Patterico's Pontifications

6/26/2007

Beldar on Nifong, Fitzgerald, and Libby’s Chances for Remaining Free Pending Appeal

Filed under: General — Patterico @ 6:04 am

Beldar rips Dorothy Rabinowitz for comparing Nifong to Patrick Fitzgerald. At the same time, he predicts that the appellate court will free Libby pending his appeal, because of the issue relating to the manner of Fitzgerald’s appointment. Both posts are worth reading in their entirety.

Comments (28)

28 Responses to “Beldar on Nifong, Fitzgerald, and Libby’s Chances for Remaining Free Pending Appeal”

At least Paris is out! 😉
Kevin Murphy (0b2493) — 6/26/2007 @ 6:50 am
She didn’t wear her seatbelt. Send her back!!

ManlyDad (22e85d) — 6/26/2007 @ 8:21 am
“In fact, Mr. Libby was the first official known to have told a reporter when he talked to [former New York Times reporter] Judith Miller in June of 2003 about Valerie Wilson.” — Patrick Nifong-Fitzgerald, October 28, 2005.

We now know that in fact Armitage was the first, and that Nifong-Fitzgerald knew that in 2003, but lied about it in 2005.
Vatar (bb1678) — 6/26/2007 @ 2:06 pm
“…Nifong-Fitzgerald knew that in 2003, but lied about it in 2005.”

But of course, a lie was a proper action since he was trying to stop the destruction of democracy as we know it.

Or, it was a strategic gambit to smoke out Libby, and his Neo-Con conspirators.

Or, he is the snake that he is; and, may he eternally rest in Hell!
Another Drew (8018ee) — 6/26/2007 @ 4:08 pm
If Bush&Cheney’s people could be competent on the immigration and spending problems, I might feel a little sympathy his guys like Libby stuck in trouble, and be more eager to voice support for Bush’s Middle East plan, which I think is necessary.

What a bunch of idiots Bush has assembled. Sure, we should all just look at the facts in the Libby thing. Well I don’t feel like it. Bush doesn’t deserve it.
Wesson (f09249) — 6/26/2007 @ 6:18 pm
If the FBI had already determined Libby committed perjury before Fitzgerald was appointed, and if Fitzgerald knew all along that (1) there was no applicable crime and (2) even if there had been he would have had to have been pursuing Armitage for it…then what the hell was he doing wasting taxpayer money the next several years? With Libby already caught and no others left to catch, what, exactly, was he doing?
Gregg Calkins (fdd559) — 6/26/2007 @ 7:32 pm
Further…if Libby had already been determined by the FBI to be guilty of perjury, why didn’t they just go ahead and prosecute him? Why turn it over to a special prosecutor charged with finding a very different crime than perjury? This whole story simply doesn’t pass the smell test.
Gregg Calkins (fdd559) — 6/26/2007 @ 7:39 pm
The people who are down on Fitzgerald on this seem to think that a prosecutor should also be judge and jury. Forgetting that it was a judge and jury, not Fitzgerald, who passed judgment on Libby. Some lawyers (and prosecutors are lawyers) think that they should do what the law says they should do. So if one law says that lying to the FBI and the grand jury is a crime, and another law says that crimes should be a prosecuted, and a third law says that lawyers should do their job zealously, that’s what they do. Now I like a law like we have in Illinois where a person can purge himself of perjury if he eventually tells the truth before the close of the proceeding. But I don’t believe there is such a federal law and no evidence that Libby took the opportunity to do that in any case as Beldar points out.

Fitzgerald has a sterling reputation in Illinois. He has been putting thieves, Republican and Democrat, away. He is in the process of taking out Barack Hussein Obama’s main money man. If anybody ever thought that he would violate the law and his oath of office to protect the Administration when they appointed him special prosecutor they must have been smoking locoweed.
nk (bcdf9b) — 6/26/2007 @ 8:39 pm
I’m not sure what the future will bring for convicted felon Scooter Libby, but this howler from Beldar: “…and the Wall Street Journal’s reputation for basic factual accuracy” alone made the read worthwhile.
alphie (015011) — 6/26/2007 @ 10:01 pm
…if Libby had already been determined by the FBI to be guilty of perjury

This is a new talking point, and one that does not add up. How could Libby have committed perjury before Fitzgerald was appointed, when Fitzgerald convened the Grand Jury? Libby may have lied to the FBI, and obstructed justice thereby, but that is not the same thing as perjury. If there was some sort of false affidavit that would still be a much less grave crime than systematically lying to the grand jury.

As to what Fitzgerald thought he was looking for, I think it is obvious he was looking for a conspiracy. Sure you had Armitage admitting his disclosing the name, but it is proper for a prosecutor to inquire whether this was a coordinated effort to break the law. Whether the law was too narrow to fit the fact pattern can not be determined until after the investigation determines the facts.

We still do not know for certain whether there was a conspiracy here due to Libby’s obstruction and perjury. It sure looks like Cheney was behind a conspiracy to violate the law, but Libby, to this day, is not cooperating. Off to the clink, scooter!

Was there a underlying crime? Sure. The CIA is pretty sure there was, and they are the ones who know about Plame’s overseas assignments. Has a court clarified whether or not being sent overseas is the same thing as being posted there, or whatever Toensig’s rather tortured post hoc analysis was based on? No. But Libby is entitled to pursue that argument in his defense, and he does not lack top-quality attorneys to present such an argument.
Xenos (a0c9ab) — 6/27/2007 @ 3:22 am
So no one is denying that Fitzgerald lied to the public @3? How is that any different than what Nifong did?

The real story is how many grand juries Fitzgerald asked to indict for the leak, despite the fact that he knew it was actually Armitage who did it. But that is not a matter of public record.
Vatar (bbc421) — 6/27/2007 @ 7:14 am
Vater (#11): The quote in #3 above from Fitzgerald’s lengthy press conference when Libby’s indictment was returned on October 28, 2005, is accurate; the transcript is here and a RealPlayer video is here, so there’s no doubt what Fitzgerald actually said.

I’m still wrestling with the background evidence and other facts, putting together a longer follow-up post on my own blog, but I think I accept that there’s compelling proof that this statement was wrong, and that, at a minimum, there are compelling arguments that Fitzgerald either knew, or at least should have known, that it was wrong. It’s also the single most persuasive attack on Fitzgerald’s statements or conduct that I’ve seen (although when and if I do the longer post on my blog, I’ll discuss some others as well).

I’m less convinced that this 2005 press conference statement was a deliberate lie, as opposed to a mistake. He shouldn’t have made it, either intentionally or unintentionally. If it was a mistake, and if someone brought it to Fitzgerald’s attention, then he probably ought to have corrected it.

But the statement wasn’t also in the indictment, and it wasn’t something that the prosecution had to prove, or that the defense had to disprove, as part of Libby’s prosecution for perjury. “Who leaked first?” was a key question in the original investigation and remains so in the public controversy over L’Affair Plame, but it wasn’t an essential element — or any kind of element — of the indictment or the trial.

Whether (negligently) innocent or more culpable than that, it’s a one-line statement from an hour-long press conference — not something central to the prosecution or conviction that actually went forward. It wasn’t repeated to the press; it wasn’t re-asserted at trial. And it didn’t become the basis for any real harm to Libby or his defense. At worst, it misled the public, for a time, about a surrounding contextual fact — one that the public was keenly interested in, but one that was no longer central to anything Fitzgerald or the Libby defense team were grappling with.

And I don’t think that kind of one-off misstatement, even if improper when put under the microscope, can fairly be compared to the sort of deliberate suppression of critical exculpatory evidence, or misrepresentations about critical evidence of guilt, that Nifong engaged in. Nifong was playing fast and loose with the guts of the case as it actually would have been tried. What he messed with went to guilt or innocence. Fitzgerald’s statement didn’t. And Nifong’s misconduct was far more obviously intentional, and extended to far more than just one sentence in a single press conference.

I’m not saying that Fitzgerald behaved perfectly at all times and in every respect. But that’s surely not the standard we can hold any prosecutor to, and it’s surely not true that every prosecutor who’s ever made one incorrect statement at a press conference is ethically or morally or legally as culpable as Nifong.
Beldar (a498cf) — 6/27/2007 @ 10:43 am
I need to correct one thing from that last comment: Fitz did repeat the “first” remark at least one more time in the course of the hour-long 2005 press conference. (Apologies, I ought to have re-read the entire thing before commenting.)
Beldar (a498cf) — 6/27/2007 @ 11:07 am
He made that statement without (a) revealing that Miller’s notes revealed prior sources on Plame;(b)without ever apparently asking Armitage if he told anyone else beside Novak(c)without even seeking Armitage’s calendar which revealed the talk with Woodward,(d)without ever getting from DoJ or the CIA’s counsel an opinion that Plame was covered by the IIPA and if she wasn’t (and she wasn’t from my reading of the Statute), the entire matter was frivolous.

A thorough look at the investigation indicates he was only cherry picking for anything to support his pre-ordained conclusion and not to determine who, in fact, leaked Plame’s identity or whether any law would have been broken if someone did.
clarice (c49871) — 6/27/2007 @ 11:19 am
And that was only one such misstatement in the indictment presser.

Then there are the lies in the post-conviction presser so well documented here by Tom Maguire:

http://justoneminute.typepad.com/main/2007/03/fitzgeralds_fut.html
clarice (c49871) — 6/27/2007 @ 11:25 am
We don’t know if he told the same line to the grand jury or not because their proceedings are not public record. Given the timing, right after he got the indictment, wouldn’t the assumption be that was the story he was giving the grand jury all along?

Also, making false statements in a press release could be considered obstruction of justice, whether he was under oath at the time or not.
Vatar (bbc421) — 6/27/2007 @ 12:20 pm
Vatar, in fact, such is among the charges that got Nifong disbarred.
Robin Roberts (6c18fd) — 6/27/2007 @ 12:43 pm
It has been well established that Phlame wasn’t a secret operativeand therefor there was no crime regarding her identity. That Fitzgerald continued his case after he knew who had leaked the Phlame information only causes objective people to ask what was his purpose? Why wasn’t Armitage charged but as we all know there isn’t any basis if Phlame wasn’t secret. Then what was Fitzgerald doing except conducting a hugely expensive fishing expeditionon for the DNC?

That the Bush administration yielded to a special prosecutor only indicates how addled they remain/overconfident.

But for American society the increased evidence of the breakdown in the judicial system whether it be 60 million pants; the railroading of border patrol agents or the thrashing of the Constitution
by our courts the horizons for equality and objectivity before the law becomes a low joke.
Thomas Jackson (bf83e0) — 6/27/2007 @ 1:03 pm
nk–I have been reading the Steyn blogs on the Conrad Black trial and have been struck by the comparisons. For example, the govt’s chief witness, Radler is the only person who obviously broke the law and he has been thoroughtly discredited–so discredited that at closing the prosecution suggested the jury could just ignore his testimony.

The prosecution made a great deal of the non-compete agreements but these contracts are standard in the industry; were clearly brought to the attention of the Board which approved them and were used because of the tax advantages IN CANADA to a CANADIAN company.
Black is being accused of conspiracy to obstruct by removing records from his office but he had already given all those records to the SEC and was aware of no other pending or planned action respecting them.

Some grownup ought to take a closer look at the way he operates and Congress and the Courts had better limit the terms of the obstruction statute unless it is the intent of the Congress to allow prosecutors to convict for obstruction everytime they can’t like you know actually prove their case against someone. (The SCOTUS in Arthur Anderson seems to have caught on to this fandango BTW.)
clarice (c49871) — 6/27/2007 @ 2:49 pm
Comparing Nifong and Fitzgerald is an insult to the integrity and character of Nifong.
Watchman (1f5458) — 6/27/2007 @ 5:23 pm
Vatar (#16) and Robin (#17): The misstatement by Fitzgerald wasn’t a “press release.” It was an extemporaneous remark, made twice during the course of an hour-long press conference. We do know what happened in the grand jury when Libby was testifying, Vatar. But Fitzgerald isn’t a witness, he has no personal knowledge of the underlying events, and he gave no testimony to the grand jury. The indictments they returned didn’t depend on, or even allege, that Libby was the first leaker.

It’s pretty hard to imagine how, since Fitzgerald was the one running the prosecution, his own misstatement at the press conference obstructed the investigation or the prosecution. Whether Libby was the first leaker, or the only leaker, had nothing to do with the substance of the charges against Libby, nor with Libby’s defense.

If Nifong is charged or convicted of obstruction of justice, that won’t be based solely, or primarily, on something he said at one of his press conferences. Prosecutors don’t have duties to make disclosures at press conferences. They do, however, have duties to comply with court orders and with procedural rules and statutes and case precedents on, for example, releasing potentially exculpatory evidence — like the DNA test reports that Nifong suppressed for weeks — to the defense team.

And some of you folks seem to be under the impression that a prosecutor has an ongoing obligation to basically continually air out everything he knows, suspects, or thinks — all of the time. That’s exactly the opposite of the real world situation, and you’d best be glad of it if you value civil liberties at all. Prosecutors, by and large, are supposed to do their talking via indictments and then via their statements in court as part of the process of trying to prove the crimes so indicted. This particular statement — that Libby was the first government official who leaked — was an occasion of Fiztgerald doing what he said in the press conference that he was trying not to do, i.e., going “outside the four corners of the indictment.” Sure enough, when he did so, he screwed up. But that’s far from showing he did so intentionally, and it’s far from showing that this misstatement had any substantive impact on anyone.
Beldar (a498cf) — 6/27/2007 @ 5:32 pm
It was an extemporaneous remark
He read it from a prepared statement. Its not like it was a slip of the tongue.
he gave no testimony to the grand jury.
You have no idea what he said to the grand jury, because there is no transcript. He testified that Plame was a covert agent during the sentencing phase of the trial, something that he fought vigorously to keep out of the trial in any other phase where it would have been subject to cross examination. Who says he didn’t do the same with the grand jury?
It’s pretty hard to imagine how, since Fitzgerald was the one running the prosecution, his own misstatement at the press conference obstructed the investigation or the prosecution.
It was a very calculated move intended to influence a potential jury pool. That is obstruction of justice.
Prosecutors don’t have duties to make disclosures at press conferences.
It isn’t what they have a duty to do, it is what they have a duty not to do. They have a duty not to spread lies that they know to be false in press conferences.
And some of you folks seem to be under the impression that a prosecutor has an ongoing obligation to basically continually air out everything he knows, suspects, or thinks — all of the time.
Again, see above. Not telling the full truth is not the same as intentionally releasing information to the press and public that you know to be false.
But that’s far from showing he did so intentionally
Fitzgerald knew Libby was not the first in 2003. When he said in 2005 that Libby was the first, I don’t see how you could say it was not intentional. Perhaps Fitzgerald could say it slipped his mind. That isn’t an argument that worked very well for Libby.
Vatar (085be7) — 6/27/2007 @ 5:45 pm
Beldar,

I’m not a Fitzgerald-hater. He is reputed to be an ethical, accomplished and professional lawyer, and I believe he is. However, his statements in the Plame investigation came across as politicized at times, and this discussion highlights one of those times.

During the course of his investigation, it seemed like Fitzgerald tried – intentionally or not – to paint Libby as a bigger fish in the Plame affair than he really was. That is troublesome because, as we later learned, Fitzgerald knew early on that Libby wasn’t the originator of the leak. Nevetheless, Fitzgerald seemed content and perhaps even eager to let people think otherwise.

Prosecutors aren’t supposed to play to the public but special prosecutors can and perhaps should, due to the public interests involved. Fitzgerald’s misstatements always hurt Libby and helped Armitage, and that strikes me as strange precisely because Fitzgerald is several notches above the average lawyer. To put it simply, Fitzgerald’s reputation as a professional makes me wonder if his misstatements were intentional.
DRJ (31d948) — 6/27/2007 @ 5:47 pm
It is interesting to find Robert Bork and Alan Derschewitz on the same side re Libby’s appeal.

Also, how much did Libby’s work for Mark Rich animate Fitzgerald’s pursuit of a conviction? Also, the phone call by Miller to alert a group that the USAtty in NY was investigating: How much did that effect her role in this investigation?

When the history of this case is written, Fitz’s actions might take on an entirely different light.
Another Drew (8018ee) — 6/27/2007 @ 6:16 pm
I agree with Clarice about the Conrad Black trial. It is a total travesty that should forever tar Fitzgerald’s professional reputation. In my opinion, it is every bit as disgusting as the Duke LaCrosse hoax. The Black prosecution just happens to be more intelligent than Nifong.

Fitzgerald is a Benthamite. The argument that he “gave every chance” to Libby to come clean makes no sense to me. That’s gamesmanship. It’s fodder for a law review level bull session.

This is a man’s liberty at stake–not a bull session. What did he obstruct? There was no underlying crime and Fitzgerald knew it.

I prefer that crimes have actual victims before we start putting people in prison for them. The laws against bearing false witness came about because actual people were in danger of being punished or losing well-deserved restitution because of a liar.

Who was Libby’s victim?
Jerri Lynn Ward (9f83e6) — 6/27/2007 @ 6:31 pm
Clarice #19,

The best I can do is rephrase what I said in my previous comment. We have an adversarial system. The prosecutor is a lawyer whose client is society. A lawyer must do the utmost on behalf of his client. Overzealousness in the representation of his client is the most forgivable of a lawyer’s sins.
nk (fa5529) — 6/27/2007 @ 6:32 pm
Is a prosecutor’s job to seek a conviction? Or to seek justice?
Vatar (085be7) — 6/28/2007 @ 5:31 am
On Libby’s sentence enhancement based on unproved crimes…

It’s now a moot issue, and I’m far from an expert on sentencing. Given the commutation of Libby’s sentence, I now no longer intend to do the sort of research and preparation that I had planned for this post. But I do want to write briefly (by my war…
BeldarBlog (72c8fd) — 7/3/2007 @ 2:22 am

6/26/2007

Beldar on Nifong, Fitzgerald, and Libby’s Chances for Remaining Free Pending Appeal

28 Responses to “Beldar on Nifong, Fitzgerald, and Libby’s Chances for Remaining Free Pending Appeal”

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