Don't Trust Snakes: Further thoughts

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“I know where I'm headed.”

ROGER THORNHILL

Friday, October 28, 2005

Further thoughts

My dear friend just pointed out that we don't know whether Fitzgerald sought an indictment for the underlying leak and then the grand jury declined to indict. This is something I hadn't considered. In formulating my comments below, I had assumed that Fitzgerald got everything he wanted out of the grand jury. I still think it's likely that he did--thinking of Sol Wachtler's most famous comment not made via anonymous greeting card, about how even a modestly competent prosecutor could get a grand jury to indict a ham sandwich. But it is possible that Fitzgerald wanted an indictment for the leak and wasn't able to get one. We may never know for sure.

It seems to me that it could be rather inefficient for Fitzgerald to go to a different grand jury for further indictments. The new grand jury would have to be educated about the case, which as we know involves a great amount of detail. (Criminal procedure / evidence question: can the new grand jury piggyback on the original grand jury by relying on transcripts or recorded testimony, even if the witnesses are available to testify in person before the new grand jury? I would guess the answer is yes just from a process-efficiency standpoint, and also because these witnesses are not subject to cross-examination . . . but I don't know the answer. If you do know, please leave a comment.) This is why I think we have seen the only indictments that will come from this. However, as a writer noted in Salon.com, Rove may have waived his right to be indicted by a grand jury in return for not being indicted today. In that case, he could be indicted later on a complaint from Fitzgerald. Or Rove could be indicted for something other than a federal felony, in which case a grand jury would not be required in order to indict.

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