Quick first thoughts on the leak indictment
Fitzgerald used a metaphor of a bank robbery. He said that if money was missing from a bank, the investigation wouldn't just focus on a particular statute, such as a wire fraud statute. He said that if the money is missing, you don't just check whether there was wire fraud. Instead, you investigate all the underlying facts and then decide what crimes to charge.
This seems to me disingenuous. The logical order of an investigation demands that you first establish the underlying facts that would support a crime. If the facts don't satisfy the elements of the crime under investigation, you would find another crime supported by the facts, or you would wrap up the investigation. This is just simple logic. For example, in the bank example, you would want to determine early on whether any money was missing. If not, there is no sense in going any further in investigating crimes where taking money was an essential element of the crime. There would be no point. You might then investigate whether there had been breaking and entering. But if the doors were intact and no one had entered the bank, there would be no basis to pursue the investigation of that potential crime.
So I think the bank robbery analogy is a little strained. I don't think Fitzgerald's comments did much to address the concerns I expressed back in July, excerpted below:
"So, hypothetically, if you were named the special prosecutor to determine if anyone violated a certain statute by disclosing the identity of a certain CIA employee, and the statute only applied with respect to an employee who, among other things 'is serving outside the United States or has within the last five years served outside the United States,' would you not as an initial matter determine if the employee in question had been stationed outside the United States within the last five years? I think I would, because if the "outed" employee had, say, been stationed at Langley since 1997, as Valerie Plame reportedly has been, no one could have violated that statute and you could, perhaps, wrap up the investigation and go home. There would be no need to hang out for two years, spend taxpayer dollars, consume grand jurors' time, jail reporters, etc. Oh, I suppose you could make sure no other statutes had been violated, make sure there had been no perjury, obstruction of justice and all that, but perhaps that would be silly.
"What seems odd to me is why Special Prosecutor Patrick Fitzgerald was not able to determine, very early in the investigation and to his complete satisfaction, whether the facts supported the possibility that the Intelligence Identities Protection Act of 1982 (the 'Act') could have been violated by anyone with respect to Valerie Plame. (For that matter, why couldn't the Department of Justice have determined the relevant underlying fact--how long she'd been stationed inside the United States--without a credible suggestion of bias? It must be a demonstrable fact, it seems to me.) What if Fitzgerald had been appointed to look into a murder, and he spent two years digging around, spending taxpayer dollars, consuming grand jurors' time, jailing reporters, etc., and then when public attention began to focus on possible murderers, it turned out that the 'victim' was alive and well? We might ask why Fitzgerald had not simply determined at the outset that the 'murder' victim was not in fact dead, and closed up shop." [LINK]
posted at 12:09 PM
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