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Some Thoughts on Fitz, Rove and Things


We’ve had quite a flurry of activity since everyone found out that Karl was going back before the grand jury — under oath, for testimony, for a fifth time.  The coverage in the news has been interesting, to say the least, and there have been lots of dropped hints and spin jobs from the Luskin and pals camp, but nary a word from Patrick Fitzgerald. 

I’ve gotten a couple of questions as to why this is, and I wanted to take a moment to make this clear:  Fitzgerald and his team are bound by the grand jury secrecy rules.  They cannot make any statements of any kind with regard to proceedings, testimony, or otherwise unless and until an indictment is issued against one or more persons — and then they are only able to discuss the information contained in the indictment(s) and related matters pertaining to the indictment(s).


Defense counsel have a lot more leeway in this sort of situation (although most are smart enough to know that conflicting public comments can come back to bite both you and your client in the ass at some later time).  Witnesses to the grand jury are free to discuss their testimony after they testify.  Prosecutors might prefer that they do not — especially if it could be a tip off to persons who may not know they are under consdieration for indictment — but there are no restrictions on public discussion once a witness has testified.  (Which makes Luskin’s statement that Rover was unable to discuss his testimony due to grand jury secrecy issues all the more interesting, doesn’t it?)

Yesterday, there were a couple of comments that got lost in the rush that I wanted to bring to everyone’s attention — partially because they illustrate several points well, and partially because I got e-mails about them asking some questions that I wanted to address.  The first was from Veritas78 in the Spin Me Right Round thread:

If Fitz didn’t have Rove, he wouldn’t bother. He’s got him.

Fitz can read a calendar. And he knows what this bunch did, and what he can prove. Yesterday was Meet The Weasel You’re About to Indict Day.

What impresses me most about Fitz is the silence. Prosecutors (Nifong!) take note—this is a superb tactic. You gain the trust of the judge, you “out” the defense as the spinners, and you frighten the hell out of everyone, including potential witnesses. It’s just plain brilliant, and best of all, it goes by the letter of the law. Hey, how ’bout that!

Note that Ken Starr was not smart enough to know this.  (emphasis mine)

A couple of comments: first, it is highly likely that the members of the grand jury wanted to get their own look at Rove on the witness stand. It’s tough to make a decision on indictment for perjury when you weren’t the grand jury who saw the perjury actually occur, so you might want to get a feel for what sort of weasel (or not) a particular person might be.  Or maybe the grand jurors themselves had some questions from lingering issues. 

Either way, I think it is correct to say that being asked back in person before the new jurors isn’t good news for Rove — if it had just been a matter of tying up a loose end or two, they could have done that in Luskin’s office in about an hour over coffee.  Nope, Fitz has something more — and my guess is that he won’t be afraid to use it if all the pieces fall into place.  I keep wondering if perhaps this latest squeeze on Rover isn’t some signal to another player in this mess that they had best jump on board the deal train or they are next.  (Hadley, anyone?)

As to the silence issue, Fitzgerald and his team are bound to follow the law.  That this also works for them tactically is a side benefit — and it does work, believe me, after watching people sweat through grand jury terms, it really is a useful means of pulling the rats out of the woodwork.  That it is so remarkable after watching the Starr team leak like a sieve any chance they got is all the more useful for Fitzgerald.  Someone in DC with some self control seems all the more rare after the hooker-o-rama news from the Duke Cunningham case yesterday, doesn’t it?  (And ergh, what a mental image that is.  Bleh.)

Which brings me along to the second comment that I wanted to highlight this morning.  This one is from reader Mamayaga, who gives us a little glimpse:

Yesterday when I was flying back from DC to Chicago, I was sitting in the waiting area at National Airport, reading Jane’s recap of Rove’s history with the GJ on my Blackberry. It was late afternoon, the usual intercity shuttle crowd was gathering, when I glanced up from Jane’s disquisition to see none other than the tall man in the rumpled suit himself walking in my direction. I had no doubt who this was, flying home after a hard day on the road. If you’ve seen his picture as often as any FDLer has, there is no mistaking Patrick Fitzgerald in person. Fitz parked himself in front of the TV and watched VERY intently as CNN explained to him what he’d done with Karl that day. A rather surreally fractured moment, my reading Jane explaining Fitz to me while Fitz watched CNN explaining Fitz to Fitz. And in his attaché case were probably the documents that would set all of these stories straight — oh to have had Xray eyes!

I wanted to but didn’t go over and tell him how much I appreciate the service he is doing for the country (I’m more than a bit shy). One man in the waiting room did recognize him and spoke and shook his hand. I just sat and beamed somewhat involuntarily in his direction. I’m kind of an old lady so I can indulge in that kind of dottiness.

The thing that struck me about Fitz was his seeming to be completely un-self-conscious. I fly in and out of DC fairly often and when I do I play “Count the Congressmen.” They are easy to pick out in the crowd – middle aged men in expensive suits who clearly have their who’s-watching-me-now radar turned way up high. Even just waiting for a plane these guys are completely on stage. There was none of that about Fitz. He watched CNN, checked his messages, sat in what appeared to be contemplation of his day. It seemed that no more than two people in the crowd knew that this was the man who had just slow cooked the Rovester over a smoky fire for four hours on our behalf, and in doing so may very well have saved our system of lawful democracy.

This is a tiny story, just the “wow” reaction of someone who’s spotted a celebrity and not a whole lot more: Fitz travels in coach like a good government employee, he carries his own bags and apparently takes the El home. He sat in the emergency exit row, undoubtedly ready to render assistance to any and all should the plane have to bail. He’s quite boyish looking, and you might guess he was younger than his mid-forties except for the bald spot in back which gives him something of a monk’s tonsure, appropriately enough for someone with his reputation for devotion to his life’s work.

I was amazed again while at the baggage claim in Chicago seeing this whole passel of travelers standing around attending to their small businesses completely unaware that a key actor in the fate of our country was standing there as well, retrerieving his CTA fare card, getting a piece of gum, checking his messages again, and most likely revisiting the lies told to him all afternoon by the Rasputin of American politics. Don’t know if he noticed the aging groupie beaming at him across the baggage carousel, but I hope some of the good vibes reached him and helped speed him on his way.

I got a snotty e-mail from some wingnut who pointed to this comment and talked about how Fitz only wanted to see himself on tv. Well, that could not be more wrong — as a prosecutor, I had to do interviews as a course of my work. The public has a right to know what is going on in trials and such, and you have an obligation to do those interviews — but they are never a fun time and you never get past how your voice could sound better or your hair looked awful or whatever — because you are a human being just like anyone else.

What Fitzgerald was doing was watching the other side’s spin.  It’s useful on multiple levels:  it gives you an idea of where they are headed tactically, at least with their public press maneuvers; it is something you have to monitor to see if there is a need for a gag order in the case if they go to far; if a witness has cut a deal, you have to monitor what they say or their representatives say in order to ensure they are living up to their end of the bargain…the list is pretty much endless.  But let’s just say there are numerous reasons to monitor the leaks in this case, not the least of which is that you want to think about how they will play to other witnesses/likely defendants who also are on the hook.

Having never had a case this enormous, I can’t really speak for Fitzgerald and how he is dealing with all of this.  But I can say that when you are in the middle of a huge case — my last one was a very involved murder trial — the details of the case become everything, and the outside malarky just falls by the wayside a lot of the time.  But you also struggle to have some semblance of a life around the edges, some time to sit back and take a deep breath or have a glass of wine and a nice dinner with friends or any of those things that makes all the hard work have meaning for you.

Here’s hoping that Pat Fitzgerald and his entire team get those moments around the edges.  And that this feeling I’ve been having that something is coming like an inevitable bulldozer toward Karl Rove is right.  I’m trying not to get my hopes up too far — the wheels of justice can turn very slowly indeed — but this has been a very interesting week, and the signs are not looking so good for Karl (or Scooter) at the moment. 

Guess we’ll see — but ultimately, whichever way this case goes, this is the way a prosecutor conducts himself — with dignity and respect for the process and for the law.  Good on you, Pat Fitzgerald, and your entire team, for playing by the rules and not making it about ego on your end of things.

(Picture from the indespensible Dubyasworld.)

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com