Grinch Stole Fitzmas? [Crooks Half-Baked Scams]

Billmon

Will the Grinch Steal Fitzmas?

John Dean -- who knows something about these things -- has some cautionary words for all the little lefties eagerly counting presents (indictments) under the tree: Don't be entirely surprised if "Santa" leaves a lump of coal in your stocking.

Dean's been extremely prescient about the legal issues raised by the Plame scandal so far -- he was, for example, the first to point out the possible applications of the 1917 Espionage Statute. So when he raises the spectre that national security (the last refuge of executive branch scoundrels) might trump whatever evidence of criminality the special prosecutor has gathered, I give him a respectful hearing, even though I don't agree with this analysis. Here's what he says:

It is difficult to envision Patrick Fitzgerald prosecuting anyone, particularly Vice President Dick Cheney, who believed they were acting for reasons of national security. While hindsight may find their judgment was wrong, and there is no question their tactics were very heavy-handed and dangerous, I am not certain that they were acting from other than what they believed to be reasons of national security. They were selling a war they felt needed to be undertaken.

In short, I cannot imagine any of them being indicted, unless they were acting for reasons other than national security. Because national security is such a gray area of the law, come next week, I can see this entire investigation coming to a remarkable anti-climax, as Fitzgerald closes down his Washington office and returns to Chicago.

Dean adds the caveat that if Libby, Rove or other as-yet unindicted co-idiots perjured themselves or conspired to obstruct justice (and in Libby's case, that looks like the smart way to bet) Fitzgerald may decide to stick around and nail their asses to a jailhouse wall.

If you read Dean's entire argument -- it starts after the subtitle "Who Will, And Who Won't, Be Indicted?" -- you'll see that he's puts a lot of weight on the enormous latitude the law and the criminal justice system have traditionally given the executive branch in national security matters. Unless it can be shown that Cheney et. al. acted in pursuit of some private, venal motive, Dean argues, Fitzgerald may decide his writ simply doesn't extend to an affair that is, after all, deeply entangled with the conduct of foreign policy and the prosecution (no pun intended) of the war in Iraq.

In other words, instead of blowing sky high, the volcano may simply snore loudly, roll over, and go back to sleep. And as Dean points out, since all the testimony Fitzgerald has collected is covered by the grand jury secrecy laws, we may never know what he found.

One can easily imagine the howls of protest on the left, and the smug satisfaction on the right, should this come to pass. It would be particularly bitter finale for those of us who all along have regarded the Plame outing as a proxy for the more fundamental crimes committed along the march to war in Iraq.

Unlike some (see Justin Raimondo's last two columns, for example) I've never had more than a forlorn hope that Fitzgerald would delve into the Niger forgeries, the Chalabi connection, the Office of Special Plans, the Downing Street Memos or any of the other investigative leads into the heart of the neocon conspiracy. Nor have I seen any evidence -- or even plausible speculation -- that would lead me to believe Fitzgerald has expanded his probe beyond the immediate matter at hand: the leak of Valerie Plame's identity and CIA affiliation. But, like most hardcore Cheney administration haters, I've been content with the busting-Al-Capone-for-tax-evasion metaphor. To paraphrase Donald Rumsfeld: You go to war with the indictments you can prove, not the ones you'd like to prove.

Dean, however, seems to think it will take an exceptionally flagrant example of "tax evasion" to persuade Fitzgerald to go after the White House conspirators on cover-up charges.

We'll see. But I think Dean is wrong this time, even though he's right to warn against the overheated rumors now chasing each other through both Left and Right Blogostan. I think Fitzgerald is poised to indict, and while the list of defendants may be short -- Rove, Libby plus a few lower-level munchkins -- I think the charges will be both broad and numerous, including unauthorized disclosure of classified information, theft of government property, conspiracy, obstruction and some combination of perjury and/or false statement charges. I wouldn't even be surprised if the Intelligence Identities Protection Act rears its serpentine head after all -- depending on the means, motives and opportunities of Bob Novak's second source.

If I am wrong, if Fitzgerald really does pack his tent and steal away, it will be because the war on terrorism -- and the Bush Justice Department's relentless campaign on behalf of the Divine Right of Presidents -- has turned the clock back to an earlier era, when the criminal justice system took an even wider detour around executive branch powers, both overt and covert.

Ironically, it was Dean's old boss who started removing the roadblocks. When Nixon tried to derail the Watergate investigation by invoking a fraudulant national security excuse ("Get these people in and say: 'The President believes this is going to open the whole Bay of Pigs thing up again.' ") he called the entire doctrine into question. The subsequent CIA and FBI scandals took the process even further, until it reached its peak in the Iran Contra affair, when prosecutors, judges and juries proved perfectly willing to convict some fairly senior officials for crimes directly related to the conduct of foreign policy. And if George I hadn't whipped out his pardon pen, they might have reeled in some even bigger fish.

Fitzgerald will have to decide whether those post-Watergate precedents still apply, or whether 9/11 rolled back the clock, returning him (and us) to the old Cold War days of near blanket immunity for national security decision makers. Much more than the nuances of the perjury statute, I think the answer to that question will decide whether Karl Rove stands trial.

But, while I've seen nothing that suggests the special prosecutor is digging into the shitpile of the neocon conspiracy to wage aggressive war, I've also seen nothing to suggest he's backing away even one inch from the more mundane crimes of the "get Joe Wilson" slime campaign.

Ultimately, as Dean notes, these are all matters of prosecutorial discretion. But my own sense is that if Fitzgerald believes Karl Rove, Scooter Libby or any other government official deliberately used classified information as a weapon to retaliate against a critic -- what's more, one who broke no laws and violated no secrecy agreement by speaking out -- he'll go after them with every legal weapon at his disposal. I think, or at least, hope, Fitzgerald understands that when an administration turns the vast national security powers of the U.S. government against its own citizens, for purely political purposes, it sacrifices any claim to privilege or protection.

Certainly, everything Fitzgerald has done up until this point suggests he not only believes crimes were committed, and that those crimes are within his authority to prosecute, but that he is also convinced they are well within his discretion to prosecute.

More prosaically, I think the fact that Fitzpatrick's office has created its own web page is a strong sign that indictments are coming -- but not for the reason most widely held. Yes, a web page will come in handy for posting indictments, press releases about indictments, etc. But I think the documents already posted there may be the real tip off. They constitute a not-so-subtle reply to the conservative lie du jour -- that Fitzgerald has strayed far beyond his "original" mandate to investigate alleged violations of the Intelligence Identities Protection Act.

I've seen this lie repeated so many times today -- mostly by people smart enough to know better -- that I'm beginning to wonder if the RNC really does have a chip implanted in the brain of every corporate journalist on the planet. It was in the New York Times, the Wall Street Journal, and in a Weekly Standard editorial so duplicitous that it cements Bill Kristol's claim to be the most talented intellectual hooker in Washington.

On his brand new web page, however, Fitzgerald has prominently posted both his original delegation of authority from the Justice Department -- which instructs him to investigate "the alleged unauthorized disclosure of a CIA employee's identity" -- and a follow up letter, dated Feb. 6, 2004, which clarifies that he has the power to investigate and prosecute:

violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses . . .

Nowhere -- a word even Bill Kristol can't parse -- in either document is it stipulated that Fitzgerald's brief is limited to the IIPA, in fact the opposite is true. By throwing those letters up on the web today, Fitzgerald has, intentionally or not, signaled that he doesn't have the slightest intention of backing down. This guy is about as Irish as they come, and the Irish are not generally known for ducking away from bar fights. If the neocons want to take him on -- on the ground he's been preparing for the past two years -- they'd better have the propaganda equivalent of broken bottles in their hands.

The prospect of espionage charges, of course, is giving the lapdog pundits a bad case of the fantods. On what will they subsist if their official sources are too frightened to pass out a steady diet of classified doggy treats -- premasticated for easy digestion?

It's interesting to note that the real journalists, those who deal in real secrets, like Sy Hersh, aren't in the crying poodle chorus. Sy's sources already know that the long hand of official retribution could come down on them at any time. But now the official sources who hand feed kennel-bred columnists over martinis at Jack Abramoff's restaurant are feeling the same chill breeze. Is it any wonder their pets are yapping about First Amendment rights?

But the lap dogs are barking about 20 years too late. As previously explained here (courtesy of John Dean) the legal weapons that Fitzgerald has at his disposal were test fired by both the Reagan administration and the Ashcroft Justice Department. There's already nothing to prevent the powers that be from cracking down hard on unauthorized leakers -- other than the fact that they'd be throwing themselves in the slammer.

What the special prosecutor is doing, on the other hand, is challenging a cozy insider-trading racket that's done far more to housetrain the corporate media and shield an out-of-control classification regime from reform than it has to serve the American people's right to know. If Fitzgerald reaffirms the post-Watergate principle that Big Brother can go to jail, it will do more to advance the cause of civil liberties than a baker's dozen of Washington pseudo-journalists. On the other hand, if he backs down now, it's easy to imagine future administrations finding other official secrets to use against their critics, all in the name of national security.

Unlike Dean, I prefer to be optimistic until proven otherwise. Fitzgerald isn't the Great White Hope, and I don't expect him to reveal all. But if he can knock the cabal out -- or at least punch the crap out of it -- with the modern equivalent of Al Capone's tax evasion conviction, I'll take it. Capone, after all, emerged from prison a broken man, his mind rotted away by syphilis. We could do worse.
Posted by billmon at 06:58 PM