Tuesday, October 18, 2005

Kristol's prediction that Rove and Libby will be Indicted

I'll go out on a limb: when I hear crap like this, I assume that Rove and Libby won't be indicted.

Since Fitz is not an independent counsel, no report is required (or expected) if no indictments are handed down. Thus, it's all covered up.

That's what I'm expecting.

This smells like a build-up of tension in order to yell loudly when "nothing" happens, much like lowering expectations in the run-up to a debate so if your Bush happens to put two sentences together, he's hailed in the (corrupt) media.

I would love to wrong, of course.

19 Thoughts:

Blogger Demotiki said...

Doug,

I think you may be wrong, although I have as little to go on as you do. I looked over conspiracy and it's a pretty easy standard to meet, so on those grounds I suspect Fitz. can get and indictment. We shall see, the information will flood out after the Grand Jury is over, that alone is reason for cheer. Remember the "Delay Defense," - 'you can indict a ham-sandwich.'

Tuesday, October 18, 2005 12:03:00 PM  
Blogger GodlessMom said...

I really hope you are wrong. I read/heard somewhere recently that even if Fitzgerald does indict, Gonzales would have to approve those indictments. Is that correct? Is there any way that Gonzales would block the legal process at that point?

Tuesday, October 18, 2005 1:08:00 PM  
Blogger Doug said...

Demo: I sure hope I'm wrong, believe me!

GM: I'm not sure how it works, actually...Demo might know. Fitz works for Gonzales, but I think it'd be political suicide for Gonzales to get in the way.

Tuesday, October 18, 2005 1:12:00 PM  
Blogger pawlr said...

Raw Story has just posted that John Hannah, senior aide to both Cheney AND Bolton, is cooperating with Fitz in exchange for not facing prosecution.

I share Doug's caution, but this is looking bigger every day - and all indications seem to be that Fitz is going after WHIG and the whole process by which the Iraq war was "marketed".

Check out Firedoglake for a daily roundups of the investigation.

Tuesday, October 18, 2005 1:57:00 PM  
Blogger pawlr said...

Even more buildup: Cheney to resign?. Either its a set-up for whiplash or the Bushies are deep in the shit. Take your pick.

Tuesday, October 18, 2005 4:41:00 PM  
Blogger Doug said...

I, for one, ain't saying jack until I see indictments.

Tuesday, October 18, 2005 5:02:00 PM  
Blogger Demotiki said...

Doug,

As for Gonzales, he has no power whatsoever to interfere with Fitz’s activities. Fitz. is a “special prosecutor,” appointed to look into criminal wrongdoing in the executive branch. The office of the special prosecutor was created because lawmakers wanted to isolate those investigating wrongdoing in the federal government from political pressure. However, Republicans have abused the power of special prosecutors (Star) to CREATE political pressures.

Perhaps the most famous special prosecutor was Archibald Cox who’s request of the Nixon Tapes lead to the “Saturday Night Massacre” when Nixon forced his Attorney General and Deputy Attorney General to resign when they refused to illegally fire Cox to prevent the subpoena of the Whitehouse Tapes. The man Nixon ultimately found to fire Cox was none other than Regan’s unsuccessful Supreme Court nominee, Robert Bork.

Of course we have no idea since I am not on the grand jury, but I strongly suspect there will be serious charges. I can't see how a first-amendment-happy judge would put Judy Miller in jail unless he learned from Fitz that there was a very good probability that the information she had would lead to indictments. Now that she has spilled the beans, I suspect the dominoes will start to tumble.

There is a tendency to believe that somehow Judith Miller was able to testify without helping Fitz to build his case. However, remember who you are talking about. Fitz knows his job. He had 85 days to figure out how to trap her in her own lies and is privy to a vast amount of corroborating information that she can’t possibly know about. I would be very surprised if Fitz failed to get what he wanted to from her.

I for one can’t wait to find out . . .

Tuesday, October 18, 2005 7:32:00 PM  
Blogger Doug said...

He's a special prosecutor, but not an independent counsel. That law was allowed to expire, so the "Saturday Night Massacre" scenario -- or some quieter version of it -- is possible.

Unlikely, I'm sure, but possible.

We'll all see, soon, I imagine. Unless he convenes another Grand Jury for another 18 months (the main reason Dame Miller found principle.)

Wednesday, October 19, 2005 8:24:00 AM  
Blogger pawlr said...

More info from Kristol today, make of it what you will.

"The net has been cast wide," Kristol told Fox News Tuesday. "Lots of junior aides have testified. It’s been a very comprehensive investigation by the prosecutor. I think there will be indictments and the mood is pretty bleak in the White House."

I'm hopeful these assclowns will get what's coming to them, but not overconfident. I'm with Doug, though. Lets wait until the indictments.

Wednesday, October 19, 2005 11:41:00 AM  
Blogger Demotiki said...

Doug,

No, your are not correct about that. He can't be fired, period.

Andrew

Wednesday, October 19, 2005 6:04:00 PM  
Blogger Demotiki said...

Doug,

Yes, the law is no more, but DOJ regulations (which have the force of law) took up the exact same form. Here it is from Westlaw. . .

28 C.F.R. § 600.1

CODE OF FEDERAL REGULATIONS
TITLE 28--JUDICIAL ADMINISTRATION
CHAPTER VI--OFFICES OF INDEPENDENT COUNSEL, DEPARTMENT OF JUSTICE
PART 600--GENERAL POWERS OF SPECIAL COUNSEL
Current through October 13, 2005; 70 FR 59974


§ 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and--
(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

Wednesday, October 19, 2005 6:13:00 PM  
Blogger Demotiki said...

Doug,

This is the part of the regulation that speaks to whether or not the AG can fire Fitz. As you can see, he can only fire him for "good cause." That means that should his reasons be found to not be "good cause" by a Federal Judge, then the "firing" would not be allowed. Since Fitz. is always on the straight and narrow, it would never happen. Maybe if he was bangin' hookers in chambers or something. . .

§ 600.7 Conduct and accountability.
(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

Wednesday, October 19, 2005 6:24:00 PM  
Blogger Doug said...

Apparently, even section 600 doesn't apply to Fitz, as you can see here.

At least according to the GAO, on the authority of the acting Attorney General (Comey) who appointed Fitz to this case in 2003:

"In February 2004, Acting Attorney General Comey clarified Special Counsel Fitzgerald's delegated authority to state that the authority previously delegated to him is plenary. It also states, 'Further, my conferral on you of the title of Special Counsel in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 CFR Part 600.'" (Wikipedia, Patrick Fitzgerald -- that note lead me to the doc mentioned above).

So that's good news. But this is the GAO's counsel's opinion on the matter, expressed in order to OK the use of basically unlimited funds by the executive.

Fitz is actually NOT an outside counsel. He's an acting US District Attorney. Reading between the lines of this GAO report -- which is a Congressional budget auditing agency (the analog to the OMB -- Office of the Management of the Budget -- in the executive to some extent) -- I think the notion that Fitz is not an outside counsel obviates all of section 600, including that disciplinary section.

What I don't know is whether the Admin will agree if the shit hits the fan, or whether some trumped-up charge ("violation of Departmental policies" or "conflict of interest") will be thrown out there.

Anyway, we shall see. I'd feel a whole lot better if we had renewed the independent counsel law, as I would like the whole story in a report regardless of whether indictments are handed down or not. That we will not get if indictments are not handed down. Which sucks, as it leaves everything up to the honesty of one man (and his office, which has been unprecedentedly tight-lipped). Not a good situation, even if it goes well this time.

Wednesday, October 19, 2005 11:09:00 PM  
Blogger Demotiki said...

Doug,

Did you read my post?

You are correct in stating that Fitz. is an acting US District Attorney. However, we all know this to be completely irrelevant to his current charge as an independant council which, despite your averments to the contrary, he is. And, despite what you claim, he IS covered under Section 600, look it up, oh, I forgot, you don't have Westlaw. . .

I am not sure that I agree with you that we would be better with the Independant Council Law. I didn't like how it was used against Clinton when the Republicans in Congress appointed Star to try to reverse the results of a national election. The current form allows a great deal of independance while at the same time giving the AG the opportunity to fire a special council like Star who was obviously not acting in good faith.

None of this matters, Fitz is the most powerful man in America, at least until he hands down the indictments. Nobody in their right mind would fuck with him. Let's just sit tight and wait. Good things come to good boys and girls at Fitzmas time.

Friday, October 21, 2005 12:05:00 AM  
Blogger Demotiki said...

Doug,

This might be the source of your confusion. Fitz. is a Sec. 600 Special Council who nominally reports to the AG. However, the AG in this case as Asscraft, who had to recuse himself. Therefore, Fitz. reported to Comey instead. Here's a bit from the BBC from when he was appointed.

Now that AssCrack is out of the picture, the current AG becomes the boss under Sec. 600 who could fire Fitz. only for "good cause." Although, I don't know if our torture-czar AG has also been recused, he certainly should have been. When it says that Fitz. reported directly to Comey, it doesn't mean what you think it means. Under a different subsection of Sec. 600 it states a very minimal reporting requirement to the AG. Fitz. has broad latitude to keep the AG out of the loop if he feels that's necessary for his investigation.

The one thing you have to keep in mind is that a man like Fitz. can really fuck with a your mind. These witnesses are really bright people so they are even more vulnerable. They think that they can lie to him and somehow work a story that clears them of blame. Doing this is much much harder than you could possibly imagine. Fitz. is one of the most skilled and intelligent prosecutors in the country and he has a reputation for going far afield to indict. I doubt very seriously that he is sitting on nothing. However, we shall see.

Friday, October 21, 2005 12:19:00 AM  
Blogger Demotiki said...

Doug,

If you stop to think about it, the Office of the Independent Council, as created by the laws that grew out of Watergate, was just a first attempt to deal with a growing problem in our Federal Government. I think it was a good first effort, however, it was flawed in that it allowed for "witch hunts" when the Congress was controlled by a different party than the White House. This created perverse incentives and great acrimony between the different branches of government. The framers felt that infighting between the branches would help protect us from tyranny; however, there was a reason they decided on THREE branches of government, and that was to prevent exactly the sort of unmitigated warfare that existed between Congress and President Clinton. Under the current system, the AG can fire the special council, but only for “good cause” as ultimately determined by a Federal Judge. Either Congress or the Executive can empower a special prosecutor.

Without accepting the current regulations under sec. 600 as a final and perfect solution, I do think it's an incremental improvement over the Independent Council Law that was allowed to lapse. If you go back and read the comments that Democratic lawmakers made at the time, you will realize that they had little love for the old law.

The proper role of the special (independent) council (prosecutor) will continue to be a subject of great debate. However, the old law was a very dangerous political tool that directly lead to the impeachment of a sitting President for the non-crime of incorrectly describing a sexual act. Let’s keep in mind that our nation’s Constitution values protecting the innocent from false charges over the universal prosecution of guilty actions. I see no valid reason why this standard should be lowered in the case of democratically elected officials.

I think it is also worth noting that as far as we know, Fitz. has been capable to doing his job very well so far. Of course the proof is in the pudding.

Demo

Friday, October 21, 2005 1:07:00 PM  
Blogger Demotiki said...

Doug,

Is this the section of the GAO link you sent that leads you to believe that Fitz. is not covered by the Sec. 600 regulations? If so, read it again. It mearly strengthens his role by removing the budgeting restrictions imposed by Sec. 600 so as to "increase his independence."

Since the permanent indefinite appropriation is available for independent counsels, we looked for indicia of independence of Special Counsel Fitzgerald. The parameters of his authority and independence are defined in the appointment letters which delegate to Special Counsel Fitzgerald all (plenary) the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity with the direction that he exercise such authority independent of the supervision or control of any officer of the Department. [13] In addition, Department officials informed us that the express exclusion of Special Counsel Fitzgerald from the application of 28 C.F.R. Part 600, which contains provisions that might conflict with the notion that the Special Counsel in this investigation possesses all the power of the Attorney General, contributes to the Special Counsel's independence. [14] Thus, Special Counsel Fitzgerald need not follow the Department's practices and procedures if they would subject him to the approval of an officer or employee of the Department. For example, 28 C.F.R. 600.7 requires that a Special Counsel consult with the Attorney General before taking particular actions. The consulting requirement would seem to be inconsistent with the notion that Special Counsel Fitzgerald possesses the plenary authority of the Attorney General. The Department also stated it would continue to provide the financial information for Special Counsel Fitzgerald as it has done with respect to other independent counsels appointed under "other law" whose expenses were paid from the permanent indefinite appropriation. [15]

Friday, October 21, 2005 1:28:00 PM  
Blogger Demotiki said...

Doug,

I think you misinterpreted (understandably) a section of that GAO report where it said:

"[a]cting Attorney General Comey appointed Special Counsel Fitzgerald under 28 U.S.C. 509, 510 and 515."

The context within which this point was made was the justification for Fitz's employment and the funding of his investigations, not the powers of his office. If you read the relevant sections that I have listed below, you realize that these were employed in ADDITION to Sec. 600 to make Fitz the special council.

Sec. 509
Summary, How a DOJ employee’s salary is justified and funds available.

Sec. 510
”The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.” - grants the general right for the AG to deligate authority.

Sec. 515
“(a) The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought. - allows Fitz to empanel a Grand Jury despite his lack of jurisdiction. In other words, he can work anywhere for the AG with all of his delegated powers.


(b) Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law. Foreign counsel employed in special cases are not required to take the oath. The Attorney General shall fix the annual salary of a special assistant or special attorney.” - covers the 'salary' of the SP, names him as "special," and states his obligation, like all government officials, to swear an oath of office.

Friday, October 21, 2005 1:42:00 PM  
Blogger Demotiki said...

Doug,

Here's the .pdf of Comey's letter hiring Fitz to be a special council. He also mentions the same sections as the GAO post, however, that doesn't mean that the terms of his employment aren't covered under the regulations for special councils (sec. 600). These regulations just grant the authority to hire someone who will be covered by the sec. 600 regulations.
Fitz. employment letter
letter.
I am going out of communication for the weekend. Have a great one everyone.

Friday, October 21, 2005 3:04:00 PM  

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