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Friday, October 28, 2005

Initial Thoughts on Fitzgerald's Decisions

Based on his press conference and the indictments, which I've now read, my first thought about Fitzgerald is that he is an American hero in a time that is far too short of them.

Personally, I would love to know everything that Fitz and the GJ found out, and all the things that evidently gave them pause about charging more (at this time, anyway). But as Fitz pointed out, it would be against the law for him to tell us. The contrast with the sieve-like conduct of Ken Starr's operation could not be more stark.

Moreover, it's pretty clear from the indictment that all of the substantive---as opposed to provable-in-court---elements on which WH critics on this matter have harped were in fact present: Libby, Cheney, Bolton [ed note: my suggestion that the indictment points to a Bolton connection appears to be wrong, based on reports that it was Marc Grossman, who I believe is a Bolton critic, rather than Bolton, who was referenced], Rove -- some or all of these people, and possibly more, went after Joe Wilson in the most dishonorable, unpatriotic and cowardly of ways. They leaked information they surely knew was either sensitive or---as it in fact was---classified to reporters in a campaign of lies meant to distract the public from Joe Wilson's underlying claims, all of which were basically true. They did so with no regard, and possibly with disregard, for the security consequences to Valerie Wilson, her co-workers or the Nation.

Now, as to the charges against Libby themselves: these are clearly serious allegations. They're serious partly on the obvious process grounds. But watching the press conference and reading the indictment makes it clear that they were substantively important, as well. As Dan Abrams just said on MSNBC, violations of the IIPA statute (and also the relevant part of the Espionage Act) require knowing behavior. And as Don Rumsfeld might say, it is impossible to know what Scooter Libby knew if he lies about what he knew. So in this case, the crime of obstruction has to do with conduct that limits the prosecutor's ability to address precisely the underlying knowledge on which an appropriate decision to charge Libby (or others) under those statutes would turn. Thus it's pretty clear that Fitzgerald's decision not to charge under those statutes reflects an inability to assess with the relevant degree of certainty whether Libby or others in fact possessed the relevant knowledge and intent. If you doubt this view, consider Fitzgerald's appellate filing regarding compulsion of testimony by Cooper and Miller, and consider the statements of the panel of three judges, all of which refer to crimes.

This is another reason why I think Fitzgerald is a hero: whatever his gut feeling is, he is not charging just to charge, or to try to vindicate the length and depth of his investigation. He said over and over that his responsibility is not to charge when he doesn't have the relevant degree of certainty. Unlike---just to pick an example---Ken Starr, this is not a prosecutor searching for a crime. He's a prosecutor searching not only for the truth, but for the right way to behave once he's found it. Fitzgerald repeatedly declined opportunities to pass judgment on the dishonesty of the Administration's case for war, and for good reason: That's not his job.

Regarding Rove, based on Fitzgerald's wording ("not quite done") and the expiration of the current GJ, it seems relatively unlikely---though certainly not definite---that he'll be charged. That said, it is 100% clear that Rove's behavior regarding the Wilson's was dishonest, disreputable and unworthy of an Administration that came to Washington promising to "change the tone" and "bring honor and dignity back to the WH". Even if he is not charged---whether or not his conduct was in fact criminal----his behavior has been both reprehensible and altogether too characteristic of a career based on lies and smears. Tempted as I am to say that in that way he couldn't be more worthy of being George W. Bush's right-hand man, in the end he couldn't be less worthy of the public trust that has been so indefensibly vested in him.

I'll have more to say about all of this, including (for example) the issue of compelling Cooper's and Miller's testimony, in the future.

In the meantime, kudos to Pat Fitzgerald for showing America that prosecutors not only have an obligation to behave both aggressively and conservatively in appropriate measures, but also that they can live up to that obligation. Even in such a politically charged atmosphere, and even when their potential targets are so obviously lining them up for a campaign of (cowardly anonymous) public smears.

Update: Josh Marshall has remarks from Cheney up. Note this one:
Scooter Libby is one of the most capable and talented individuals I have ever known. He has given many years of his life to public service and has served our nation tirelessly and with great distinction.
Let me point out that Cheney makes no statement whatever questioning Scooter Libby's behavior. Not surprising, given that Cheney's own role in this saga is detailed in the indictment and appears to contradict his own and the WH's official statements. But let me just point out that Libby's "tireless" service should always be seen through the prism of its most "distinct"[ive] act: the leaking of classified information for partisan political purposes. A fitting end to a disreputable man's career in public life.

Update 2: I see (from TP) that Marc Grossman was also an Undersecretary of State. I'd forgotten that, thinking Bolton was his superior. It is, thus, possible that Grossman is the one named rather than Bolton, though all other signs would suggest otherwise. [Further Update on this point: Media reports (like this one) are now saying that it was, indeed, Grossman, not Bolton, who was one of Scooter Libby's sources. This actually makes sense given the role of an unnamed State player---dubbed Foggy Throat here at CCM---in keeping this story in the media, as earlier media reports have suggested that Grossman asked for the INR memo on Joe Wilson's trip. The fact (if it is one) that Grossman was a Libby source doesn't mean he approved of Scooter's leakfest---it would have been totally reasonable for Grossman to assume that Libby would honor his nondisclosure agreement and behave responsibly, and it would be totally reasonable to think he would turn on Libby & Co. once he realized they did not. So now here's an interesting extant question: who was the WaPo's source for the 6x2x1 story? Not clear why it would be Grossman---how would he know either the 6 or the 2 parts?]

Update 3: Let me also point out that Fitzgerald repeatedly went out of his way, both in his press conference and his press release, to underscore that Libby is presumed innocent until proven guilty. I don't know how typical that is of a prosecutor's behavior, but it is a vital thing. Contrast Fitzgerald's caution and forthrightness with, say, the House's articles of impeachment against President Clinton. Of the four proposed articles, the two articles that passed (Articles I and III) each referred to crimes (perjury and obstruction of justice, respectively). Yet Bill Clinton had not been (indeed, he never was) convicted of either crime. Something on which to reflect.


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