Moving the target

Things are winding up, and down, in the Plame investigation. The grand jury's term ends in a week and as we approach that deadline things are moving at a pretty good clip. Depending on who you ask, there will be indictments handed down on this matter. But on what charges?

Moving the Target

As the NY Times reported this week, Special Prosecutor Patrick Fitzgerald is contemplating indictments against both Karl Rove and Scooter Libby: Mr. Rove and Mr. Libby have been advised that they may be in serious legal jeopardy, the lawyers said, but only this week has Mr. Fitzgerald begun to narrow the possible charges. The prosecutor has said he will not make up his mind about any charges until next week, government officials say.

With the term of the grand jury expiring in one week, though, some lawyers in the case said they were persuaded that Mr. Fitzgerald had all but made up his mind to seek indictments. None of the lawyers would speak on the record, citing the prosecutor's requests not to talk about the case.

Associates of Mr. Rove and Mr. Libby continued to express hope that the prosecutor would conclude that the evidence was too fragmentary and that it would be difficult to prove Mr. Rove or Mr. Libby had a clear-cut intention to misinform the grand jury. Lawyers for the two men declined to comment on their legal status.

Though he's not saying much it appears Fitzgerald may in fact indict two key members of the Administration--but not under the auspices of his original appointment: The possible violations under consideration by Mr. Fitzgerald are peripheral to the issue he was appointed in December 2003 to investigate: whether anyone in the administration broke a federal law that makes it a crime, under certain circumstances, to reveal the identity of a covert intelligence officer(the 1982 Intelligence Identities Protection Act).

"Where's the Crime?"

Victoria Toensing who co-authored the act has publicly stated that she believes no law was broken in the matter. In a radio interview this week, she made the case that the CIA was undermining the Administration and the whole affair boils down to politics (something I said three months ago):

VT: Because Fitzgerald's not going to write a report, that means he might indict? He can't write a report. He could stand up an down, turn on his head, wheel around. It's illegal for him to write a report. There's no independent counsel statute, which was the only thing that trumped the secrecy of the grand jury.

JB: So there's no report, and that's meaningless, the fact that he's not going to write a report.

VT: It's absolutely meaningless. It's unsophisticated legal reporting, and I'm embarrassed that the New York Times wrote that kind of story. The Washington Post, you know, I'm not going to let them off, talking about well, there may be a conspiracy to discredit Joe Wilson? Tell me what crime that is?

JB: Yeah.

VT: That's called politics.

JB: Well, yeah.

VT: That's part of the business of Washington.

JB: Well, and if people are attacking you politically, can't you fight back? Is that a crime?

VT: Well, then is it a crime for Joe Wilson, who lied and told people that the vice president sent him on the mission? He told people he had viewed the forged documents, which he had not? He put out all kinds of lies, and so what happened to people in the White House? I hope they got together. I hope they got together and said, well who is this guy? What does he do? You know, where did he come from? What's going on? And so then it's logical that they found out...when they found out his wife recommended him for the job, which we now know is true that she recommended him for the mission to Niger, why wouldn't they want to put that out? What's the crime?

Indeed. To underscore the point, she offers something at the end of the interview that was, incidentally, left out of her Post piece:

VT: This was the CIA doing a covert action against the president.

JB: Yeah. I believe that.

VT: Now why is it that they would allow Joe Wilson to go over, do this mission, not sign a confidentiality agreement, and then allow him to write about it in the New York Times.

The Finer Point

If the scuttlebut about Fitzgerald's investigation is true, he likewise doesn't believe the act was violated. What then is he going after?

If the Times is correct, it's an after-the-fact attempt at mis-leading the investigation. A complete and utter change in direction.

I'm reminded of many an indignant comment made about the Starr investigation of Whitewater and how that ultimately led us to an impeachment proceeding for perjury, something far afield of the original aim of the investigation. So I'm left wondering whether the same cast of characters and their fellow travelers will miss the finer point in all this.

Is it okay for a special prosecutor to pursue criminal acts outside the scope of the investigation he's charged to make?