Watergate II : Libby indictment : a Prosecutor’s assessment


Richard Moore

    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, [where] Indictments were
    announced in stages, culminating in the indictment of
    Ryan, who was the 66th defendant in the case.  

This gives us hope that other indictments may follow.
See today's companion posting, "...excellent analysis".


[ original version includes links ]

a project of the Nation Institute 
compiled and edited by Tom Engelhardt 

Tomgram:  De la Vega, a Prosecutor Considers Libby's

[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 : 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," set up out of
Dick Cheney's office and Donald Rumsfeld's neocon-ridden

If you want to bone up on this story, you might check out
reporter Jim Lobe's August Tomdispatch piece 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 the
Downing Street Memos either, or those mysterious, crudely
forged Niger uranium documents -- Laura Rozen is on the
case (scroll down) -- that led to the President's infamous
16 words in his 2003 State of the Union address .  

Now we know as well that the FBI (along with the Italian
press ) 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 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 , 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

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

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

posted October 28, 2005 at 5:07 pm 


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