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Sunday, March 11, 2007

Fitzgerald, Libby, and the roles of, and viewing windows for, big lizards (be they mere prosecutors, Special Counsel, or Independent Counsel Godzillas) in the legal-political jungle

My blogospheric friend Dafydd ab Hugh has posted on his blog, Big Lizards, a terrific post that begins with a recap of observations and arguments about the Libby case from me and Patterico, and that then goes on to make a series of well-argued points of his own, followed by a well-chosen list of questions as to which he contends that Special Counsel Patrick Fitzgerald owes us all answers.

Dafydd, of course, is a frequent commenter on a number of blogs, and his own is first-rate. When I urge you with respect to this particular post of his to "read the whole thing!" and then to "keep scrolling!" I am not making a rote compliment, but a genuine and whole-hearted recommendation. And it's genuinely not worth your while to read the remainder of my post here without first having read his from start to finish.

The executive summary of my response to Daydd is this: The criticisms you make of Fitzgerald are understandable, and I'm inclined to agree that at least one might be valid. Your frustrations with the lack of information and lack of closure from the process just concluded in the Libby case are widespread, precisely because the unanswered questions are indeed important ones. But the information you'd have Fitzgerald provide is of a sort that no prosecutor — whether Special Counsel, Independent Counsel, or otherwise — can furnish without deeply compromising the investigative and grand jury processes on which our criminal justice system is premised. You fault Fitzgerald for being too political, but your demands, if met, would turn him into another of the terrible political/prosecutorial animals that people accused Ken Starr and Lawrence Walsh of being (with considerable justification), and that is a species which Congress, with rare wisdom born of bitter experience, intended should become extinct. Real prosecutors can't answer the kinds of questions you've asked, ever but especially in a case fraught with political overtones, and when you think about it more, you'll probably realize you don't really want them to be permitted to.

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Dafydd's opinions and mine part company in the earliest premise of his post — that "naming a Special Counsel is primarily a political, not a legal action."

I do not dispute that, as he argues in support of that premise, that Special Counsel (or their predecessors, Independent Counsel) have been "appointed in order to investigate a political scandal." Nor do I much dispute that "because naming a Special Counsel announces ...  that the Justice Department itself is implicated in this scandal, [and] hence cannot be trusted to undertake the investigation itself[, that] also makes it a highly political event." The second argument is a bit off in its formulation: the regular DoJ staff who would otherwise handle a case "cannot be trusted" in some sense, but it's not necessarily — and indeed, was not in L'Affair Plame — because the Justice Department was "implicated." Rather, there was at least an appearance of impropriety because of a series of potential conflicts of interest, first on the part of Attorney-General Ashcroft (who had pre-existing and substantial ties to the main rumored target of the investigation, Karl Rove), and then (far less specifically and probably less justifiably) on the Washington-based career DoJ staff as a whole, who were more or less presumed (fairly or not) to be viewed as such intrinsically political creatures by virtue of practicing inside the Beltway that the public interest would be better served by bringing in someone from another part of the DoJ altogether. So at bottom, I agree with Dafydd that political considerations are typically what drive the Special Counsel appointments, and that their investigations are almost always tied up in a swirl of politics and political concerns.

What I think he misses in his analysis, though, is that the intention of the appointment of a Special Counsel is to make the resulting investigation and (if appropriate) prosecution(s) less political than they would otherwise be, not more. The same was intended to be true for the previous system of appointing, pursuant to special statutory authorization, "Independent Counsel" like Ken Starr (Whitewater/Clinton) or Lawrence Walsh (Iran-Contra/Reagan), respectively the bane of Democratic and Republican administrations.

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Of course, the entire investigation and indictment process in any of these cases is subject to being accused of being the "criminalization of politics-as-usual." That's just another way of saying, as Dafydd and I seem to agree, that Special Counsel appointments are likely to arise in those situations in which something alleged to be criminal conduct also seems to have been motivated by political concerns. At some point — the Watergate break-ins, for example — everyone seems to agree that, yes, whether it was politically motivated or not, this is a real crime. With Clinton's or Libby's alleged perjury, it's concededly a question on which there is lots more room for good-faith disagreement.

But unless one concedes that public officials should be exempt from the rule of law, instead of held to its highest standards, there must be someone in the justice system who investigates and then makes the decision, "Do we or don't we seek an indictment for this?" And in the current set-up, that's typically the Special Counsel. There is no way for crimes with political overtones to be prosecuted, ever — not even the Watergate break-ins — unless some kind of prosecutor-beast has that niche in the mixed politics-and-legal jungle of the Washington, D.C. ecosystem.

(And of course, the federal trial and appellate courts, and the grand and trial ("petit") jury systems, also have their roles, both as enforcers and as further checks and safeguards. They aren't immune from politics either, as a practical matter, but like the Special Counsel, they're intended, and somewhat set up, to function despite politics rather than because of them.)

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The historical problem, though, was that the structure created by the Independent Counsel statute in fact almost uniformly turned out to make Independent Counsel not less, but more political. By giving them unlimited budgets, incredibly broad discretion, and freedom from DoJ involvement or even remote oversight, Congress birthed a species of mutant-prosecutorial Godzillas. By permitting Independent Counsel to make written reports on their findings — a dramatic and intentional (but spectacularly unwise) decision to broaden what they could say far beyond the traditional rule that prosecutors talk almost exclusively through their indictments and through the evidence that they then present in court — Congress gave those Godzillas not only a capacity to breathe fire, but virtually a mandate to do so, and in the process to issue a predictable, and more or less continuous, spray of napalm droplets in the form of leaks.

By letting the Independent Counsel statute expire without further extensions, Congress punted the genetic engineering task back to the DoJ. The DoJ's resulting Special Counsel regulations, under which Fitzgerald was appointed and serves, roughly codify a calculated re-balancing of concerns. As discussed above, there must be some sort of animal to fill the niche in the legal-political ecosphere where the Independent Counsel-Godzillas once trod. And garden-variety prosecutorial beasts can't always serve, because situations indeed inevitably will arise in which the canons of legal ethics, and related concerns about mere appearances of impropriety, require that normal prosecutors recuse themselves (or, failing such, be disqualified by the courts), so that justice not only be done, but be seen to be done, in an impartial fashion.

As I explained in one of my tediously lengthy posts back in 2003, the Special Counsel regulations very deliberately stripped the resulting animal of its flame-breathing (report-writing) genes, and was likewise intended to strip it of its fire-droplet (press-leaking) tendencies as well. Indeed, the resulting animal is intended to look and act almost exactly like the ordinary species of federal prosecutor — but just to come from and report back to a different nest than the one located in the territory of the ongoing dispute (here, Washington). It is indeed intended to be more robust and effective in a challenging political-legal environment than, say, the Archibald Cox variety of prosecutor, and that's why the regulations give it an extra layer of heavy-duty insulation from the common patriarchs of all such animals (the Attorney General and his boss, the POTUS). But the Special Counsel is still, recognizably, a creature of the Justice Department, and it's expected and intended to act that way (but just without the conflict of interest, real or perceived).

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Dafydd's post points to at least two specific actions or statements of Fitzgerald that unquestionably have had, and could have been foreseen to have, enormous political consequences. None of them, however, and not even all of them in the aggregate, remotely approach the degree of political change and turmoil injected by previous Independent Counsel like Starr or Walsh. And with respect to most of them, there are good reasons for Fitzgerald to have done what he did from normal prosecutorial needs and motives, rather than from political ones.

Dafydd points to the fact that the Libby indictment referred to Plame's CIA employment status as being "classified," even though no one was charged under substantive statutes which might directly criminalize conduct that compromises covert agent identities or classified information generally. Fitzgerald's answer to that, though, would be that it was essential that he, as a prosecutor, establish the context of the FBI's and Special Counsel's and grand jury's investigation and the public interests that they were trying to protect, because that is an essential part of proving the materiality of perjury (and through that, obstruction of justice). He probably could have done that just by referencing her as a CIA employment, without saying "classified" or "covert"; that's how she was described in the reference under which he was appointed. But he had to say something about the general nature of the public interest that could have given Libby's statements to the FBI or to the grand jury their required materiality — and that is true without regard to whether anyone was ever indicted or convicted as a result of the investigation. Nothing more was required to establish materiality. And indeed, he didn't end up offering proof beyond that she was a CIA employee, and even that was indirect, because it came through the view-point of those who were discussing the transmission of what they understood to be true about her employment. What they understood to be true, rather than what actually is true, was what was relevant to the charges against Libby.

And to have said that Plame was or was not "covert" within the meaning of the relevant statute would, in Fitzgerald's view, have been unnecessary, and therefore improper, as inevitably tending to reveal material known to him, if at all, only through the processes of the investigation and grand jury proceedings, or to have revealed things that were not investigated more thoroughly. (It also would not have been nearly as simple a statement to confirm as Dafydd's question assumes.) In Fitzgerald's and the traditional prosecutor's views, either saying that she was or was not "covert" would be equally improper; the proper functioning of the criminal justice system depends on the public having no windows into those processes precisely so that the people whom the system relies upon to make those decisions will not be influenced by the politics and public opinion that would inevitably result. Fitzgerald, like the traditional prosecutor in a non-political process, is supposed to decide both when to turn over stones and when to stop without reference to the political affiliations of people under investigation or any other political concerns; if he's later to be called upon to explain what he did and why, other than with respect to the indictment and its proof in court, his decisions on those matters are inevitably going to be compromised.

And all you need do is look at the incredible volume of the guess-work already going on about this case, both from those arguing that he kept going to far and from those who argue that he didn't go far enough, to see how politics and public outcry might compromise the independent judgment a prosecutor is supposed to bring to bear. "He should have shut down!" insist some on the right, or "he should have indicted Armitage" insist others (also on the right). "He should have indicted Rove and Cheney! (And Impeach BushHitler!)" insist others on the left.

And it's not just prosecutors who we want to insulate through a cloak of secrecy. Likewise the FBI agents; likewise the grand jurors; likewise the judges, who won't let us look at their memos back and forth among one another or their law clerks. We want all these people using independent judgment, not sound meters tuned to the public hue and cry.

It is dramatic, but not at all wrong, to point out that these deliberate obscurations of the process, and the insulation they are designed to ensure, are what separates us from a government of laws and a government of men, from civilization on the one hand and mob rule on the other.

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But if you accept at all the premise that Fitzgerald was entitled to prosecute someone who committed perjury and obstruction of justice in the course of an investigation that did not, ultimately, result in anyone being indicted or convicted for the suspected underlying crimes from the fact pattern and furor that got him appointed as Special Counsel — and many people do not accept that premise, but Patterico and I certainly do, and I think Dafydd does as well — then beyond the "classified" references made repeatedly but mostly in passing, there's not too long a list of other statements or actions by Fitzgerald that don't have at least an apparent prosecutorial motive and function (rather than purely political ones). [Now there's a sentence that begs to be put out of its misery if Beldar's ever written one — Ed.] The most troublesome statement that Dafydd points to is Fitzgerald's reference to a cloud over the vice presidency in his final (rebuttal) closing argument.

I would very much like to see a full transcript not only of Fitzgerald's closing arguments, but those of Libby's defense lawyers. FireDogLake's live-blogged synopsis is the closest I've been able to find (through admittedly non-exhaustive web research). The context there suggests to me that Fitzgerald wasn't referring to a political cloud of corruption, but rather, the "sand-in-the-eyes" metaphorical cloud from Libby's obstruction of justice that obscured the Vice President's actions from full investigation. I know that the MSM and the administration's opponents and Fitzgerald's critics are all eager to seize upon this as a political reference, but I can't really decide which is more likely to have been intended without actual transcripts.

If, however, that comment was intended to be an attempt to suggest a broader conspiracy that implicated both Libby and the Vice President in vague and uncharged crimes, or even just in some reprehensible and shocking (but non-criminal) political conduct, then yes, it would have been a straying outside of the proper role of a prosecutor. At best, one can argue that under that interpretation of the comment, it reveals Fitzgerald's otherwise tightly-repressed and -concealed political, non-prosecutorial motivations throughout the investigation and prosecution. Good-faith opinions on this concededly can differ. But personally, I just don't buy that conclusion, or think this one remark can be used to sell it.

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Dafydd is innocently mistaken in his assumption that there is some line that can be drawn between grand jury testimony in particular and everything else that's gone on in the investigation and the decision whether to seek indictments and the trial planning. He acknowledges that grand jury testimony and proceedings are, by law, something that prosecutors and grand jurors and other participants may not disclose.

As Fitzgerald pointed out in his press conference at the indictment, however, grand jury witnesses and FBI interviewees may, despite urging from the prosecution, reveal what they've said. There's a reason for that distinction. It's the actors in the justice system, the investigators, decision-makers, the wielders of the system's spears — not the sources of their information — who need to be insulated from public opinion and political influence in order to exercise their judgment properly and independently.

And when you understand that rationale, then you understand that each and every one of the well-formulated and intensely interesting questions Dafydd has asked in the balance of his post — many of which have been asked less elegantly of Fitzgerald by the press at all of his press conferences — are also completely and emphatically out-of-bounds. They seek, directly or indirectly, information that he can't give. You can't segregate the grand jury testimony, and then strip out and publicize everything else (facts, investigation done or not done, judgment calls made on the basis thereof). Whether as a normal prosecutor or a Special Counsel, the system will fall apart if the public's advocate is either required or even permitted to disclose that stuff.

The demagogues in Congress will insist that as public servants in a coordinate branch of government, they're entitled to that information anyway. The DoJ will say, No you're not, because we're part of the executive branch, and the Constitution gives us and not you the job of investigating and prosecuting crimes. The demagogues will then ask the third branch, the judicial one, to compel the DoJ, but I am positive that the judicial branch will either refuse to answer the question or else side with the executive branch and its subpart, the DoJ.

Prosecutors talk to those outside the justice system through indictments and through the evidence they present in court to try to prove those indictments. They can give generalities and platitudes, and they can discuss things at the extreme margins. Fitzgerald's assurances in his indictment press conference that there was no interference or non-cooperation from any government agency in connection with his investigation were appropriate, for example, because if there had been, that's something he couldn't just shut up about. But Dafydd and the press would like Fitzgerald to talk about things like, "Did you consider indicting Rove? If not, why not? If so, how close did you come? Now let's talk about Cheney. What's your take, Pat, on Ms. Plame and her Vanity Fair photo spread?" (In fairness, Dafydd would never ask that question, but People magazine and even Newsweek would.)

The answers would be fascinating stuff. But it would be phenomenally bad public policy to permit Fitzgerald to give those answers. And it's just not going to happen.

Posted by Beldar at 11:45 PM in Law (2007) | Permalink

TrackBacks

Other weblog posts, if any, whose authors have linked to Fitzgerald, Libby, and the roles of, and viewing windows for, big lizards (be they mere prosecutors, Special Counsel, or Independent Counsel Godzillas) in the legal-political jungle and sent a trackback ping are listed here:


» Beldar vs. Dafydd Under the Big Top from Big Lizards

Tracked on Mar 12, 2007 9:39:10 PM

Comments

(1) Patrick R. Sullivan made the following comment | Mar 12, 2007 10:46:35 AM | Permalink

Here's the transcript of Fitz's 'rebuttal'. Which is a rebuttal in name only. It's the prosecution's close.

[I'm grateful for the link, and I had previously found that webpage, but it's emphatically not an official transcript; how close a paraphrase it is, I can't determine; and it's on a parody webpage made to look as if were posted by Patrick Fitzgerald, but the parody nature may not be immediately obvious. Others who follow the link should do so with those warnings. — Beldar]

(2) cboldt made the following comment | Mar 12, 2007 11:31:49 AM | Permalink

From the mouth of Fitzgerald. First from the closing statement, then from his post-trial presser. The closing statement is ambiguous enough that some people will take it as an overt assertion of Libby/Cheney conspiracy to out Plame, and I'm sure there are a good number who will argue that this is the ONLY reasonable interpretation of this section of the closing statement.
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MR. FITZGERALD: And you know what? They said something here that we are trying to put a cloud on the Vice President. We'll talk straight. There is a cloud over what the Vice President did that week. He wrote those columns. He had those meetings. He sent Libby off to Judith Miller at the St. Regis hotel. At that meeting, the two hour meeting, the defendant talked about the wife. We didn't put that cloud there. That cloud remains because a defendant has obstructed justice and lied about what happened. Did he come in straight and say what really happened? He came in and said, told the grand jury, I don't remember anything. I remember learning about the wife. I learned it from Russert as if it were new. I was sitting around thinking I don't even know if Wilson's married. How do we know he has a wife?
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He's put the doubt into whatever happened that week, whatever is going on between the Vice President and the defendant, that cloud was there. That's not something that we put there. That cloud is something that we just can't pretend isn't there.
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Q -- but in your summation, you said that there was a cloud over the vice president and there was a cloud over the White House. Do you think that cloud still remains after this verdict?
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MR. FITZGERALD: And what I'll say is this. I said what I said in court. I'm not going to add to it or subtract from it. What was said in court was the defense argument made that we put a cloud over the White House, as if, one, we were inventing something, or, two, making something up in order to convince the jury that they ought to convict. And I think in any case where you feel that someone's making an argument that you're inventing something or improperly casting a cloud on someone, you respond. And we responded fairly and honestly by saying there was a cloud there caused by -- not caused by us. And by Mr. Libby obstructing justice and lying about what happened, he had failed to remove the cloud. And sometimes when people tell the truth, you know, the clouds disappear; sometimes they don't. But when you don't know what's happening, that's a problem. And so the fact that there was a cloud over anyone was not arguing; it was the facts of the case, it was aggravated by Mr. Libby telling falsehoods, and
that's what we said. We're not going to add to that or subtract from that. That's what we said in court, and that's the context in which we said it.
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(3) htom made the following comment | Mar 12, 2007 4:20:29 PM | Permalink

One of the problems of the Grand Jury is that we have no way to determine if someone (Apple) who comes out and says "I said that Orange said Strawberry" did, in fact, say that to the Grand Jury (we also don't know if Orange said Strawberry, but that's a different question.) And there's no way for us to determine if a prosecutor coming out and saying that "Testimony was given that Orange said Strawberry" is true, either, whether or not that statement is attributed to Apple.

Some of the accusations being tossed about are what I consider to be "toxic". There's no meaningful reply to them. "He's a child abuser" or "He's a pedophile" have become the archtypical examples. "There's a cloud", well, d'oh, yes, and you're helping to make it rather than clearing it away.

My objection is not so much that Libby was prosecuted, but that the others were not. It seems to me that everyone involved had motives to fudge with the truth. If six of them had been charged, and only Libby convicted, there would probably be charges of political bias, but they would probably not be being made at Fitzgerald.

(4) TCO made the following comment | Mar 12, 2007 9:49:57 PM | Permalink

1. Dfayd is off on what he wants (in terms of closure, in terms of information sharing on non-legal issues) from the prosecuter. He can get that from history or from congressional investigation. But it is not the prosecutor's role to investigate for informational reasons.

2. He is also wrong (from the standpoint of commonsense logic) to expect either a formal charge or statement of innocense. Obviously there are gradations. There are people that are probably guilty, but not provable, etc.

3. Dafyyd is correct to chide Fitz for the non-sequiter comments about "classified", "cloud"...and for the presser (I think he was actually reprimanded for the presser by DOJ).

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What was so great about Daffyd's post? Don't be so loose with the praise, Tex.

(5) stan made the following comment | Mar 13, 2007 2:04:40 PM | Permalink

Beldar,

You grossly mischaracterized the role Starr played. He wasn't named to investigate perjury. He was named to investigate a whole series of very serious crimes that led to a number of convictions. And these were not a question of "criminalizing political differences".

(6) Beldar made the following comment | Mar 13, 2007 4:27:12 PM | Permalink

Stan, I mentioned Starr as the counterpart that the Democrats point to in the same way Republicans point to Walsh as an example of Godzilla-like Independent Counsels. Whether one thinks that either or both of them went amok — and I was among those who thought Starr's investigation and report were appropriate — one can't deny that, in particular, their written reports had huge political consequences. Those reports were also a type of communication that regular prosecutors never make, and not only were they entirely unnecessary to the bringing of traditional prosecutions, they were often directly at odds with that purpose.

(7) Karmi made the following comment | Mar 13, 2007 8:52:22 PM | Permalink

'Radical' Islam is using the Western (read: Infidel) judicial systems in their 3-part plan of spreading Islam.

BTW, 'Radical' Islam (what a Dualistic term!) believes in "government of laws" over "government of men", but they maintain more fexibility than we Infidels.

Anyway, i have "Big Lizards" listed at the top of my Favorites Blog list, and have recently added Beldar @ #3...just behind Power Line, and moving up fast.

*GREAT* Debate/Discussion!!!

Thanks,

Karmi

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