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Dodging CIPA Graymail Bullets…And Other Legal Notes


I’ve been a bit busy the last few days (and still am, as well as being exhausted and missing my peanut…again), but after taking some time to do a brief roundabout on the legal news of the last coupla days, I am compelled to jot a few notes on the doings in a few courtrooms.

First, the NYTimes article from David Johnston this morning.  (And a hat tip to Holden for the heads up on the article.)  If Luskin is coming out and saying publicly that they got a letter from Pat Fitzgerald which says that Rove will not be charged, there are two things that I want to see and know:  (1) what does the letter actually say, word for word; and (2) does it say something along the lines of "Please thank Karl for his cooperation in this matter." 

Johnston has always seemed to have good sources within the Luskin/Rove camp (although, frankly, who didn’t last year when Luskin may have called every reporter in the universe).  So it’s not surprising that Luskin would pick the NYTimes as his outlet for announcing news of a letter freeing-up Rove (if, indeed, that is what it fully does…although, I have to say, in all honesty, as an attorney you would never make an announcement like this without something in hand from the prosecutor which purports to say this — you’d never be taken seriously in any other case otherwise…).

Here’s what the article does say:

The prosecutor in the C.I.A. leak case on Monday advised Karl Rove, the senior White House adviser, that he would not be charged with any wrongdoing, effectively ending the nearly three-year criminal investigation that had at times focused intensely on Mr. Rove.

The decision by the prosecutor, Patrick J. Fitzgerald, announced in a letter to Mr. Rove’s lawyer, Robert D. Luskin, lifted a pall that had hung over Mr. Rove who testified on five occasions to a federal grand jury about his involvement in the disclosure of an intelligence officer’s identity.

In a statement, Mr. Luskin said, "On June 12, 2006, Special Counsel Patrick Fitzgerald formally advised us that he does not anticipate seeking charges against Karl Rove."

Well, that’s a bit of overhype, frankly. Rove was not the only person that Fitzgerald was looking at in the grand scheme of this investigation. And to spin this as the case being over is laziness on the part of David Johnston — and the media writ large, frankly — who have never dug into this case to realize that the players were larger than the Libby and Rove narrative frame that the corporate media types have conveniently used throughout the investigation.  And that the be all and end all of the case was not the ultimate criminal charges, but the exposure of the smarmy underbelly of the Bush Administration and their standard MO of attacking, with a vengeance, anyone who dares to question them — even when those questions are not only appropriate but also expose them in a lie.

I’ve said this before, and I will say it again: unless and until I hear it from Patrick Fitzgerald, the investigation continues to be ongoing. Which means that there are still potential developments down the road, should the evidence (like handwritten marching orders on the Wilson op-ed in Dick Cheney’s handwriting) lead there.

And I’ve also said this, and it is worth a reminder:  Patrick Fitzgerald and his team are career professionals.  You do not charge someone with a criminal indictment merely because they are scum.  You have to have the evidence to back up any charges — not just that may indicate that something may have happened, but you must have evidence that criminal conduct occurred and that you can prove it.  You charge the evidence you have, you try the case you can make, and you don’t go down a road that will ultimately be a waste of the public’s money and time once you have ascertained that the case is simply not there.  It doesn’t mean that you don’t think the SOB that you can’t charge isn’t a weasel or guilty as hell, it just means that you can’t prove it.  (And, fwiw, those times are the worst of your career, because you truly hate to let someone go when you know in your gut they’ve done something wrong.)

Jeralyn has been saying all along that she thinks that Rove cut some sort of cooperation deal.  I really want to see whatever wording was in (Luskin’s words) the letter from Fitzgerald before I get too far down this road on the what’s going on speculation.  And I’m hoping that some enterprising reporter…cough…Murray…cough…will get the scoop on just what IS going on with all of this.

In his statement Mr. Luskin said he would not address other legal questions surrounding Mr. Fitzgerald’s decision. He added, "In deference to the pending case, we will not make any further public statements about the subject matter of the investigation. We believe that the Special Counsel’s decision should put an end to the baseless speculation about Mr. Rove’s conduct."

But it was evident that Mr. Fitzgerald’s decision followed an exhaustive inquiry into Mr. Rove’s activities that had brought the political strategist dangerously close to possible charges. In October, when Mr. Libby was indicted, people close to Mr. Rove had suggested that his involvement in the case would soon be over; speculation about Mr. Rove’s legal situation flared again in April when he made his fifth appearance before the grand jury.

Hmmm…interesting that Luskin, who has blathered about town about every hangnail that he’s ever witnessed on any person involved in this matter suddenly clams up, isn’t it? And that he mentions the ongoing investigation…and that he limits his comment on speculation to Rove and Rove alone. (Although, he is Rove’s paid attorney, so that does make sense in a "you pay my hourly rate and the other guys don’t" sort of way.)

Here’s what I do know:  Karl Rove has been moved out of his palatial White House digs into a smaller, windowless room across the hall.  Joshua Bolten has been wielding more and more influence with Bush of late, and Rove has slunk back into the background for the moment.  In DC, loss of power and influence — even if it is only the perception of it — can be a painful thing.  But for Rove, the most painful thing of all would be for the Democrats to re-take Congress.  Guess what I’m going to be working on for the next few months?  Help me mete out a little justice in the form of a Democratic victory this fall, won’t you?

And Dick Cheney?  Well, his worst nightmare is anyone finding out about what he has been doing the last five years, hence all the secrecy and the selective classification and such.  Won’t his time on the witness stand be precious?  And wouldn’t he just looooove a Democratically-controlled House and Senate?  Oh, if ever there were incentive to work your ass off for the Democratic candidate of your choice, this is it.

(And, yes, I will be working sources on this to see what I can find out.  In the meantime, take a little while and think about what you can do to help the Dems re-take Congress.  It’s a proactive step that all of us can take to give Karl and Dick and George and their posse of malignant cronies a nasty case of heartburn…)

On another front, Pat Fitzgerald and Team Libby (or Team Irving, as looseheadprop so lovingly named it) had another status conference in front of Judge Walton yesterday.  The news pickings are sparse — with only an AP article to go on at the time of this writing, and no transcript for the forseeable future (since court reporters have lives and I’m not forking over a bazillion dollars for an expedited copy…).  I will, of course, update this when I get more information, but the read on the AP article looks pretty reasonable. 

Here is why I say that:

The special prosecutor in the CIA leak investigation said Monday he doesn’t expect the White House to attempt to block Vice President Dick Cheney’s former top aide from using classified intelligence material in his defense to perjury charges.

Special Counsel Patrick Fitzgerald told U.S. District Judge Reggie B. Walton that the White House has designated certain documents that it is concerned about being made public during a trial.

If those documents are among those that I. Lewis “Scooter” Libby wants to prepare his defense, Fitzgerald said, he and Libby’s lawyers will work out solutions with the judge in secret under a law designed to deal with defendants’ access to classified government information.

It seems that Fitz and John Cline, the Team Libby graymail legal expert, have already identified and narrowed some of the issues that are likely to be controversial for the White House in terms of classified information. And it sounds to me from the quotes that Tony Loci has put into his AP article, that Fitz and his team have already formulated some strategy to end-run a number of these problems in some fashion, so that the potential disputes between the two sides are narrower still.

We’ve known all along that the multiple requests for Presidential Daily Briefings (PDBs) were going to be not only controversial and unprecedented, but also a hot spot for potential graymail defense arguments.  That these seem to have been undercut substantially by the summaries thereof (and good on Judge Walton for that stroke of genius) makes the remaining issues a bit easier to dispose of one at a time.  (For those catching up on this case, I did a review of graymail and CIPA issues here.)

Some news in the article on a couple of fronts other than the CIPA/graymail issues.  For starters, Fitzgerald has informed the WH of his proposed witness list and said the following:

Fitzgerald also said he doesn’t anticipate any fights with the White House over witnesses he plans to call at Libby’s trial in January. Fitzgerald has indicated that he might call witnesses ranging from Cheney to former White House Press Secretary Ari Fleischer and former State Department official Marc Grossman.

“The White House is aware of the witnesses we intend to call … and the subject areas,” the prosecutor told Walton. “This is not a crisis that is looming. I want to assure you of that.”

One has to wonder if the WH has said that Cheney will be expected to testify if subponaed. And, if so, one has to wonder further what Cheney thinks about that…and wouldn’t that have been a fun conversation to watch as Bush, Bolten, Cheney and Addington discussed whose political future and legacy was the more important one to protect in the grand scheme of things if, indeed, Cheney is on "the list."

Also, Team Libby may be wavering on the memory defense now.  And it was already looking fuzzy before we even got to this point.  Buried at the bottom of the AP article was this snippet

Cline also told Walton the defense has not yet decided whether it will call an expert on memory to testify at trial.

A key to Libby’s defense is whether a jury should believe what NBC’s Tim Russert, Time magazines’s Matthew Cooper and former New York Times reporter Judith Miller remember about their conversations with Libby – or what Libby recalls telling them.

Perhaps Team Libby has been testing the theory on mock juries and found it wanting. Or perhaps Cline just got the full peek at all of the various means that Libby was using to track each and every thing that Joe Wilson said and did, and the means used to dig into Amb. Wilson’s background…and his wife’s as well.

I’d sure like to see what Fitz has but, if Team Libby is indeed wavering, it ought to be an awfully interesting trial.  On to Libby Defense Theory 3.0 anyone?

In another case entirely, but one that I wanted to note because it is on an important set of issues, a federal appeals panel in Manhattan sharply quizzed lawyers for the CIA about their withholding of documents pertaining to authority given to the Agency to interrogate "detainees" in the aftermath of 9/11.  The questions pertained to whether the government was using a "government secrets" designation for the information not so much to protect national security, but instead to cover their own asses and the asses all the way to the Oval Office, potentially.

In an Administration where secrecy has become the standard mode of operation, avoidance of political embarassment should never, ever be allowed as the motivation for governmental secrecy.  There must be a compelling national interest to counterbalance the public’s right to sunshine in the dark nooks and crannies which are in sore need of oversight.  But that accountability has been stymied again and again by selective classification.

This case bears watching…especially given that all of us, every single citizen in this nation of ours, is responsible for actions taken in our name.  As such, we have a right to know if our government is taking actions which we would neither approve nor condone.  And the Bush Administration has no right to maneuver the laws in order to play CYA because they got caught with their hands in the torture jar.  Good for the appeals court for taking an interest in this.

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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