[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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