10/22/2005

Whiskey Bar: Will the Grinch Steal Fitzmas?

Will the Grinch Steal Fitzmas?

John Dean -- who knows something about these things -- has some cautionary words for all the little lefties eagerly counting presents (indictments) under the tree: Don't be entirely surprised if "Santa" leaves a lump of coal in your stocking.

Dean's been extremely prescient about the legal issues raised by the Plame scandal so far -- he was, for example, the first to point out the possible applications of the 1917 Espionage Statute. So when he raises the spectre that national security (the last refuge of executive branch scoundrels) might trump whatever evidence of criminality the special prosecutor has gathered, I give him a respectful hearing, even though I don't agree with this analysis. Here's what he says:

It is difficult to envision ...

Dean adds the caveat that if Libby, Rove or other as-yet unindicted co-idiots perjured themselves or conspired to obstruct justice (and in Libby's case, that looks like the smart way to bet) Fitzgerald may decide to stick around and nail their asses to a jailhouse wall.

If you read Dean's entire argument -- it starts after the subtitle "Who Will, And Who Won't, Be Indicted?" -- you'll see that he's puts a lot of weight on the enormous latitude the law and the criminal justice system have traditionally given the executive branch in national security matters. Unless it can be shown that Cheney et. al. acted in pursuit of some private, venal motive, Dean argues, Fitzgerald may decide his writ simply doesn't extend to an affair that is, after all, deeply entangled with the conduct of foreign policy and the prosecution (no pun intended) of the war in Iraq.

In other words, instead of blowing sky high, the volcano may simply snore loudly, roll over, and go back to sleep. And as Dean points out, since all the testimony Fitzgerald has collected is covered by the grand jury secrecy laws, we may never know what he found.

One can easily imagine the howls of protest on the left, and the smug satisfaction on the right, should this come to pass. It would be particularly bitter finale for those of us who all along have regarded the Plame outing as a proxy for the more fundamental crimes committed along the march to war in Iraq.

Unlike some (see Justin Raimondo's last two columns, for example) I've never had more than a forlorn hope that Fitzgerald would delve into the Niger forgeries, the Chalabi connection, the Office of Special Plans, the Downing Street Memos or any of the other investigative leads into the heart of the neocon conspiracy. Nor have I seen any evidence -- or even plausible speculation -- that would lead me to believe Fitzgerald has expanded his probe beyond the immediate matter at hand: the leak of Valerie Plame's identity and CIA affiliation. But, like most hardcore Cheney administration haters, I've been content with the busting-Al-Capone-for-tax-evasion metaphor. To paraphrase Donald Rumsfeld: You go to war with the indictments you can prove, not the ones you'd like to prove.

Dean, however, seems to think it will take an exceptionally flagrant example of "tax evasion" to persuade Fitzgerald to go after the White House conspirators on cover-up charges.

We'll see. But I think Dean is wrong this time, even though he's right to warn against the overheated rumors now chasing each other through both Left and Right Blogostan. I think Fitzgerald is poised to indict, and while the list of defendants may be short -- Rove, Libby plus a few lower-level munchkins -- I think the charges will be both broad and numerous, including unauthorized disclosure of classified information, theft of government property, conspiracy, obstruction and some combination of perjury and/or false statement charges. I wouldn't even be surprised if the Intelligence Identities Protection Act rears its serpentine head after all -- depending on the means, motives and opportunities of Bob Novak's second source.

If I am wrong, if Fitzgerald really does pack his tent and steal away, it will be because the war on terrorism -- and the Bush Justice Department's relentless campaign on behalf of the Divine Right of Presidents -- has turned the clock back to an earlier era, when the criminal justice system took an even wider detour around executive branch powers, both overt and covert.

Ironically, it was Dean's old boss who started removing the roadblocks. When Nixon tried to derail the Watergate investigation by invoking a fraudulant national security excuse ("Get these people in and say: 'The President believes this is going to open the whole Bay of Pigs thing up again.' ") he called the entire doctrine into question. The subsequent CIA and FBI scandals took the process even further, until it reached its peak in the Iran Contra affair, when prosecutors, judges and juries proved perfectly willing to convict some fairly senior officials for crimes directly related to the conduct of foreign policy. And if George I hadn't whipped out his pardon pen, they might have reeled in some even bigger fish.

Fitzgerald will have to decide whether those post-Watergate precedents still apply, or whether 9/11 rolled back the clock, returning him (and us) to the old Cold War days of near blanket immunity for national security decision makers. Much more than the nuances of the perjury statute, I think the answer to that question will decide whether Karl Rove stands trial.

But, while I've seen nothing that suggests the special prosecutor is digging into the shitpile of the neocon conspiracy to wage aggressive war, I've also seen nothing to suggest he's backing away even one inch from the more mundane crimes of the "get Joe Wilson" slime campaign.

Ultimately, as Dean notes, these are all matters of prosecutorial discretion. But my own sense is that if Fitzgerald believes Karl Rove, Scooter Libby or any other government official deliberately used classified information as a weapon to retaliate against a critic -- what's more, one who broke no laws and violated no secrecy agreement by speaking out -- he'll go after them with every legal weapon at his disposal. I think, or at least, hope, Fitzgerald understands that when an administration turns the vast national security powers of the U.S. government against its own citizens, for purely political purposes, it sacrifices any claim to privilege or protection.

Whiskey Bar: Will the Grinch Steal Fitzmas?

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