Prosecutor Patrick Fitzgerald is an Imprudent Man

Sunday, October 30, 2005
Some people contend that the law must always be enforced. Nothing could be further from the truth. The exact opposite is the reality of the situation. No society can survive if a hyper legalistic approach to the law is the norm. Every prosecutor must occasionally take a chill pill and cut some slack. If nothing else, many statutes remain on the books that have not been enforced for years. A number may even contradict each other. Prudence is mandatory. The spirit of the law must dominate its letter. This is especially true when dealing with matters as nebulous as state secrets. Daniel Patrick Moynihan blasted the temptation of intelligence agencies to even classify information that was readily available in our daily newspapers.

Patrick Fitzgerald foolishly decided to investigate, in a nitpicky manner, whether anyone might have violated the somewhat vague statutes concerning espionage. He wanted everything to be either all black or white. Every “i” was to be dotted, every “t” had to be crossed, and no shades of gray were to be allowed. Somebody inevitably was going to be prosecuted. Scooter Libby may very well feel like a victim in a Franz Kafka nightmare. Tomorrow, it might be our turn.

13 comments:

MeaninglessHotAir said...

I would advocate that the letter of the law must constantly be upgraded so as to be in concordance with the spirit of the law. Without that, the law becomes--through selective enforcement on the part of law-enforcement agencies--an instrument of injustice, subject to the whims of our masters in blue suits rather than the People.

For this reason I believe that all laws should be enforced uniformly so that public outcry causes them to change.

David Thomson said...

We do not live in a utopian universe. Yes, we should “advocate that the letter of the law must constantly be upgraded so as to be in concordance with the spirit of the law.” This, however, is an unattainable goal in a perfect sense. Some gaps will unavoidably remain. At the end of the day, a prosecutor must still rely on common sense.

Charlie (Colorado) said...

David! You mean to suggest that a government employee would misuse their power out of ego, pique, or overzealousness?

Oh, perish the thought!

ambisinistral said...

The always has to be judgement when enforcing laws. Zero tolerance sounds good in the abstract, in practice it leads to a different set of pproblems.

I find it ironic the the Special Prosecuter law was allowed to lapse by Congress because of the Whitewater fiasco, and here we are with a Special Prosecuter following a similar path -- wandering far enough off topic to find an indictment.

David Thomson said...

Patrick Fitzgerald may be a very moral man. I have no reason to conclude otherwise. He could, though, be overly scrupulous. Honest people sometimes do not know when to cool their heels. Telling the truth becomes an obsession to the point of absurdity. A question like “Is the floor clean?” might discombobulate them. They may feel a conventionally clean floor is still dirty because one cannot eat off of it.

Syl said...

David

I don't know, but I'm getting a little tired of your grousing about 'overzealous' prosecutors.

Fitz didn't ask for an investigation.

But stuff like this is always weighted against the indictee. He testifies in front of the gj without counsel. There is nobody to present an opposing view. Evidence leaning the other way is often discarded.

Guilt or innocence is then left up to a jury trial.

But, again, fitz didn't start this.

The New York Times and the Dems were screaming for one after the referal by CIA to the DOJ. The whole thing might have just gone away, except some overeager beaver leaked it to Andrea Mitchell.

And take heart, I don't think Libby lied at all. I think he didn't remember which reporters he talked to and exactly what he said. He was explaining the mental state he would be in if he heard info that was gossip and not from an official source.

He couldn't let the reporters know he knew it officially, because anything said would be taken as a confirmation of the info.

Libby was protecting the classified info...not leaking it.

It even explains Libby saying 'I didn't even know he had a wife'. That was not something he was saying to the gj, it was something he would say to Cooper.

And just because he didn't actually say that, doesn't mean he was lying because he deals with this kind of stuff every day and that's exactly the type of thing he'd say to someone.

Libby wasn't saying he learned about mrs. wilson from reporters first, he learned it unofficially from reporters.

Every bit of Libby's testimony makes sense in that light. I hope his lawyer is smart.

The inconsistencies are only his version of what was said vs the reporters.

And we can't fault Fitz for not seeing this. Libby never explained it.

But more importantly, fitz has no reason to think the reporters (read Russert) have any reason to give false or misleading testimony because fitz is constrained by DOJ rules in questioning journalists.

Thus, there's no way in hell fitz would have a clue that reporters were actually discussing mrs wilson behind the scenes.

As I said, I hope Libby has a good lawyer. This 'I forgot' strategy isn't good enough.

All I see here is fitz doing his job. I don't think he was overzealous at all.

Now it's up to Libby to explain classified info handling to his lawyer and to a jury and it will all work out.

BTW, I believe Cooper was truthful. There's no discrepancy in the Cooper conversation. Only that Libby said he said more than he did. The basic meaning remained the same.

Syl said...

"Daniel Patrick Moynihan blasted the temptation of intelligence agencies to even classify information that was readily available in our daily newspapers."

Did you know that just because a piece of classified information appears in public that does not mean it is or should be automatically de-classified?

Although the government does tend to overclassify, being zealous on the cautious side, there is a reason to classify certain articles in major newspapers (defined as those whom foreign agents find major).

Little tidbits of honest-to-god classified data get printed. Journalists may yell about the outing of an agent and yet they're not always careful themselves about what gets in print.

Now these agents who see a juicy tidbit in the paper do not know whether it's true or not. It might be disinformation, they just don't know. But it gives them a clue sometimes as to where to start looking for confirmation.

The government tries to check these all out...no, they don't need referrals to justice unless it's something big, egregious, or political...if they find the damage would be minimal they sometimes forget it. If the info was spread around far enough, and the damage was not minimal, they'd try to identify the leaker. If the damage and spread was wide enough, then they'd de-classify.

But that takes man hours and man power. This stuff accumulates over time.

Hence there's a ton of articles still classified.

I wouldn't get terribly concerned about it. There's usually at least a partial explanation for most everything.

Syl said...

Ambi

?I find it ironic the the Special Prosecuter law was allowed to lapse by Congress because of the Whitewater fiasco, and here we are with a Special Prosecuter following a similar path -- wandering far enough off topic to find an indictment."

No. The Independent Prosecutor was allowed to lapse. A Special prosecutor is nothing like that.

The Independent Prosecutor was tasked to conduct an utterly thorough investigation, and to prove the investigation was thorough and uncovered all the rocks, it had to be transparent and he had to issue a report at the end.

This meant that the testimony and evidence concerning people who were never indicted for anything, was made public.

That's why it was allowed to die. It wasn't fair to the innocents involved.

The Special Prosecutor by law cannot issue a report. And his investigation is kept totally secret. The prosecutor and the members of GJ are not allowed to leak.

Witnesses aren't under that constraint.

Fitzgerald's mandate was quite restricted and he didn't go outside of it.

David Thomson said...

“As I said, I hope Libby has a good lawyer. This 'I forgot' strategy isn't good enough.”

The case against Scooter Libby is so weak that it shouldn’t even go to trial. There is no conceivable way that a prosecutor is going to persuade twelve jurors of his guilt. Only one dissenter is needed by the defense. Libby’s attorney merely needs to constantly remind the jurors that his client had no reason to lie.

terrye said...

Syl:

I read today that Cooper is saying he does not even know if there was a crime in all this and he did not feel that Libby lied to him.

It is hard to believe that a man could get in this much trouble for "Yeah, I heard that too."

I understand what you are saying, but I think that if we are smart enough to figure out that Libby was just trying to do his job Fitz could have figured it out too if he tried hard enough.

This is a man's freedom we are talking about here and that is no small thing.

I hope Andrea Mitchell is proud of herself. The DoJ could have handled all this just fine with the circus and pony show.

terrye said...

that should be 'without the circus and pony show'. preview shmeview

David:

I see no way they can come to a verdict of guilty beyond a shadow of doubt, but then I think the whole thing is absurd anyway.

We have drug dealers selling meth out of the back of pick up trucks out in the sticks and the law can not seem to do a damn thing about that, but the tax payers can spend a million bucks to ruin Libby's life because he was caught between a rock and hard place.

ambisinistral said...

Syl,

You're right. I was sloppy in my use of words. However, I do stand by my notion that this investigation seems to have wandered in its search for an indictment.

Peter UK said...

It would appear that the Grand Jury system itself is flawed,if there is no representation,it is almost certain that a slip can be made.It is an antagonistic system open to the charge of entrapment.
Having seen some of the horrendous mistrials perpetrated by law enforcement,I would not put it past them to create an offence where none existed.
In this case Libby had commited no offence until he was questioned,what is this the Star Chamber?