Fitzgerald hit triple, chose to stop at first base

Talking Points Memo (Josh Marshall), the Washington Monthly, among others, have covered the facts very well. (And Josh is keeping his eye on an even larger ball). My comments regarding the indictment are as follows:

FITZ HIT TRIPLE, CHOSE TO STOP AT FIRST BASE:

Patrick Fitzgerald, who said people are fond of baseball analogies and then offered his own, has proven a very cautious prosecutor. This is not bad in and of itself, but the truth is that he chose to "stop at first base" when he had enough evidence to indict Libby and most likely Rove for the felony crime of outing an undercover CIA agent. As a former federal prosecutor explained here, the prosecution under this statute is not as difficult as most people make it appear--particularly with the information that has been released thus far (see Josh Marshall above).

If Fitzgerald is confident that Libby lied, then a jury can find that a person who lies about one material fact can find that everything such a person says can be disregarded. This is a bedrock jury instruction in both civil and criminal prosecutions. A more aggressive prosecutor would have brought the felony substantive charge with these procedural felony charges. This was the prosecutor's judgment call, however, and my criticism of Fitzpatrick is therefore somewhat muted, though it remains a criticism nonetheless.

FITZGERALD UNLIKELY TO GET BACK TO WELL; LIBBY COUNTING ON A PARDON:

If, as Mark Kleiman and some others believe, Fitzpatrick thinks he'll be able to go back to the well for future indictments, he has underestimated the Terrible President and his crowd. If Libby's defense is that "I was too busy to tell the truth about something connected to the most important foreign policy matter my boss, Dick Cheney, was pushing," then Libby obviously believes that if he can stave off conviction and serving time until after the congressional elections of 2006, then lame duck president Bush Jr. will pardon him as lame duck president Bush, Sr., in December 1992, pardoned Weinberger, Abrams, and others from the Iran-Contra scandals.

THIS IS NOT A "MARTHA STEWART" INDICTMENT:

This is not a "Martha Stewart" indictment, however. I have believed, from the start, that the prosecution of Martha Stewart was an example of vindictive judgment by a prosecutor more interested in headlines and "getting" a celebrity than any wiser use of limited legal resources to vindicate an important public policy. What Martha Stewart did was miniscule compared to the corporate malfeasance of others (including true insiders at ImClone who were never indicted) that was going on at the time of the prosecution of Stewart. This perspective does not belittle the charge of obstruction of justice or perjury. It does however constitute a deep criticism of the motives and judgment of the prosecutor in the Stewart case.

What happened in the Joe Wilson-Valarie Plame situation is that top level people in the White House decided to put at risk a CIA agent who worked at a then-undisclosed CIA front, and which agent was undercover at that front. The reasons range from (1) petty and vindictive against the CIA's agent's husband (who was a highly valued employee under Bush's father's administration) for not toeing the son's administration's party line to something (2) even more explosive--the fact that the CIA agent's husband may have opened, through his criticism, a line of investigation into whether the White House knew it was citing unreliable evidence as to whether Saddam Hussein even attempted to purchase nukes in the late 1990s.

This strikes me as far more serious than $45,000 in stock savings on a stock tip from one's broker, which is the gist of the Martha Stewart prosecution.

TIME FOR A DIFFERENT LAW TO PROTECT CIA AGENTS?

Nathan Newman and I had a brief discussion over whether a law that prosecutors have never had confidence in is worth having. With Fitzgerald deciding to "stop at first base," I now agree with Nathan. It is time for all good citizens to revisit "the CIA agent protector" law and investigate whether other laws already protect agents from disclosure (such as anti-espionage laws) and whether we should be protecting whistle-blowers better than we do.

Nathan, however, believes the focus of Fitzgerald's chosen line of prosecution will be on the overall political acts of the Bush administration, presumably due to the vindictive sensibility one gets from the information that has come out thus far. Possibly, is what I say. I think the issue of the motive of vindictiveness comes out even more clearly when the indictment inludes the CIA agent protector law. Nathan is a bright fellow and I deeply respect his perspective.

Regardless of what happens in the judicial process, now is the time, in the legislature, for hearings on repealing the CIA agent protector law in order to find a beteter balance of protecting our nation's undercover agents and yet, allow for protecting whistle blowers when there is official government malfeasance. A hearing on this is timely and effective when several Republicans and their supporters may be wondering this, too.

There is already a left-right coalition against elements of the PATRIOT ACT. Why not at least try to revive that coalition in this instance? I remain skeptical of this proposal's success, admittedly.

CONCLUSION:

Overall, I hope that the principles of protecting CIA agents' identities and the need to protect those who leak information concerning illegal government policies are reaffirmed through this prosecution, as Fitzgerald stated at his October 28, 2005 press conference. Otherwise, I await the Republicans welcoming back Philip Agee with hearty apologies and saying, "All is forgiven."

(NOTE: In the recent past, Barbara Bush had to back off on the charge that Agee had outed a CIA agency chief in Greece who was later killed by Greek anti-government terrorists.)

(Slight edit)