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Shuster: Is It Not If, But When?


David Shuster had a catch-up report on Hardball this evening regarding the Fitzgerald investigation and Karl Rove’s numerous trips to the grand jury.  With all the tea leaf reading and big question asking that everyone has been doing surrounding this case, Shuster went to two former US Attorneys for some information and opinion/analysis.

And the word from both former USAttys wasn’t good for Rove.  In their opinion, at least, the fact that Rove has not yet been cleared, even after his unusual fifth appearance for testimony before the grand jury, is a sign that Fitzgerald is seriously considering indictment.  I have to say, and it’s not just wishful thinking on my part, I agree.  Had Fitzgerald been swayed by Karl’s last minute attempt as ass-saving maneuvers, he would have already let him off the hook.

But that hasn’t happened.

According to Shuster, there are serious questions as to whether Fitzgerald believes Rove with regard to his testimony on the conversation with Matt Cooper. This is evidenced by how many times it has come up during questioning before the grand jury — at least via the leaks we’ve had from Gold Bars Luskin and others on Team Karl.  And it was something that Rove expressed to friends after his last round of testimony — that the questioning was detailed and very thorough — you don’t bother with sharp questioning if you aren’t very, very interested in the answers that you are given.

A big consideration for any prosecutor is whether a reasonable jury would find in the government’s favor at trial.  You don’t bring a case that you know is a loser — at least not if you can help it.  You either keep investigating until you nail the SOB, or you don’t bring the case.  The public doesn’t need to have its time or its money wasted on a trial that is a loser from the start — sometimes, it is to the state’s advantage to press a difficult case, because the matter is that important or the stakes for the victim require it (it’s true for a lot of child sexual abuse cases, where you have the word of a small child against an adult, and the odds are rarely in your favor in those cases…but you bring them anyway because it is important to the community.)

But where you have a choice, especially when you are dealing with a prosecution of a high level government official, that indictment needs to be solid and as airtight as you can make it.  It’s just the way things are, and I’m certain that Fitz and his team are being very, very careful to keep mistakes or missteps to a minimum as much as possible.  Scrutiny of the case – being certain that it is thorough and that Fitz and his team feel confident that they can win at trial – is certainly a consideration.

Sol Wiesenberg, who was a part of the Starr investigation team, so he’s no Democratic apologist said that Fitzgerald is likely going through chronologies and transcripts to be certain everything is in order prior to bringing charges. Wiesenberg says he thinks that if Fitz believes that Rove is guilty – even if it is only one count – then he believes that Fitz and his team will file the indictment for that one charge.

Here’s the consideration as a prosecutor:  if you are looking at a potential defendant, and you know in your gut that they have done something wrong — that they have broken the law, that they are trying to get away with it — you don’t let them go.  And you charge them with what they have earned, but even more so, you charge them with what is appropriate to their conduct and that you can prove straight up with a jury. 

Compared to other independent counsel investigations, Fitz’s office is very small, Wiesenberg says. And everyone has other jobs in other offices — Shuster played a clip from the Fitz press conference where Fitz is talking about having a full-time position in Chicago, his former chief investigator was the head of the Philly FBI, all the assistants working with him are from other US Attorney’s offices.  None of them are a full-time staff for this investigation, and his team consists of five total attorneys. 

When you consider that, as well as the flurry of paperwork with which they have been hit by Team Irving (h/t to looseheadprop on that one), you begin to get a sense of the long, long days and nights that each of these people is working, don’t you?  And why this has taken time to meticulously be put together, piece by piece, all the while dealing with stalling and manipulation and who knows what else from those under investigation.

28 days after the last grand jury testimony is not a huge period of time.  That’s how long it has been since Rove testified and, honestly, in investigative terms for a federal prosecutor or even for a state one, that’s not an enormous amount of time to track down all the loose ends, fit them into the whole of the narrative and see how that may or may not change your perspective on charging or not charging.

Shuster says that one thing is crystal clear in all of this: the investigation and focus on Rove continues.  The only question at this point is whether it has shifted from "if" to "when?"

UPDATERaw Story has the full transcript from Hardball and the Shuster segment.

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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