Sunday, October 30, 2005

All's Fine on the Rightward Front (Or Is It?)
The Hidden Columnists--David Brooks Edition (30 Oct)

David Brooks offers his take on this Rashomon-ic viewing (film and effect) of Fitzgerald's indictment of I. Lewis "Scooter" Libby on Friday (as usual, it's behind the Time Select firewall; if you have access to it, here's the link):
On March 21, 1973, John Dean told President Nixon that there was a cancer on his presidency. There was, Dean said, a metastasizing criminal conspiracy spreading through the White House.

Thirty-two years later, Patrick Fitzgerald has just completed a 22-month investigation of the Bush presidency. One thing is clear: there is no cancer on this presidency. Fitzgerald, who seems to be a model prosecutor, enjoyed what he called full cooperation from all federal agencies. He found enough evidence to indict one man, Scooter Libby, on serious charges.

But he did not find evidence to prove that there was a broad conspiracy to out a covert agent for political gain. He did not find evidence of wide-ranging criminal behavior. He did not even indict the media's ordained villain, Karl Rove.
Fitzgerald went as far as the evidence led him. In so doing, he momentarily punctured the wave of hysteria that had been building around the case.
So it's over. One bad apple. Again. And that's that with that.
As it turned out, Fitzgerald's careful and forceful presentation of the evidence was but a brief respite from the tide of hysterical accusations. Fitzgerald may have pointed out that this case is not about supporting or opposing the war; it's about possible perjury and obstruction of justice. But the Senate Democratic leader Harry Reid immediately ran out with some amorphous argument intended to show that this indictment indeed is all about the war.
The question is, why are these people so compulsively overheated? One of the president's top advisers is indicted on serious charges. Why are they incapable of leaving it at that? Why do they have to slather on wild, unsupported charges that do little more than make them look unhinged?

The answer is found in an essay written about 40 years ago by Richard Hofstadter called "The Paranoid Style in American Politics." Hofstadter argues that sometimes people who are dispossessed, who feel their country has been taken away from them and their kind, develop an angry, suspicious and conspiratorial frame of mind. It is never enough to believe their opponents have committed honest mistakes or have legitimate purposes; they insist on believing in malicious conspiracies.

And so it's all down to paranoia on the part of the liberals/progressives, and frankly anyone questioning the underlying motives of this administration.
So some Democrats were not content with Libby's indictment, but had to stretch, distort and exaggerate. The tragic thing is that at the exact moment when the Republican Party is staggering under the weight of its own mistakes, the Democratic Party's loudest voices are in the grip of passions that render them untrustworthy.
Alright, count me in as someone not content with Libby's indictment. And count me in as one of the "paranoid" who wants to unpeel the layers of this rotting onion of BushCo's not-so-forthcoming reasoning for bringing us to the Iraq war. And finally, count me in as someone who looks at the Fitzgerald investigation and sees not finality, but, as Chicago once sang, only the beginning.

Marty Aussenberg (aka Gadfly; he's a current columnist for the weekly Memphis Flyer and a former SEC enforcement lawyer) has a very rational parsing of Friday's indictment events over at the Booman Tribune, an analysis that certainly fits into the liberal paranoid/grasping-at-straws fanatasies that Brooks is denouncing. Still, I found it to be one of the more cogent readings of the legal maneuvering that could potentially be bubbling up to the surface. I recommend a full reading of it, but here are the key points:

Yesterday's indictment was dictated by time more than anything else. With the grand jury's term expiring today, if any indictment was going to be returned, this was the day, and I, for one, don't question Fitzgerald's statement that Libby's obstruction of the investigation prevented him from getting to the truth about the so-called “underlying” charges (e.g., those associated with outing a CIA operative). Indeed, the obstruction charged against Libby prevented the prosecutor from furnishing the one element of the underlying crimes that may be the most difficult to prove: mens rea, as it's known in the criminal law (i.e., a culpable state of mind). But, be assured: the last out in this game is still to come, and the indictment is a shot across the bow for a whole host of characters in this unfolding drama that should indicate to them sighs of relief would be premature.

First, we know that Fitz intends to continue the investigation, albeit with a new grand jury. That's no big deal, since the evidence that was presented to the first grand jury will be available, word-for-word and page-for-page, to the next one for their examination and, if necessary, for further elaboration or elucidation either by the prosecutor or by additional witnesses. In other words, the new grand jury won't be starting from scratch---not by a long shot.

Second, even the fact that Libby wasn't indicted for any of the possible classified-information-related offenses does't mean he still can't be, since the special prosecutor has the prerogative of getting a superseding indictment from the grand jury which is to follow (not unlike what the prosecutor in Texas did in Tom Delay's case). Thus, Libby is still, technically under the gun, and the indictment itself is rife with indications that there is another shoe yet to drop, something Fitz also strongly foreshadowed in his responses to reporters' questions during his press conference. And, of course, neither Rove nor any of a variety of other characters whose participation was described in shadowy terms are, as yet, off the hook.

The indictment makes it clear that Libby was authorized to have access to classified information (Paragraph 1), but also takes pains to point out not only that he was obligated not to disclose that information, but that he had signed a “Classified Information Nondisclosure Agreement” the primary purpose of which was to let its signatories know, in no uncertain terms, that disclosure of classified information would be a big no-no.

Voila! All of the elements, at least of the Espionage Act (if not the Intelligence Identities Protection Act), have been made out in the indictment. So, why go to all the trouble of setting up the factual predicates for violations of the classified information statutes in the indictment (especially when he didn't have to) and then stop short of charging them? The explanation he gave during his press conference (i.e., that he was balancing the interests of the First Amendment with the wisdom of charging the crime) does't fly.
No, the real reason to lay out as much factual detail as he did was for Fitz to show the world (and in particular, the world within the White House) that he has the goods, and that he won't hesitate to drop the dime on some additional malefactors, particularly, Cheney. Let's face it: Libby is only the consigliere to Cheney's don. Even though the threat of spending 30 years in the pokey will be a powerful incentive for Libby to cut some kind of deal that might include turning on his boss, the possibility of the additional charges of revealing classified information, particularly against Cheney, is even more powerful since, presumably, Cheney does't appear to be at risk of a truth-telling-related indictment.


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