Fitzmas Fizzles

[W]hen an SP runs out of material less than sixty days into a grand jury probe, s/he doesn't fold up shop, but dons his/her lucky fishing hat and goes angling....What happens when a probe is lengthened and lengthened and lengthened? Easy - more and more people testify under oath, and the possibility of an inadvertent omission or misstatement grows exponentially. That would seem to be the only thing on which Fitzgerald could indict anybody, since the Bush White House has been so obsequiously cooperative that any suggestion of conspiracy or obstruction of justice would be bad comedy.

-Me, three days ago

Well, I was pretty damn close, anyway.

Yesterday Vice President Cheney's chief of staff, Lewis "Scooter" Libby, was indicted by Special Prosecutor Patrick Fitzgerald on two counts each of perjury and making false statements to the FBI and one count of obstruction of justice. If convicted on all five counts he could be sentenced to as much as thirty years in prison.

However, this was the only indictment announced by Mr. Fitzgerald. Karl Rove was not even hinted at in his grand jury-concluding press conference, though he is still "under investigation," which could mean several things but is thought to indicate that he's (mostly) out of the legal woods.

For Libby this is obviously a disaster. He had to resign yesterday, and will now, given his current age and how long he could end up in the klink, be little short of a battle for the rest of his life. I don't think it will come to that, personally; the perjury counts seem to me to be an inducement to a plea bargain, since their threshold of proof is a great deal higher than the false statement charges. In terms of historical parallels it reminds me most closely of the Watergate-related charges filed against Nixon Chief of Staff H.R. Haldeman, another busy White House official whose memory and notes relating to conversations of avid prosecutorial interest diverged to his ultimate detriment.

Right-of-center reaction to the Libby charges was mixed. Here's a sample.

Byron York:

A number of observations tonight from people who know and follow the CIA leak case:

The first is that they view the indictment against Lewis Libby as very strong. One source called it "as clear-cut an indictment" as one would ever see, and the consensus is that Libby is in serious trouble. If Libby lied as much as Fitzgerald accuses him of lying, the sources say, then Libby acted in an astonishingly reckless way.

Paul Meringoff:

The indictment looks strong on its face, and the offenses alleged are serious ones. However, Libby is innocent until Fitzgerald proves otherwise, and we have not yet heard Libby's side of the story.

Ed Morrissey:

In this case, it looks like Libby lied for fear of getting caught up in a political scandal, or he didn't understand that he had not committed a crime until the FBI showed up to interview him. If the indictment has its information correct, Libby acted foolishly in trying to spin a story about how he learned of Wilson's wife. Perhaps he thought everyone else would stonewall Fitzgerald and the FBI, too, but it looks like he was very much mistaken....

Lying to FBI agents and grand juries will get one in a lot of trouble, and five counts make it difficult to argue that he simply got misunderstood. He deserves a fair trial before anyone judges him, but if the indictment truly describes what happened, the VP is better off without him.

John McIntyre: My initial reaction is Scooter Libby is in BIG trouble.

"A career senior federal prosecutor" via Mark Levin:

I have been following Pat's case, but admittedly I am not familiar with all of the nuances of his evidence. However, I have handled perjury prosecutions in the past and I know from personal experience they are extremely difficult to prove. I have to wonder, what evidence does Pat have that Libby consciously misled (or lied) to the Grand Jury, as opposed to simply making a mistake?...

In Libby's case, it is clear the espionage law does not apply, Plume was not undercover, what possible motive would Libby have to lie or obstruct? While motive is not a statutory element of the crime, to prove perjury a prosecutor must give the jury a plausible reason for the defendant to engage in the charged conduct. The only possibility I see, is perhaps Libby "thought" disclosing Plume's identity to reporters violated the law. But as I understand the timeline, by the time he testified before the Grand Jury everyone was well aware that the Espionage Secrets Act did not apply to Plame.

As a career prosecutor I consider lying to the Grand Jury a very serious crime, it undermines our entire system of justice, but just as deleterious are weak cases that lead to bad rulings. Unless I am missing something, I don't see it here.

Michael Ledeen:

I think the indictment stinks. You have to parse it very carefully to figure out whether Libby is accused of lying to the grand jury or the FBI, or to journalists. Go look. I finally concluded that it says that Libby lied to the grand jury (and elsewhere the FBI) when he testified that he told (Cooper, Miller or Russert) things that in fact he did not tell (Cooper, Miller or Russert).

If that is right, it means that this poor man may well have been indicted because his memory of those conversations differs from the journalists'. And Fitzgerald chose/wanted? to believe the journalists' memories. Pfui. To this non-lawyer, that's not good enough to shake up the staff of the vice president of the United States.

Isn't perjury a knowing lie? Why should Fitzgerald assume, even if he thinks he KNOWS that the journalists' memories are all reliable, that Libby didn't misremember the conversations?

John Hinderaker:

As to Libby, the indictment is devastating. If the facts alleged are true - and they are evidently based on the testimony of a considerable number of witnesses - they can't be chalked up to inadvertence, misstatement or differing recollections....if the indictment is true, Libby told a story under oath which differs, not only materially but vitally, from that of close to a dozen other witnesses.

I can't imagine how Libby could have been foolish enough to lie to the grand jury, if indeed that is what happened. As a long-time Washington insider, he must have realized how grindingly thorough this kind of investigation is. How could Libby not have foreseen that his story would be contradicted by every other executive branch employee who was interviewed by the FBI? And how could he not have realized that perjury would be far worse than the original alleged offense? Indeed, Fitzgerald appears to have concluded that Plame was not, in fact, a covert agent, since there is no count in the indictment alleging violation of the Intelligence Identities Protection Act. So if Libby had told the truth, it appears that he would have been fine.

As for my "layman's take," I can only speak from my own experience as a federal grand jury witness.

The first thing you learn in that crucible is how much of what you think you "know" is really just assumptions with various degrees of foundedness (or what the law calls "hearsay"). We speak of things we have heard third-hand as though they are vouched, established, proven facts when in reality if we had to prove them we would be up the proverbial creek.

Never is that brought home more viscerally than when you go into that grand jury room, raise your right hand, and repeat after the bailiff (or the conference room at your attorney's office to give a sworn, videotaped deposition). All of a sudden you realize how little you actually know for certain, and how little you want to say at all for fear that the plaintiff's counsel or prosecutor will catch you in a contradiction, or whip out something from four months before that you haven't thought of once since and had completely forgotten about that undermines your previous testimony, given according to your honest but incomplete recollection.

It's like being stalked by an invisible assassin armed with an invisible gun that shoots invisible bullets. You don't know where he is, or where he's coming from, or when you're hit until the slug pierces your trembling flesh. And then - BAMMO - you're discredited, and if the prosecutor so decides, a "perjurer" and "obstructor of justice."

Did Lewis Libby panic? Was he testifying under a false assumption - either that there was legal exposure under the IIPA or that other White House officials (ordered by the President, you'll recall, to cooperate completely with the investigation) would tailor their own testimony to reinforce his? Or did he genuinely forget the details of two-year old conversations, including who said what to whom and in what chronological order? Given that I would be hard pressed to tell you what I had for lunch last Tuesday, and have been absolutely positive about the nature and details of two-year-old events that proved to be measurably different from how I remembered them, I can, well, testify to how plausible the latter possibility is - or, "more and more people testify under oath, and the possibility of an inadvertent omission or misstatement grows exponentially."

I think that the reason this probe lasted for nearly two years is that it took Mr. Fitzgerald that long to secure a sustainable indictment of anybody on anything in order to justify all the time, effort, and resources put into it. Or, "Sharks eat, swim, and make baby sharks; prosecutors eat, sleep, make baby prosecutors, and, well, prosecute." Special prosecutors don't see their job as determining if a crime has been committed in the assigned episode; they see their job as amassing scalps. Which is why in political prosecutions like "Plamegate" the indictments that usually emerge have little or nothing to do with the original incident(s) in question, but from the investigation itself.

Should Fitzgerald have closed up shop twenty months ago when it was clear that Valerie Wilson was not a "covert agent" and thus nobody at the White House could possibly have "outted" her? Sure. Does the Libby indictment mean that he's an "out-of-control prosecutor"? Well, I'm sure Libby probably feels that way. It was his rotten luck to be the designated victim, as well as his piss-poor judgment in making himself such an obvious target.

But in the bigger picture it's harder to make that case, at least at this juncture. If "P.F. Ness" had been Illinois' answer to Ronnie Earle, he could have indicted Karl Rove anyway, and who knows who else, perhaps even Dick Cheney himself. That would have made a huge splash and Fitzgerald a media hero and left-beloved celebrity for the rest of his life. But he didn't, and indeed stressed even in his remarks yesterday that he was not accusing Libby of "knowingly outting a covert agent."

Now I suppose there's always the possibility that Fitzgerald is throwing the book at Libby in order to coerce him into turning state's evidence against Rove, Cheney, and even the President himself. That would reflect an ambitious prosecutor who is also sufficiently professional to make sure that his ducks are in a row before going after the big fish. But there seems to be little chance of "Fitzmas" coming even that belatedly:

Question: Mr. Fitzgerald, this began as a leak investigation but no one is charged with any leaking. Is your investigation finished? Is this another leak investigation that doesn't lead to a charge of leaking?

Fitzgerald: OK, is the investigation finished? It's not over, but I'll tell you this: Very rarely do you bring a charge in a case that's going to be tried and would you ever end a grand jury investigation. I can tell you, the substantial bulk of the work in this investigation is concluded.

~ ~ ~

Question: A lot of Americans, people who are opposed to the war, critics of the Administration, have looked to your investigation with hope in some ways and might see this indictment as a vindication of their argument that the Administration took the country to war on false premises.

Does this indictment do that?

Fitzgerald: This indictment is not about the war. This indictment's not about the propriety of the war. And people who believe fervently in the war effort, people who oppose it, people who have mixed feelings about it should not look to this indictment for any resolution of how they feel or any vindication of how they feel.

This is simply an indictment that says, in a national security investigation about the compromise of a CIA officer's identity that may have taken place in the context of a very heated debate over the war, whether some person - a person, Mr. Libby - lied or not.

The indictment will not seek to prove that the war was justified or unjustified. This is stripped of that debate, and this is focused on a narrow transaction.

And I think anyone's who's concerned about the war and has feelings for or against shouldn't look to this criminal process for any answers or resolution of that.

This brings us to the political fallout for the Bush Administration, which has to be described as minimal at best. On the one hand the Bushophobes received the "gift" of a high-level Bushie being indicted - not convicted of - lying under oath. They'll try to make whatever hay out of it that they can (Ted Kennedy was calling it "the worst thing since Watergate," thus confirming the progress of his descent into pickled senility), but it's difficult to see that "hay" amounting to much. Nobody outside the Beltway knows who the hell Scooter Libby is - heck, before the past few months I had never heard of him - and Fitzgerald's unequivocal demurral of any connection of the indictment to the left-wing urban legend of a "conspiracy at the highest levels of this Administration to expose Valerie Plame, to reveal that she was an undercover agent....as a way to punish Joe Wilson and to send a chill to all others who might criticize the Bush White House" has to be the last thing the Bush-hating seditionists wanted to hear.

The argument can be made that the White House was foolish to acquiece to this investigation of "neoWilsonian" mythology in the first place. Doubtless it was done to try and kick this matter beyond the 2004 election, but that just created the potential spectre of an early-second term eruption like Watergate or Iran-Contra. That the Administration has, in all likelihood, dodged a bullet that it fired at itself, speaks to the probe's needlessness and the professionalism of the "invisible stalker" who didn't get carried away - much - and did his job.

It is no solace for Scooter Libby, though, to whom I can only say, "Godspeed," and, "There but for the grace of God go I."

UPDATE: In the latest edition of the Weekly Standard, Stephen Hayes points out the GWOT policy paralysis the White House created for itself by siccing a special prosecutor onto the Plamegate non-issue:

[I]n one very important sense, the critics are right to assert a connection between the case for war in Iraq and the Fitzgerald inquiry. It is this: For the better part of two years, as the case grew from a routine Justice Department inquiry to an independent investigation conducted by a no-nonsense special prosecutor, the Bush Administration gradually ceded the debate over the Iraq war to its harshest critics. These two developments are not coincidental....

Of course, nothing is more important than winning on the ground in Iraq. Demonstrating that we are killing terrorists and making steady progress on the political front will do much to blunt the criticism of the war. But if the White House refuses to challenge its critics, and refuses to explain in detail why Iraq is the central front in the war on terror, and refuses to discuss the flawed intelligence on Iraqi WMD, and refuses to use its tremendous power to remind Americans that Saddam Hussein was, in fact, a threat, then it risks losing the support of those Americans who continue to believe that the Iraq war, despite all of its many costs in blood and money, was worth it.

The Bushies' chronic inability, or unwillingness, to sell sound domestic and foreign policy has always been their chief shortcoming. But it was always at least somewhat mitigated by the boldness, and rightness, of the policies they were unable, or unwilling, to sell. That boldness has been missing ever since the President did his aircraft carrier photo-op two and a half years ago, and the lack is becoming seriously debilitating to his political relevance not even a year into his second term.

Perhaps with "Plamegate" finally behind them the Administration can regain the fearlessness that characterized its early years. Between the looming entitlements apocalypse, the approaching bird flu pandemic, Iranian nuclear belligerence, and "backstage" ChiComm scheming (hell, just read Peggy Noonan's anxiety attack from Thursday's Wall Street Journal), and with three-plus years still left to serve, they're going to need all the boldness they can muster.

[HT: Powerline]