch lines …
    .
    In short, I suggest circumspection about assigning Fitzgerald the role of villain in the Cowles case.
    .
    First, that while Cowles may have had no culpability in the investment scam, he did give false and misleading information to Sharon Vaughn. Absence of wire fraud charge could be for any of various reasons that I haven’t been able to ferret out. He may have been duped into helping Warren and Myatt, or he may have been culpable but left too little evidence to support going to trial. But the Secret Service has him on tape (Vaughn wore a wire) passing false and misleading information regarding her “investment.” I can see why the Secret Service had suspicions against Cowles, and named him in their complaint.
    .
    Second, the name “Fitzgerald” does not appear in the 24 page criminal complaint. Nor do I find a sign of his involvement in any of the pleadings in the docket sheets of Cowles, Myatt -or- Warren — with one exception. Fitzgerald’s name appears on the Motion to Dismiss.

    cboldt (a60d7f)

  39. This is the biggest non-story story.

    I have no arguments with Fitzgerald’s prosicutorial discression… I have problems with how he used it.

    Try prosecuting someone who acutally did something. The left is acting as if this is a conviction of the entire bush administration. Fitzy may not have been politically modivated, but many in the public and possibly some in the jury were.

    What a stupid waste of taxpayer money to investigate this whole plame thing and do nothing about the NYT and the LAT leaks… which by far harmed America more.

    BadBrad (eacf58)

  40. Beldar’s post is, indeed, a well-reasoned piece relating to Fitz’s motives and prosecutorial discretion. It convinced me that there was more to this than solely Fitz’s personal animosity toward Libby, likely regarding the Rich pardon — a position which, unfortunately, looked all-too-probable based on Fitz’s conduct on the overall case.

    Beldar has another great post here. In it, he relates a tale where a doctor knowingly, under oath, deliberately lied about something that was a key part of a case. Yet he says, “This particular lie wasn’t perjury, but it still turned out to have a dramatic effect on both juries’ damages verdict.” When I asked why this would not be perjury, he replied that it involved “a matter that wasn’t, in my judgment (nor likely in any prosecutor’s), sufficiently material to the purposes for which he’d been placed under oath in order to support a conviction for perjury.”

    Unfortunately, I am but a simple accountant, unfamiliar with the definition of materiality used here. I only know about materiality from things I read in accounting literature. In those situations, materiality is defined as “if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote.” I may have erred when I believed that you could substitute “juror” for “shareholder” and the same definition might apply.

    Now, Beldar’s answer focuses on materiality — but I suspect that he’s really thinking of intent, or mens rea. The phrase “purposes for which he’d been placed under oath” could be read to support this interpretation. Reflection on a world without intent provided the linchpin of my argument at Beldar’s:

    To my mind, much of the criticism from legally-aware individuals — who tend to see things in terms of “rules of the game” — addresses Fitz’s attempts to erase the last qualification that makes a lie into perjury: “is the person knowingly trying to thwart justice?” Your tale of the doctor’s case highlights the importance of “because he thought the lie just would not matter” in making that distinction.

    Further, as a matter of public policy, that distinction HAS to be made. People can be summoned to a grand jury, to give testimony under oath. If they believe that testimony may lead to their conviction, they may exercise their 5th amendment right to say nothing. But what if they cannot come to a reasonable decision as to what may or may not lead to their conviction?

    My contention is that the jury spent days deliberating over the various elements of the alleged crimes, but not the most central one…and the one that makes this case positively reek.

    It may well be true that all I know about criminal investigations, I’ve learned from “Law & Order” — but that show has the detectives visiting various people over and over trying to determine what actually happened. In every case (possibly to sustain the dramatic impact), some people tell the police things that are not completely accurate. But they talk to them nevertheless. Their personal, individual cost/benefit analysis says: “I value civic order, and I can blab anything I know or suspect, the police will sort it out, and it costs me nothing.”

    What would happen to civic life if this equation were changed? What if a rational analysis were: “I value civic order — but if I say anything that ends up being inaccurate, I’ll be prosecuted” …or only “….if I go beyond my solid recollections into things that I vaguely remember, I can be fired, spend zillions on legal fees, and face the prospect of jail time”? Were this to be the public’s understanding of the nature of perjury, I suspect that L&O could be a half-hour show with far fewer successful convictions.

    And that’s the beef — while Fitz may have been empowered to charge Libby, and have reasons to do so beyond the personal, I hold that his prosecution of Libby worked against the public interest. The situation is analogous to a SWAT team using automatic weapons — I do not question that they belong in the armory; there are [rare] circumstances where they may be appropriate in bringing down a truly “bad guy”; but when bystanders are wounded, and especially when there is no “bad guy”, there are obvious questions about abuse of process because the general public may now live in fear of the law. In other words, as I put it on Beldar’s blog:

    In my view, if the Libby verdict is sustained as a matter of law, the law is on a self-destructive path. If knowledge of the harmful effects of a statement isn’t one of the explicit factors of a perjury conviction, it needs to be. Finally, someone needs to address the issue of immunity in testimony….if someone is being asked about Mr. Smith’s murder in LA, they shouldn’t be worrying about their testimony creating a vice charge in Duluth — or, inevitably, nobody will cooperate with any investigations at all.

    Bonus question: it would seem that every convicted criminal defendant who pled “not guilty” could be held as guilty of perjury for lying under oath. Why isn’t this common practice?

    cthulhu (ccb965)


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