Friday, May 20, 2005

It's Not the Crime. It's the Cover-Up 

Via Zemblan patriot K.Z.: Former White House counsel John Dean has been closely following the investigation into the outing of CIA operative Valerie Plame. Having read a new chapter in the paperback edition of The Politics of Truth, by Plame's husband Joseph Wilson, Dean speculates on the reasons why Special Prosecutor Patrick Fitzgerald has "shifted his focus" -- and why the testimony of reporters Judith Miller and Matthew Cooper may be pivotal to his case:
Reading Joe Wilson's book, in combination with the Senate Intelligence Committee's report on pre-Iraq-war failures of the American intelligence community helps clear away some of the fog. In part, that's because Wilson's publisher, Carroll & Graf, retained Russ Hoyle -- an investigative reporter who has been a senior editor at the New York Daily News, Time magazine, and the New Republic - to do what it might be inappropriate for Wilson himself to do: look into the government's investigation of the leak of his wife's identity.

Hoyle's report - included in the paperback edition of the book - notes that "There is little question that the investigation of the White House leaks is now hostage to Fitzgerald's campaign to force Cooper and Miller to testify." But, again, why?

Other information provided in Hoyle's report provides insight. Hoyle writes that Washington Post reporter Walter "Pincus, for example, reportedly confirmed the time, date, and length of his conversation with a source…, but Pincus would not reveal his or her identity."

Hoyle continues, "That lent credence to reports that Fitzgerald had subpoenaed records of every contact that White House personnel had had with reporters during the period in question and was engaged in a meticulous search to match such times and dates with records of meetings and telephone calls between reporters and Bush officials gleaned from calendars and telephone logs" . . . .

For months, it has been rumored that Fitzgerald has found only a low-level leaker in the White House - one who seems not to have violated the 1982 Intelligence Identities Protection Act, which makes it a crime to disclose an undercover CIA operative. But it is only criminal if the leaker knew the name was classified, and that the CIA sought to keep it classified. (A low-level person might not have had this knowledge.)

If so, that's odd. Remember, Novak credited two "senior" Administration sources. But let's suppose it's true. In that event, it is quite likely - and many lawyers following the case believe - that the investigation has shifted to possible charges of perjury and/or obstruction of justice, more than likely by big fish . . . .

From the point of view of a perjury/obstruction case, it matters little that Cooper began to report only after the initial link in the Novak column. Nor does it matter that Miller never did report on the leak. Even reporters who don't write what they learn, or who don't report at the very start of the controversy, may learn information crucial to making a perjury or obstruction case.
As you know, Cooper and Miller are refusing to testify pending an appeal of their subpoena. Dean does not expect the Supreme Court to rule in favor of the reporters -- but the votes of four justices would be sufficient to place the case on the Court's docket, which could conceivably delay the resolution of Fitzgerald's investigation until late 2006:
For this reason, a Court decision to docket the case should raise deep suspicions. This, after all, is the Court that installed Bush and Cheney in the White House with its dubious Bush v. Gore ruling. Delaying this case until the backside of Bush's second term could give the White House a pass through the mid-term elections as well.

Such delay, then, would suggest complicity by the conservative bloc (those most likely to take the case) of the Court in Administration crimes. Imagine, by comparison, if conservatives on the Court had managed to delay the Court's ruling forcing Richard Nixon to turn over his tapes to the Watergate Special Prosecutor until after the 1974 mid-term elections. That would not only have helped Republicans in the mid-term elections, it would also have enabled Nixon to survive an impeachment conviction -- for there was no smoking gun until the Court acted.

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