You Ask, I (Try to) Answer
Gentle Readers,
If you have questions, I'll try to find answers. Call-sign "Ivy," in comments, writes: So my question is this: Is it really so crystal clear that Fitzgerald won't indict the leak as illegal? Seems to me, that the first thing he should have done was to determine whether Plame/Wilson was covered by the law and if he now says she wasn't, then he should have ended the investigation long ago.
Even if the underlying leak was not illegal--because the statute in question is very technical, drafted for a particular situation and thus hard to break--there is the question of the cover-up. There's that old saying: The cover-up is always worse than the crime. Federal law includes a whole host of statutes that criminalize false statements to federal investigators. My personal favorite is 18 U.S.C. s. 1001, which makes it a federal crime to make a false statement to a federal official, even if the one making the statement is not under oath. There is also perjury, of course, which covers false statements under oath. Even if the underlying revelation--and we still have no idea what happened there, let's be honest--was not illegal, it's still possible that someone committed an offense in the course of the investigation.
If Fitzgerald encountered such conduct in the course of his investigation, should he have ignored it (verb tense might be wrong there, but hang with me)? Well, he certainly had discretion to do so. One thing not fully understood by "lay people" in our system is just how much discretion prosecutors have. But Fitzgerald seems like the kind of guy who really cares about the rules of the game. If certain persons tried to fudge their way out of trouble, and they lied or shifted their testimony in the process . . . he might bring charges. And, in the abstract, one can understand that.
Should he have stopped, if he determined that there was no underlying offense? He was authorized to pursue obstruction and similar crimes.
So he's been authorized to prosecute to the full extent of the law. Should he? That's a question on which reasonable minds can disagree. In one sense, that's why we use this ancient grand jury procedure, which involves discretion on the part of 23 ordinary citizens. In the end, in one sense, 12 of those ordinary people must vote to indict. If this really is a nothing offense, then 12 people can stop this process in its tracks. Or Fitzgerald can.
We'll see what happens.
Btw, nothing here precludes an indictment on the underlying leak. But I have no idea what will happen.
posted by Number Three @ 7:04 PM
2 Comments:
Hey Emery,
I get the idea of the seriousness of the obstruction and perjury charges. I guess what bothers me is that there seems to be this general idea floating about that Plame was really not an undercover agent, and hence was not covered by the 1917 or 1982 laws, and hence it was not illegal to "out" her, no matter what the political motivations. I'm just wondering if this is just Republican noise -- seems to me that this should have been the first thing that Fitzgerald looked in to -- was Plame's identity covered by the 1982 or 1917 laws? I have to believe he did that. The next question then, is can he prove her identity was knowingly leaked? I think that's the problem -- it's very difficult to prove that they "knowingly" revealed Plame's covert status. Thus in the course of the investigation, if some obstructed or what have you, even if he could not "prove" that they "knowingly" outed a secret agent, then it would still be legit to indict on obstruction and perjury.
To put it another way, say, a murder is committed and you have a dead body and evidence of murder. It is obvious that a crime is committed and an investigation is begun. So you interview suspects and they lie to you, so they get charged with obstructing and perjury, but you can never prove they committed murder. The point is, is that there was no question that murder is a crime and that is what began the investigation. It seems to me what much of the press is suggesting is that no crime was even committed at the beginning rather than that a crime can not be proven. There's a big difference. In my anology above, it would be as if you were starting a murder investigation without a body or any evidence of a murder, but in the course of investigating this fictional crime, you got some witnesses to lie. In short, if Fitzgerald is going to have any credibility on perjury and obstruction, he's going to have to say plainly that Plame's identity was covered by the law, but he can not prove she was knowingly outed.
-Ivy
I'm not sure that it's all that hard to make a case that a defendant "knowingly" committed any particular offense. I agree that there's a lot of commentary on this, and one has to remember what happens in run-of-the-mill cases, compared to over-lawyered monstrosities like this case.
I'm also not sure that it matters whether there's a body, to follow your analogy. If I lie in the course of a murder investigation, and it turns out that there was no body, I'm still guilty of a crime.
More tomorrow. (I hope.)
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