Smoking guns and red
herrings By Elizabeth de la
Vega
The Grand Jury supervised by US
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 a grand jury.
The charges relate to leaking the name of
a Central Intelligence Agency operative, Valerie
Plame.
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, six 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 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 Bill Clinton
(and got away with it).
Even after
indictment, Department of Justice media 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". President George W Bush 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 US 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 Joe Wilson's
(Plame's husband) credibility over weapons of mass
destruction 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 Joe
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 "yellow cake" 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 Fitzgerald eloquently
explained in his news 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 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 20 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, 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 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 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 George Bush Sr provide cause for
concern. Let us hope that the current 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 US Attorney's Office for the
Northern District of California.
