[Mb-civic] A former Prosecutor Considers Libby's Indictment
(TomGram)
William Swiggard
swiggard at comcast.net
Fri Oct 28 14:24:04 PDT 2005
Tomgram: De la Vega, a Prosecutor Considers Libby's Indictment
[Note to Tomdispatch Readers: Tomorrow, I'll be releasing on-line a
major piece by Elizabeth de la Vega, the cover story of the next Nation
magazine. It considers how to hold the Bush administration accountable
for fraud for taking us into the war in Iraq on false premises. So
consider the De la Vega piece below a teaser for tomorrow's foray into
Bush administration skullduggery.]
Implosion update <http://www.tomdispatch.com/index.mhtml?pid=31576>: And
so they fall: Tom DeLay just weeks back. Harriet Miers yesterday. I.
Lewis ("Scooter") Libby today. Prepare yourself. It's going to be a
long, hard dive into deep waters that should, sooner or later, lead us
back to the beginning. Think of Special Counsel Patrick Fitzgerald's
indictment of the Vice President's Chief of Staff as but a judicial
wade-in-the-water; and yet the charges against Libby already bring to
mind the cover-up charges that unraveled the Nixon White House during
the Watergate era. With this indictment, Americans begin their official
trip into the sordid history of the planning and selling of the invasion
and occupation of Iraq via a shadow government -- what Lawrence B.
Wilkerson, former chief of staff to Secretary of State Colin L. Powell,
recently called a "cabal,"
<http://www.latimes.com/news/opinion/commentary/la-oe-wilkerson25oct25,0,7455395.story?coll=la-news-comment-opinions>
set up out of Dick Cheney's office and Donald Rumsfeld's neocon-ridden
Pentagon.
If you want to bone up on this story, you might check out reporter Jim
Lobe's August Tomdispatch piece
<http://www.tomdispatch.com/index.mhtml?pid=9301> on the timing and
pattern of the Cheney-inspired propaganda for war, "a seamless,
boundary-less operation to persuade the American people that Saddam
Hussein represented an intolerable threat to their national security."
And don't forget <http://www.tomdispatch.com/index.mhtml?pid=2486> the
Downing Street Memos <http://www.tomdispatch.com/index.mhtml?pid=7114>
either, or those mysterious, crudely forged Niger uranium documents --
Laura Rozen <http://www.warandpiece.com/> is on the case (scroll down)
-- that led to the President's infamous 16 words in his 2003 State of
the Union address
<http://www.whitehouse.gov/news/releases/2003/01/20030128-19.html>. Now
we know as well that the FBI
<http://www.nytimes.com/2005/10/28/politics/28niger.html> (along with
the Italian press
<http://www.prospect.org/web/page.ww?section=root&name=ViewWeb&articleId=10506>)
continues to investigate those forgeries, including a mysterious
September 2002 meeting between Nicolo Pollari, chief of Italy's military
intelligence service (who evidently brought the forged documents
directly to the White House after they were rejected by the CIA) and
then Deputy National Security Adviser Stephen Hadley. Before we're done,
truth might find itself busting out all over. These days, even the New
York Times, freed from its imprisonment in Judy Miller's jail cell, has
been breaking front-page stories
<http://www.truthout.org/docs_2005/102505Z.shtml> worth reading on the
bum's rush to war this administration gave the American people and the
machinations that followed.
Not so long ago, "tipping points" were things that Washington officials
and top military commanders announced were about to happen or had just
happened in embattled Iraq. Now, the "tipping points" that never quite
tipped there seem to have made their way home. Already, as Thomas
DeFrank
<http://www.nydailynews.com/10-28-2005/news/story/359941p-306654c.html>,
Washington Bureau Chief for the New York Daily News, reports, "some of
Bush's most trusted advisers believe his political viability is
dangerously near a tipping point." Former federal prosecutor Elizabeth
de la Vega brings her experienced eye to bear on the breaking events of
today, putting them into perspective and suggesting what we should --
and should not -- expect as we await the Libby trial and as the
Fitzgerald investigation continues. Tom
Smoking Guns and Red Herrings
What Should We Expect Now that Fitzgerald Has Announced the
Indictment of Lewis "Scooter" Libby? By Elizabeth de la Vega
The Grand Jury supervised by U.S. Attorney Patrick Fitzgerald has
returned an indictment charging Vice President Dick Cheney's top
aide and reputed "alter-ego" I. Lewis "Scooter" Libby with perjury,
obstruction of justice, and false statements to the grand jury. But
this indictment does not end the story; rather, a close reading
suggests that these charges are most likely merely a chapter in a
long and tragic story. Here, from a former federal prosecutor, are
thoughts about four things we should expect, four things we
shouldn't, and one question we should all be asking.
We should not expect a final resolution any time soon. Complex cases
usually take years to proceed through the courts. In addition, the
indictment released today describes a chronology of close to two
years and a complicated set of facts. Obviously, Fitzgerald is
taking a "big picture" approach to this case. This mirrors his
approach to previous cases. In December 2003, for example,
Fitzgerald announced the indictment of former Illinois Governor
George Ryan on corruption charges in Operation Safe Road, which
began in 1998. In that year, the investigation of a fatal accident
revealed that truckers were purchasing commercial licenses from
state officials. Indictments were announced in stages, culminating
in the indictment of Ryan, who was the 66th defendant in the case.
In the Libby case, the allegations suggest he was merely one of many
officials -- including an unnamed Under Secretary of State and
"Official A," a Senior White House Official -- who were involved in
revealing classified information about Joseph Wilson's wife Valerie
Plame. No other individuals are named as defendants, and they should
not be considered so at this point, but the complexity of the
indictment suggests that the investigation may follow a pattern
similar to that used by Fitzgerald in the Illinois corruption case.
We should not expect to hear much more from Fitzgerald. The Special
Counsel has been widely admired, and sometimes criticized, for his
"tight-lipped" approach and "leak-free" grand jury investigation.
But that, folks, is how it's supposed to be. Federal prosecutors are
required to maintain grand jury secrecy. If they don't do that, they
not only jeopardize their investigations, they could lose their jobs
and/or be charged with a crime. The public has come to expect leaks
from grand jury investigations because Independent Counsel Kenneth
Starr, who was not a federal prosecutor, ignored secrecy rules
during the investigation of President Clinton (and got away with
it). Even after indictment, Department of Justice (DOJ) press
guidelines permit release of only limited facts about the defendant,
the charges against him, and court documents or testimony that may
become public during the prosecution. Don't hold your breath waiting
for Fitzgerald to explain evidence not alleged in the indictment;
nor will he appear on talk shows to debate defense representatives.
We should not expect a smoking gun. Even when there actually is a
gun, there's hardly ever a smoking gun. In the case against Libby,
as in most white-collar crime cases, the evidence is likely to
consist mainly of documents, thousands of them. And considering that
the weapon employed in this crime appears to be a telephone, the
closest thing to a smoking gun may well be telephone records.
We should not expect the President to take steps to "get to the
bottom of this." He professed that desire in October 2003, but
belied it in the next breath, saying he "had no idea who the leaker
was and didn't know if we'd ever find out. "There's a lot of senior
officials [out there]," he commented. "You tell me," he asked a
group of reporters, "how many sources have you had that's leaked
information, that you've exposed, or had been exposed? Probably
none." Of course, assuming Bush didn't already know who the leakers
were, all he had to do was make darned sure his aides told him.
After all, organizations routinely conduct internal probes in
parallel with criminal investigations. Indeed, the U.S. Sentencing
Guidelines consider such inquiries to strongly indicate corporate
acceptance of responsibility. But accepting responsibility for the
CIA leak would have put quite a damper on the Bush reelection
campaign. So, with his usual Janus-like approach to every threat,
the President managed to declare himself above such petty politics
while allowing surrogates to spread disinformation. In other words,
the administration has attempted to derail the prosecution in
precisely the same way it tried to derail ex-ambassador Joseph
Wilson's credibility in the first place.
We should expect red herrings from the defense (even if not smoking
guns from the prosecution). Fox hunters once tossed smoked red
herrings out to test whether their dogs could stay on the right
trail. Now, of course, the term means a distraction from the real
issue; and if the Republican Talking Points rolled out thus far are
any indication, we are going to be tripping over red herrings galore
in the upcoming months.
We should expect more attacks on Joseph Wilson, even though they
represent a very large red herring (more the size of a mackerel).
These will be meant only for the court of public opinion. Since the
White House has already admitted, repeatedly, that it had
insufficient evidence to mention that Saddam Hussein was seeking
Niger "yellowcake" uranium in the President's State of the Union
address in 2003, claims that Wilson went to Niger on a boondoggle or
that he is merely a partisan critic (both of which appear to be
untrue) have never been the least bit relevant. If you don't dispute
the essence of the testimony of a witness, then undermining his
credibility is pointless in a court of law.
We should expect another red herring, one that should have been
thrown back in the river long ago: that perjury, obstruction of
justice, and false statements charges are not "substantive," and so
somehow less serious. "Substantive" is a legal term, referring to a
crime that can be proved without reference to the elements of
another crime. For example, bank robbery is a "substantive crime"
and conspiracy to commit bank robbery is not. (But they're both
crimes.) Perjury, obstruction of justice, and false statements may
arise out of the investigation of other crimes, but they stand on
their own. So they too are "substantive" crimes. More to the point,
as Patrick Fitzgerald eloquently explained in his press conference,
lying in an investigation is extraordinarily serious, because it
undermines the integrity of the process.
We should expect attempts by pundits to derive "meaning" from the
absence of charges under the Intelligence Identities Protection Act
or the Espionage Act. Reasons for the absence of such charges can
range from insufficient evidence to concerns about the Classified
Information Procedures Act, which governs the use of classified
information in a criminal case. No one other than Fitzgerald, his
staff, and the grand jury knows why certain charges were not brought
and they will never be able to explain their decisions.
We should expect a campaign to demonize Fitzgerald through claims
that he is overzealous and has exceeded his authority. Such attacks
are legally irrelevant, but more important, they're wrong.
Fitzgerald's original mandate, contained in a letter from Deputy
Attorney General James Comey, was to investigate all crimes arising
from the outing of Valerie Plame. Out of an apparent abundance of
caution, Fitzgerald requested clarification of the term "all" and
was advised, again by Comey, that it included both underlying crimes
and crimes that stemmed from the investigation of the underlying
crimes. At no time did Fitzgerald seek, or receive, an expansion of
his authority: it was there all along, as it would be in any
investigation of federal crimes.
We should also expect pundits to argue that this prosecution is
political. That is the most despicable of red herrings considering
that Fitzgerald has been a career prosecutor forbidden by the Hatch
Act to participate in politics for twenty years, is registered
without political affiliation, and was appointed by a Republican.
Also, the resulting indictments were returned by grand jurors who
heard evidence for two years, after which a majority, at least 12
out of 23, decided that there was probable cause to believe -- in
other words, it was "more likely than not" -- that the defendant had
committed all the elements of the crimes charged. In other words, in
investigating and returning an indictment against the Vice
President's Chief of Staff, Patrick Fitzgerald and the grand jury
have followed one of the most basic principles of criminal
jurisprudence: that the law is no respecter of persons, that all
persons stand equal before it. It would have been the most flagrant
violation of the rule of law if the prosecutor and grand jury had
walked away from Lewis Libby's deliberate deceptions simply because
he was an important government official.
But should we expect, given the Republicans' attempts to belittle
and politicize the case thus far, that President Bush will pardon
his senior administration official if Libby is convicted on these
serious charges? The 1992 Christmas Eve pardons of Iran/contra
defendants by former President George Bush Sr. provide cause for
concern. Let us hope that the current President Bush will not
undermine the rule of law in this way.
Elizabeth de la Vega has recently retired after serving more than 20
years as a federal prosecutor in Minneapolis and San Jose. During
her tenure, she was a member of the Organized Crime Strike Force and
Chief of the San Jose Branch of the U.S. Attorney's Office for the
Northern District of California.
Copyright 2005 Elizabeth de la Vega
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