Friday, October 28, 2005

Preview of Coming Attractions 

Tom Engelhardt is preparing to post a major Nation article by Elizabeth de la Vega, in which the former federal prosecutor explains how she would build a legal case against the Bush administration for taking the country to war on false premises. We will certainly link to that article as soon as it appears; in the meantime, however, Ms. de la Vega has given TomDispatch readers a foretaste of the longer essay in a brief piece entitled "Smoking Guns and Red Herrings." Now that Patrick Fitzgerald has announced the indictment of Scooter Libby -- adding, ominously, that "it's not over" -- there are "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.

  • We should not expect a smoking gun.

  • We should not expect the President to take steps to "get to the bottom of this." (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).

  • We should expect more attacks on Joseph Wilson, even though they represent a very large red herring (more the size of a mackerel).

  • 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.

  • We should expect attempts by pundits to derive "meaning" from the absence of charges under the Intelligence Identities Protection Act or the Espionage Act.

  • We should expect a campaign to demonize Fitzgerald through claims that he is overzealous and has exceeded his authority.

  • 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.
Yes, we know there were six "things we should expect," not four as promised. We just work here.

UPDATE: The favorite storyline of administration apologists -- that Messrs. Cheney, Rove, Libby, et al, did not know that Valerie Plame was an undercover operative -- has just been definitively flushed by Josh Marshall.

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