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Fitzgerald Investigation/Libby Case Update, Part I


There have been some new filings, some news bits and pieces, and a whole lot of speculation and other pieces of information that need parsing from the continuing Fitzgerald investigation and the Libby prosecution.  What better way to spend my Sunday morning that putting together a whole mish-mash update for everyone, I say.

The NYDaily News had an interesting bit of anonymously sourced reporting and speculation on Saturday that I wanted to hit first regarding Richard Armitage, former Deputy Secretary of State under Colin Powell. and potential witness in the Libby case as well as potential grand jury witness in the continuing investigation.  Here’s what the NYDaily News had to say that I found intriguing: 

Former Deputy Secretary of State Richard Armitage has emerged as a key witness in the CIA leak probe, the Daily News has learned. Armitage has been questioned several times, but is not expected to be indicted by the federal grand jury investigating who outed CIA spy Valerie Plame to journalists in 2003, sources said.

Armitage’s testimony could hurt Vice President Cheney’s indicted former chief aide Lewis (Scooter) Libby, or President Bush’s political guru, Karl Rove.

Two sources familiar with the case said Armitage, Rove and Libby all had contacts with the press about Plame. Unlike Rove and Libby, Armitage appears to have tried to dissuade reporters from writing about her.

Special Counsel Patrick Fitzgerald recently had to sneak Armitage into a Washington courthouse to get past reporters – a sign of his value in the case, according to one source.

Interesting — but it conflicts a bit with some of the previous information we have known about grand jury testimony — a piece of information Jane dug up earlier regarding Judge Hogan, who presides over the grand jury, and his ruling prohibiting "secret" grand jury witnesses:

Up until the summer of 2004 people who testifying before they grand jury were often brought up in some secret back elevator to avoid press scrutiny, and I suppose that’s how they wheeled in Novak’s coffin undetected. But around that time Judge Hogan ruled that everyone who appeared before the gj had to walk in the front door (and wouldn’t I love to to know the series of events leading up to that). Anyway, from that point on it pretty much guaranteed that if someone was having an official Fitz gj interlude, the press knew about it.

So either Judge Hogan has changed his mind, Fitz got a special dispensation with regard to Armitage’s testimony or the NYDailyNews source got that point wrong. Or maybe a different judge is presiding over the current grand jury and has decided that the freight elevator is okey dokey as a witness conduit for secret grand jury witnesses and the special prosecutor’s team again — in which case, game on baby, because there have been weeks of speculation on what might or might not be going on and THAT would raise a whole helluva lot of questions, wouldn’t it? (You’ll pardon me while I don’t hold my breath on getting specific answers to these questions from Russell Samborn, Fitz’s spokesperson or any court personnel — they don’t talk about grand jury proceedings because they are bound by law to keep them secret.)

I seriously doubt that the judge decided to go backwards in terms of "secret witnesses," but I throw it out there as a possiblity only because the NYDailyNews has raised it.  We’ll try very hard to get an answer from someone on that — but as far as I have been able to find, there are no public orders issued from Judge Hogan or any other judge which contradict the previous order.  But again, we’ll definitely look into it and get back to you.

Anyway, the NYDaily News article goes on to say that Armitage has been cooperating with Fitzgerald’s investigators and the legal team since the inception of the investigation — which, if true, could explain some of the inside track information that Fitz has gotten, given Armitage’s placement at the dividing line between Powell’s State Department and Wolfowitz, Rummy and Cheney’s neocon cabal and the WHIGs. 

This article ties into some anonymously sourced bits from Steve Clemons earlier in the week on Armitage as well — and I point this article out because the discussion in the comments on anonymous sourcing and the CIA Leak investigation reporting is quite good, and I thought everyone would like a look, as much as for the Armitage speculation.  This piece knocks down the earlier speculation from Bobby Inman that Steve reported about Armitage, by the way — and doesn’t it seem like it’s been a busy week for Armitage speculation, in general?  Doesn’t it make you wonder why that is — who is floating this out?  Why now?  What is being signaled — and to whom?  By whom?

I, for one, feel like I’m running around in circles trying to chase down all the "what ifs" involved in the Armitage speculation that has gone on thus far.  Is he Woodward’s source?  Maybe, maybe not, yes, definitely not, etc., etc.), and I’ve decided to just throw out there what we have at the moment and give everyone a chance to be on the same page while we wait for actual answers from Fitzgerald and his team — who, honestly, are the only folks at the moment other than Armitage — who isn’t talking on the record about any of this — who know exactly what Armitage is or is not doing in terms of cooperation and/or testimony and/or culpibility.

UPDATE:  As John Casper points out in the comments, emptywheel has some Armitage discussion going on at Next Hurrah that is certainly worth reading and contemplating as well.  I hadn’t seen it when I was writing this morning, and really appreciate the heads up.

Speaking of running around in circles, we’ve gotten a lot of questions about the Leopold articles from last week — and all the possibilities about Rove being indicted or not and what is going on now, etc., etc.  Tim Grieve of Salon spoke with Mark Ash of about the reporting, and I wanted to post a link to the discussion for everyone.  (H/T to Jeralyn for catching the interview.)

I talked a little bit about legal questions that I had on this in comments the other day, but I wanted to reiterate one in particular here:  when you have a "sealed indictment," it is sealed — as in not publicly available — for a reason.  We used them a lot in drug conspiracy cases, where you had evidence of lower level people but were still working the investigation up the chain, and you would indict a lower level dealer when you had evidence on them, seal the indictment so as not to tip off higher level dealer/distributors, and then unseal the entire batch of indictments if and when you completed the investigation or you had to make an arrest on someone you thought was going to flee the jurisdiction. 

Once you talk about an indictment that is under seal with anyone, you break that seal and the information contained within the indictment can become public.  Which, frankly, defeats the whole point of having a sealed indictment in the first place.

Now, how this fits into Jason Leopold’s reporting is murky in my mind — because I have no idea who his sources might be on this and how much legal knowledge they might have and/or what they may have said to him or how they said it.  iAnd it is awfully tough reading someone else’s anonymously sourced tea leaves, to be perfectly honest.

As a prosecutor, you often prepare what is known as a "bill of particulars" (at least, that’s what we called it in my jurisdiction, anyway) or a draft indictment for review by the grand jury prior to asking them to indict someone.  The draft is a sort of blueprint of the evidence and chanrges that you want to emphasize the the jurors as what you’d like to see indicted — but the grand jury gets to vote on each charge separately and can make changes and/or amendments as they see fit when they deliberate and vote. 

It is entirely possible that this sort of draft may have been shown to Rove’s legal team — although you don’t usually do so, since it is the province of the grand jury to decide on charges, not the prosecutor, and you try not to imply otherwise since that would be overstepping your bounds and prosecutors really try not to do that.  At least, I did anyway.  (But I have absolutely no evidence that this happened through any of my sources — I’m just throwing it out there as a possible thing that may or may not have happened, so please don’t everyone run around thinking that it did happen — just that it may be one possible explanation on last week’s rampant speculation aroudn the blogosphere, and that’s all.)

That doesn’t mean that you don’t discuss with defense counsel prior to seeking an indictment that his/her client is facing charges under a number of potential areas of law — and would they like to discuss a potential plea to what is known as an "information" (or list of charges to which the defendant pleas rather than be indicted — it’s like the list that they would have seen in an indictment, just usually lesser than the whole list that would have been requested fromt he grand jury, in exchange for whatever plea agreement is reached, including cooperation and testimony most often). 

But again, not knowing who any of Jason’s sources were/are, it’s impossible to say if this was meant or something else or what.  I agree with Jane that I think it is wonderful that Jason offered to out his sources if they proved to have steered him wrong.  That’s way more than we ever got out of La Diva Judy and her WMD debacle, so I guess we’ll have to wait and see what happens with that after his announcment that he would out any sources that steered him wrong during a radio interview.  From the Salon interview, it looks like that’s not going to happen any time soon, since they are taking a wait and see attitude after again speaking with their sources and monitoring what they see in the Fitzgerald investigation, but I wanted to throw that out there since I hadn’t commented on that aspect yet.  (Joshua Frank has more thoughts, from a self-confessed "friend of Leopold" perspective, which I also wanted to note here for our readers.)

As I have repeatedly said here, I have had no sourcing to tell me that the reports are valid or invalid — although I would note for the record that there was no official announcement on any of this from Fitzgerald and his team last week — so I’m just watching the news and reaching out to my sources — as is Jane — as we go along.  

Which, considering its a secret grand jury investigation with incredibly high political stakes and a lot of behind-the-scenes rumors and backstabbing and machinations that would make Machiavelli blush, is a lot to sift through on any given day, even as we wait to see what the ongoing investigation may or may not turn up in the end.

As someone who spent a helluva lot of her life dealing with the criminal justice system, I can tell you that investigations can take a long, long time — but when the pieces fall into place, things can go pretty quickly after that.  I honestly have no idea what stage Fitzgerald is at in this investigation — wish I had some secret, inside track on that, but I don’t have one other than reading Murray Waas’ excellent tea leaves along with the rest of you — but I promise that if we hear news on that front at any point from sources that we consider reliable and solid, you guys will be among the first to know.  More to come in Part II…

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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