Patterico's Pontifications


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.

Patterico Accused of “Hypocirsy” (UPDATE: Accusation Deleted)

Filed under: General — Patterico @ 9:10 pm

An occasional commenter named Duke, who blogs at Oraculations, has a post titled HYPOCIRSY, THEY NAME IS PATTERICO:

Another phony big shot posing as the defender of free speech, the arbiter of free speech etc., has deleted my comment critical of a post of his, a post that is admittedly phony. He admits he has posted an “edited” hit piece on Chris Matthews, one which makes Matthews look drunk and stupid. Who would do such a thing? Coulter? Limbaugh? Hannity? No. It’s Patterico, the holy one. Why? Because Matthews doesn’t say things Patterico likes. Those of us on the Right who preach free speech, honest debate, and integrity lose another round. The piece on Matthews borders on slander, but because the sacred Patterico is a lawyer, one can assume that he has stayed on the legal side of that disgraceful hit piece. My critical comment, and we can presume all others critical of Patterico’s disgraceful “Hitler Dancing in Paris” edited video, have been blocked.

I’m a “big shot”?

There is a simple explanation for what happened — as I could have told Duke, if he had just asked. Duke’s comment was caught in my spam filter — for what reason, I do not know. I hadn’t put it there. Regular readers know that it is not uncommon for legitimate comments to get caught in my overzealous spam filter. I rescued Duke’s comment from the filter and published it (you can read it here), and left a comment on Duke’s site at around 6 p.m. yesterday, explaining what had happened. I suggested that the next time he thought one of his comments had been deleted, he might try a polite e-mail rather than a screechy blog post.

It has now been well over 24 hours since I left my comment at Duke’s site — and despite his advocacy of free speech and open comments, my comment there has not been approved.

Oh, the hypocirsy!

P.S. Duke’s claim that my post is “slander” is utterly ridiculous. The post opens with this line: “Via Allah comes this video, which uses video editing software to make Chris Matthews appear drunk on the air.”

Does Duke have even the first clue what constitutes slander — (or libel, for that matter, since my post is in written form)? The holy Patterico says “no.”

UPDATE: Duke has deleted the post, and e-mails to say that he didn’t see my comment for technical reasons. Same problem regarding my e-mail address. Fair enough.

It’s still a ludicrous criticism of my post — but that’s fine. I get plenty of those.

Libby Again

Filed under: General — Patterico @ 2:25 pm

Clarice Feldman (whom I really like, by the way — and whose son used to live two doors down from me!) lectures me about my posts on the Libby trial in this comment: “Dear Patterico, until you have read the entire record, how dare you smugly say he lied?” She concludes equally harshly: “Until you know what you’re talking about cut the sanctimonious nonsense.” Other commenters have also been piling on, accusing me of being part of a prosecutorial fraternity that never criticizes its own. Many repeat the charge of smugness.

As I admitted in my original post on the verdict, I haven’t followed this case terribly closely — certainly not as closely as Clarice or Tom have. Then again, I’m not completely ignorant about it. I think I have a basic idea of the prosecution’s assertions, and the defense’s points.

My basic feeling is that Libby’s story is utterly implausible. There are things you forget, and things you don’t. Under the circumstances, I don’t believe that Libby learned about Plame, forgot about it, remembered it again, but forgot that he had forgotten. That scenario contradicts the testimony of something like nine other witnesses. While they may have had some memory problems of their own, their memories all contradicted Libby’s in significant ways.

I am happy to carry on the discussion, and I promise to do so with an open mind. I very much dislike Joe Wilson, and I hate to see him profiting in fame and respectability based upon public misunderstanding of this verdict.

In the spirit of discussion, let me explore a few issues with you.


Should Libby Have Been Prosecuted Even Though There Was No Underlying Crime? Beldar Responds to Maguire

Filed under: Crime,General,Politics — Patterico @ 12:00 pm

Tom Maguire left a comment on my site recently with a hypothetical relevant to the Libby trial:

[I]f I may be indulged for a moment, let me pose a legal question in the form of a short story:

A controversial University Dean is found dead in the cafeteria; because the Dean had been in good health, poisoning is immediately suspected as the cause of death (OK, a bit far-fetched, but work with me).

The Science Dept. Chair, Prof. Jones, is a suspect – he has access to weird chemicals *and* had been leading a faculty revolt against the Dean.

But Prof. Jones, in grand jury testimony, offers an alibi – he was in Atlantic City all weekend, five hundred miles away.

Well. One fine day, two reports reach the prosecutor’s desk:

(a) Prof. Jones lied – he was, in fact, in town meeting with a group of trustees to plot the overthrow of the Dean.

(b) the medical examiner’s report is unambiguous – death from natural causes due to a rare, previously unnoticed heart condition.

SO – does the prosecutor file perjury charges against Prof. Jones?

YES: Jones lied during a good-faith murder investigation.

NO: Are you kidding – there was no crime!?!

The parallels to the Libby case may (or may not) be obvious, but I am curious to see what folks think.

OK, I am curious to see what I think, too.

I began drafting a post last night in which I would answer the question with an unqualified “yes.” I understood the question to be about prosecutorial discretion, and there’s no question that I would exercise that discretion to prosecute the professor, assuming that the evidence was sufficient to prove the perjury case beyond a reasonable doubt.

I intended to expound on this at some length. But Beldar beat me to it, and I thank him for saving me the effort. He covers both the issues of materiality (which I also meant to address in my post) as well as prosecutorial discretion. He says to Maguire:

Your hypothetical is particularly effective for people trying to understand the Libby situation because it strips the political confusion away that covers that case.


Beldar’s responses were set forth in comments here, but he has reproduced his responses in a clear and coherent fashion in an excellent post at his own site. Go read his response at this link.

The hypothetical is relevant because Libby was prosecuted in part for statements that he made before Fitzgerald was appointed — a subtlety that some of you seem to ignore. Libby spoke to the FBI in October and November 2003. Fitzgerald was appointed on December 30, 2003. In getting to the bottom of the unauthorized leak, Fitzgerald would naturally want to look at the truth or falsity of the statements that major players had made to the FBI. Libby’s statements — especially the ones concerning his conversation with Russert — turned out to be implausible, when viewed in the light of testimony from numerous other witnesses.

As Fitzgerald pursued that investigation, Libby made other false statements in front of the grand jury. I don’t consider that to be Fitzgerald “ruining Libby’s life” — I consider it to be Libby compounding his original error, while Fitzgerald pursued a thorough investigation that included crimes already committed before he was ever appointed.

Beldar notes that real life is not as simple as Maguire’s “nice, clean hypothetical.” But the answer to Maguire’s “nice, clean hypothetical” is indeed an easy one.

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