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