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Popping the Trial Balloon


Joe DiGenova has been busy floating trial balloons again.

Speculation about a pardon began in late October, soon after Special Counsel Patrick Fitzgerald unsealed the perjury indictment of Libby, and it continued last week after Fitzgerald chose not to charge Rove.

"I think ultimately, of course, there are going to be pardons," said Joseph diGenova, a former prosecutor and an old Washington hand who shares that view with many pundits.

"These are the kinds of cases in which historically presidents have given pardons," said the veteran Republican attorney.

The White House remains mum on the president’s intentions. Spokeswoman Dana Perino declined to comment Friday.

Bush has powerful incentives to pardon Libby, however. They range from rewarding past loyalty to ending the awkward revelations emerging from pretrial motions, a flow that could worsen in his trial next year.

Funny that Newsday fails to tell its readers that all that pardon speculation in October came right out of the mouth of…Joe DiGenova, the Boris of the Boris and Natasha Republican shill duo that includes his shrill wife Victoria Toensing, who has also been periodically flogging the "pardon our dear Scoots" malarky.  (Oh, and Bill Kristol batted the balloon around as well on Faux News Sunday this weekend, but his heart wasn’t really in it.  It was kind of maudlin, actually.)

And by beginning its article with the headline "Pardon Talk for Libby Begins," Newsday is just flat out lying.  Here’s an article from the TPMMuckraker on the issue from back in April, and it is but one example of many from the various teevee and print pimping that Boris and Natasha have been doing since the investigation began.

Josh had some thoughts on this, and about DiGenova not clearly being labeled as the GOP shill that he is, but I dug up a few choice quotes from DiGenova that I think speak for themselves. 

For example, Boris has said repeatedly (as has the lovely Natasha) that a perjury and/or obstruction and/or false statements charge just isn’t done.  Except that it is — and he should have known so, given his trial experience:

"The lesson of the Goltz case is that perjury in civil cases is prosecuted and it’s prosecuted right here in the nation’s capital, not too far from the White House, by the president’s own Justice Department," said Goltz’s lawyer, Joseph E. diGenova.

DiGenova said he tried unsuccessfully to dissuade prosecutors from bringing the case on the very grounds Ginsburg is asserting – that perjury in civil cases is rarely, if ever prosecuted. "I was told that sometimes perjury in civil cases is important and we have to send a signal," diGenova said.

Said Mark H. Dubester, the assistant U.S. attorney who prosecuted Goltz: "Perjury is really a crime against the courts. You’re vindicating the process. You have to have the oath mean something. Otherwise, it means nothing."

Goltz is an unusual case, but by no means the only time federal prosecutors have brought perjury charges arising from a civil lawsuit. In Wisconsin last week, a former partner in a prestigious Wall Street law firm went on trial for lying under oath in a bankruptcy proceeding by failing to disclose that his firm also represented some of the bankrupt company’s creditors.

Now, granted, this was a criminal perjury case based on false statements which were made under oath in a civil matter — something that is prosecuted with even less frequency than a criminal perjury matter. And yet, lookie there, Mr. DiGenova was right there in the mix on that case — and found the prosecutor’s conduct to be a matter of importance to protect the integrity of the system. Well, how do you like them apples? Of course, that was all the way back in 1998, when the laws had to be fully enforced against a Democratic Administration. He can’t be expected to remember that and remain consistent to something said all the way back then in the heat of partisan combat, now can he?

Except there is this, from June 13, 2006:

And it’s clear that, when you have an obstruction or a potential obstruction in a case, that that’s worthy of investigation.

First true thing to come out of DiGenova’s mouth in a long time. I have to assume it was an accident.  But he’s absolutely right — not only do you pursue obstruction, lying and perjury, but you also prosecute it to the fullest extent of the law.  Ask Martha Stewart if you don’t believe me.

As to the Fitzgerald investigation and Rover, I’m still waiting to see the letter, Bob.  *tap…tap…tap*

We had quite a discussion about it among the legal beagles who read here in one of last night’s comments threads, and the conclusion at this point is that Fitzgerald has issued no statements closing out the investigation, there have been no defections from his legal or investigative team that would be expected should something untoward have happened in the investigation (and believe me, that DOES happen), and Fitzgerald’s office continues to stick to their "no comment" policy, which has pretty much been in effect from the start of all this (other than the laugh Jane managed to get out of Russell Samborn on the whole Viagra pen issue).

But there is one thing about which I want to be absolutely clear:  prosecutors jobs are not to get even with the people we don’t like, or parties that we think are probably guilty — the job is to dispense justice based upon the evidence and facts before them, and to leverage that evidence, those facts, and potential witnesses and persons involved in a way that maximizes the cause of justice.  As Immanentize said yesterday:

I have told many clients — hundreds perhaps, that there are only three people that can get them out the door a free person. The prosecutor can do it by dismissing. The judge can do it by granting some motions or dismissing. The jury (that third “person”) can do it by voting “not guilty.”

The defense attorney has no power to release a client. Defense attorneys cannot “outsmart” prosecutors, they can onle point out where prosecutors are full of shit. The judge or the jury believes the prosecutor or not. They almost never decide a case based on whether they “believe” a defense attorney. it is simply whether they believe the defense attorney has a good and verifiable point when they argue that the prosecutor is blowing smoke. So, to give defense attorneys the kind of power you suggest they possess is really a few steps away from reality (outside of that portrayed by real actors on prime time TV.)

Now I agree that rich people have a lot more access to the court’s ear than poor people. I have spent the last twenty plus years only representing indigent defendants and it is a huge problem in the system. But the complaint is not that rich people have such great defense attorneys, but rather that poor people do not.

This is absolutely correct. Prosecutors ask for indictments and charges when the evidence warrants it. They should not do so when the evidence does not, even for a smarmy, malignant bastard like Karl Rove. (And yes, that was painful for me to type, but it’s the truth.)

Here is another truth: those of us outside the case can have no earthly way of knowing what exactly is going on inside (unless of course you are Murray Waas, who seems to be omniscient at times). But here is what I do know: the GOP spinmeisters are working overtime to get their side of the story cemented as the conventional wisdom on this case.  Why, you ask?

Because something is going on that they do not want us to know about — and I, for one, sure as hell want to know what that is.  (You want more on this, read this from EPU.  Interesting, no?)

No one works that hard to suppress or downplay or manipulate public opinion unless there is a very good reason to do so.  Here are a few:  (1) Information that is bound to come out in testimony during the Libby trial is very damning, and they are trying to get out in front of it.  (2)  No one wants Dick Cheney under oath and on the stand in front of the public.  (3)  Karl Rove may not have an official deal, but he does have an obligation to tell the truth, the whole truth, and nothing but the truth on the stand — or face perjury charges.  And that is not something he wants to do under any circumstances.  (See Number 2 above.)  (4)  The investigation is continuing, Fitzgerald is chipping away at the evidence, and the spinmeisters want to turn public opinion against him before he goes much further.  (5)  The WHIG is restless….well, you get the point.

Honestly, though, the real reason is that a dis-spirited group of progressive activists who have no hope for change are a group of people that Karl Rove would dearly love to have in his back pocket going into the Fall elections.  You know why?  Because he knows that if the Democrats take back the House and Senate, the whole house of cards and malarky that is the Bush Administration could fall down around his ears.

You want to do your nation a service?  Volunteer for a Democratic candidate and work on their campaign.  Volunteer to be a poll watcher for the election in your precinct.  Volunteer to work on Democratic get out the vote efforts. 

You want to get even — take away their rubber stamp Republican Congress.  And let Fitzgerald and his team do their job.  Whining gets you nowhere.  But wiping the smirk off Rove’s face and that of the Boy King?  Priceless.

Don’t let them manipulate you through their spin.  Instead, let’s go out and kick their asses.  Fitzgerald and every other prosecutor out there are not responsible for political outcomes — that responsibility falls squarely on our shoulders.  It’s time we picked up the damn ball and ran with it, isn’t it?

Oh, and speaking of the WHIG and Cheney and all, don’t forget the Frontline investigative report tonight on PBS.  Someone pass me the popcorn…

PS — In case anyone is wondering about the pardon issue for Libby — I say HELL NO.  You get indicted for five federal felony counts for obstructing an investigation, lying under oath to a grand jury and lying to federal agents, you pay the criminal penalty just like anyone else if you are found guilty.  Period.  End of story.

If the President pardons Irving Lewis Libby, it is because George Bush is too much of a coward to face the information that will come out in the courtroom in a public setting.

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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