Did Fitzgerald abuse his prosecutorial discretion?

I'm pretty sure that I'm running out of meaningful things to say about the Libby prosecution and verdict.

Still, in response to some very articulate and thoughtful comments on my previous posts, as well as posts and arguments I've seen elsewhere, I'd like to explain why I haven't spoken out strongly yet, one way or the other, on the "prosecutorial discretion" debate.

In the process of getting to that explanation, I first have to address a number of arguments that others have advanced, but that I find unpersuasive, as tending to establish an abuse of discretion on Fitzgerald's part.

And finally, I'll offer up again what is unquestionably an obvious point, but one that I genuinely do think is getting insufficient consideration among many who are debating this topic from either side of it.

I. The relative importance of the investigation of L'Affair Plame and the prosecution of any crimes even arguably revealed by it

The main thing I've had to say in the past on this general subject is that I think whoever was in Fitzgerald's position — whether he or she was regular career DoJ staff whose normal job responsibilities would have included District of Columbia-based crimes or a "Special Counsel" with a particular mandate like Fitzgerald — would have been completely justified in treating this particular case as one demanding more than usual thoroughness.

Even for the United States government, investigative and prosecutorial resources are still limited, and judgment calls have to be made every day about which rock not to turn over, which follow-up grand jury subpoena not to issue, and when to close up one file and move on to the next one. And there are many factors that prosecutors ought to consider when exercising their judgment on those matters. In every case, those decisions are subjective and subject to second-guessing, especially when 20/20 hindsight is applied.

In this investigation in particular, though, I believe that there were extraordinary and compelling reasons for the prosecution to be particularly thorough and particularly diligent and particularly open-minded. In exercising its judgment, the prosecution should have leaned hard in the direction of not shutting down prematurely. And it should have leaned hard in favor of allowing the full adversary system to play out fully, through and including a jury's verdict, rather than aborting that process through a prosecutorial decision to shut things down.

One thing that the trial has unquestionably revealed to the public is the degree to which L'Affair Plame compelled the attention of the Administration at its very top levels. And neither has there ever been any doubt about the furious obsession over this matter among the Administration's opponents, the mainstream media, the blogosphere, and even non-trivial segments of the rest of the public. Whether it should have or not, whether it was originally a molehill or not, it certainly had become a mountain of an issue by the time that the DoJ had to decide how to respond, for example, to the demands that a Special Counsel be appointed.

At the time, I thought that the decision to appoint a Special Counsel was absolutely proper, and I still think that. I say that as someone who had, and still has, a strong opinion that the now-defunct "independent counsel" statute ought to remain on the scrap-heap of legal history.

Nor, considering everything else I've read about him apart from L'Affair Plame, have I heard any reason to think that Patrick Fitzgerald was an inappropriate or unwise choice to serve as Special Counsel. To the contrary, I've yet to hear any remotely persuasive criticism of him outside the context of L'Affair Plame.

Neither am I at all persuaded by people who argue that the investigative and prosecutorial resources expended in L'Affair Plame were disproportionate or not cost-justified. Again, that's very much a matter of judgment, but given the amount of public furor and interest — and the potential effects on public confidence in the justice system of whatever resulted from the investigation — this matter deserved all the resources expended on it. There have been countless drug or organized crime or white-collar crime investigations and prosecutions that were completely off the national radar screens that nevertheless soaked up far more resources than this; I'm not unhappy with the resources devoted to those, either. But dollar-based objections to the Special Counsel team's efforts are, in my opinion, silly and transparent fronts for objections that are really based on other (including political) motivations.

No one can seriously dispute that if the Special Counsel team had shut down without any indictments, there would have been a substantial political firestorm from opponents of the Administration who were predisposed to find, and deeply suspicious of, the proverbial "whitewash." To the extent possible — and total success on this is never going to be possible — this investigation not only had to do justice but to be seen to do justice. No result would ever have satisfied everyone. In this particular case — which unquestionably touched upon many matters of national security having nothing whatsoever to do with Ms. Plame and her particular status — permitting justice to be seen to have been done was going to be especially difficult. So that's yet another factor that ought to have weighed in favor of the prosecution pressing on and turning over more rocks, rather than shutting down early.

II. The length of the investigation of L'Affair Plame

The length of the investigation and prosecution is misleading when examined in isolation. This investigation and prosecution proceeded at an appropriate pace, given all the circumstances.

There was no way that Fitzgerald could complete his investigation of possible charges against Libby — or that he could rule out charges for perjury or obstruction of justice against all of the other potential targets — without overcoming the privileges that were being asserted by Matt Cooper, Judith Miller, and other members of the press. The NYT continues to insist that the most significant ramifications of this case were on the press. (I actually tend to agree that, in the big picture as measured over many years, the righteous and appropriate slap-down delivered to the NYT might be the most important legacy of the case.)

What the NYT continues to conveniently overlook, though, is the DoJ regulations that effectively duplicate the statutory non-absolute reporters' privilege which many state legislatures have enacted. Those regulations required Fitzgerald to first exhaust other means of acquiring equivalent information from other sources before he could even try to compel the reporters' testimony. Those press folks then injected many, many more months of delay into the investigation. Recall, for example, that by the time of the D.C. Circuit's decision on Cooper and Miller, Fitzgerald was reporting that their grand jury testimony was all he was waiting for before effectively concluding his main investigation and either issuing indictments or not. Press lawyers were kicking and scratching to try to get the Supreme Court to stay the D.C. Circuit's mandate (i.e., freeze its decision) pending a decision on their petition for Supreme Court review. Of course Judy insisted on her star turn as Ms. Contempt of Court before she finally testified to the grand jury.

The rest of the key witnesses also had complicated schedules that needed some accommodation: Libby's two grand jury appearances, for example, were separated by several weeks because until the indictment, he was, after all, handling all the duties of the Chief of Staff to the VPOTUS, and Fitzgerald's investigation didn't and shouldn't come before all of the other responsibilities of that office-holder.

And this was far from the only food on Mr. Fitzgerald's own plate. While personally overseeing and staying thoroughly involved in this investigation — it was Fitzgerald, for example, who examined Libby before the grand jury, not some subordinate to whom he'd delegated that task — Fitzgerald was also dealing with the other responsibilities of the U.S. Attorney for the district that includes the nation's third largest city, including other hugely important investigations relating to national security and the global war on radical Islamic terrorists.

III. The absence of other indictments from L'Affair Plame

Some of those who argue that Fitzgerald must have abused his discretion, or acted out of anti-Republican partisanship (hah!) or a slavish desire to placate the Administration's critics (double-hah!) or the press (triple-hah!), point to the indictments he didn't bring. (Some of these same critics also claim that Fitzgerald was acting out of self-aggrandizing motives, i.e., to get a conviction of somebody, not two paragraphs after faulting him for not indicting anyone other than Libby. The simultaneous making of these arguments, even if done under oath, would probably not be perjury, but even when done only on a blog, it is very silly.)

I also find that to be a very unpersuasive line of argument. The fact that two witnesses' recollection of facts differ, for example, is by no means a sufficient reason to conclude that one of them should have been indicted for perjury, and anyone who makes that argument is either very foolish or very disingenuous. Scooter Libby's prosecution didn't depend just on the difference between his purported recollection and Tim Russert's, for example, but between his purported recollection and the recollections of a large handful of other witnesses, key documents, and Libby's own sworn recollection at other times. In every potential prosecution, the prosecutor must constantly be asking himself, "What does the current state of the investigation, viewed through the lens of all my experience, tell me about the likelihood that I'll be able to prove every element of a crime beyond a reasonable doubt?" That includes essential elements like "materiality" to the underlying subject of the testimony, and it also includes the prosecutor's assessment of absolutely subjective matters like the witnesses' relative credibility.

Is it conceivable that Fitzgerald could possibly have persuaded a grand jury to issue other indictments? Oh, sure — that's actually likely, given the number of proverbial ham sandwiches in the District of Columbia. Is it conceivable that he might have obtained convictions of persons other than Libby for things like perjury or obstruction of justice? Well, from an outsider's perspective, that doesn't seem to be inconceivable either. But is it so likely that we can conclude that Fitzgerald's failure to try was an abuse of prosecutorial discretion?

Look how long the Libby jury deliberated, for example, and how many close observers of the trial insist (in what I will stipulate to be well-informed good faith) that there was insufficient evidence even as to Libby. And most of the other targets being bandied about — Russert, Fleischer, Armitage, Rove, Cheney — all have major and glaring holes, obvious even to public outsiders, in any potential indictment against them. It's one thing to toss out a paragraph in your blog about how so-and-so looks as culpable as Libby or even moreso; it's an entirely different thing to get an indictment and conviction based on proof beyond a reasonable doubt of every element of a criminal offense.

With due respect, I've yet to see a serious effort by anyone in the press, or by any of those bloggers, even to outline the elements of an indictment as to any other possible crime or target that would survive an immediate motion to dismiss. Such an effort would require you to identify the statute, and then come up at least a meaty sketch of the names, dates, and places for the events by which you'd propose to prove every element of the crime defined by that statute. Maybe those arguing "so-and-so should have been indicted" lack the competence to frame an indictment, but I think they also lack the law and the evidence. If you're gonna argue that Fitzgerald would-coulda-shoulda, then put up or shut up on the very first step he'd have had to take. Otherwise you're just blowing smoke.

No, I am not remotely prepared to say that Fitzgerald completely and absolutely blew it, to the point of it having been an abuse of his discretion or any sort of credible evidence of bias against Libby, in refusing to seek indictments against anyone else. And that's even continuing to apply my previous remarks to the effect that he ought to have erred, if at all, in favor of letting possible crimes be tested through the full system.

Let's assume, for purposes of argument, that based on the FBI interviews and fact-gathering that had already been done, Fitzgerald was able to conclude with reasonable confidence within days of becoming Special Counsel that there had been no criminal violation in the leaking of Plame's CIA status, or at least that there was insufficient evidence to make it sufficiently likely that he could obtain a conviction for that. Should he have closed down the investigation then, based solely on that, without doing anything else?

Unquestionably not — not unless he was content to have public confidence in the justice system take a huge hit. Recall, you Libby defenders, just how successful Libby's defense was at suggesting that FBI interviews were likely to be biased, inaccurate, and unreliable (as compared, say, to stenographically or electronically recorded grand jury testimony or, better yet, open trial testimony tested by full cross-examination). Remember that this is a system set up to provide increasingly stringent tests for evidence — and what the policeman says he was told might be the end of the story, but it very, very often is not. Again, for purposes that justice not only be done but be seen to be done, would any Special Counsel be justified in running at least some of the key fact witnesses before a grand jury? That's still a secret proceeding, and one that's comparatively likely (in comparison to an open adversary-system trial) to produce distorted results, but at least it's an indication of some further diligence than just relying on FBI agents' notes.

Does that mean the Special Counsel had to put every witness whom the FBI had interviewed under the brighter (but not brightest) lights of a grand jury appearance? That, again, is a judgment call, and it's one that can only be made based on all of the other cumulative results of the investigation to date — including other interviews, documents that have been gathered, and previous grand jury witnesses. Critics of the verdict have faulted Fitzgerald for not having run Richard Armitage before a grand jury, since he's who indisputably first leaked Plame's CIA employment to Novak. And superficially that's surprising. But did Fitzgerald ever have any reason to think that anyone was ever likely to question what the FBI notes already revealed as to what Armitage had to say? At the time when Fitzgerald could have subpoenaed Armitage, was there any crime still being actively investigated that his testimony was material to? I don't think so — and a pretty good indication of that is that neither Fitzgerald nor the defense saw any reason to call Armitage as a witness at trial.

With particular respect to Libby, Andy McCarthy has pointed out that even as of the day Fitzgerald was appointed, there was already a conflict in Libby's sworn declarations to FBI agents and the documentary evidence in his own hand on unquestionably material topics. We don't know, and will probably never know, what other potential subjects and crimes were still being examined by Fitzgerald as he was continuing the investigation through both grand jury testimony and other efforts. But given the verdict, it's pretty hard to argue that he didn't at least have one potential crime that justified at least further investigation.

Finally, keep in mind that to some degree, Libby's trial was itself necessarily a continuation of Fitzgerald's overall investigation. Witnesses were examined far more extensively in that trial than they had been in their FBI interviews or grand jury testimony, and their examination included that from Libby's defense lawyers, who certainly had every incentive to point fingers elsewhere. It was not at all inconceivable that something unexpected would come out of some Libby trial witnesses' testimony that might have prompted further investigation — by FBI agents and DoJ lawyers, and potentially by a grand jury — as to other potential crimes and defendants. One can hypothesize, for example, that many or most of the witnesses in the Libby trial might have offered new evidence that someone else — Rove? Armitage? almost anyone — had obstructed justice or given false sworn declarations on material subjects. It's a mistake to presume, in other words, that Fitzgerald was some modern-day Inspector Javert obsessed only with Libby. The more fair presumption is that Libby was the only blip still on Fitzgerald's radar screen by the time of Libby's trial, and that Fitzgerald was properly focused on proving what the indictment against Libby alleged rather than using the Libby trial as a fishing expedition to look for more crimes and defendants — but that Fitzgerald nonetheless hadn't turned his radar off yet.

IV. You and I can't know everything one needs to know to make a fully informed judgment on Fitzgerald's exercise of discretion

It is simply astonishing how much information is now out in the public domain about L'Affair Plame and the Libby prosecution. Think back just a few years to the various legal fights during the Clinton years: Even the amount of information that was circulating then — and I remember being astonished at being able to read, for example, the Starr Report for myself, in full text, within hours after it came out, including particulars I'll never quite forget about such things as novel cigar usages — is dwarfed by what's now somewhere on the internet about this investigation and this trial. I spent several hours in the last couple of days reading Libby's grand jury testimony, for example, and looking at his handwritten notes that were part of the exhibits. Anyone with access to the internet anywhere in the world could scrutinize the trial exhibits on a day-by-day basis! And there were mainstream media reporters and bloggers of every persuasion and inclination giving minute-by-minute updates during the trial.

(One fairly sharp — and absolutely positively appropriate! — contrast with the Clinton fights, however, is that there were comparatively few leaks associated with Fitzgerald's investigation, including the grand jury process. That is fairly compelling circumstantial evidence, at least in my book, that this investigation wasn't being driven on a day to day basis by political concerns and the 24-hour and weekly news cycles.)

But still: However much even the most avid public followers of all this may have soaked up or dug up, there can be no serious argument from any quarter that any of them have available to them all the information that Patrick Fitzgerald had available to him.

For one thing, he's had access to classified national security information that you and I haven't seen, never will see, and ought not see. For that matter, so has Libby, and (to some extent) so have his counsel. How did any of that affect any of Fitzgerald's judgment calls? I don't know, and neither do you.

But completely aside from the classified national security information, in every prosecution — in every trial — there is always a vast body of information, some of it trivial but some of it potentially important, that non-participants haven't ever seen.

Every case I've ever tried, for example, has had box-loads of stuff — correspondence, memos, legal research, notes and drafts, and mounds and mounds of document production — that nobody outside the case has ever seen. Any trial lawyer will tell you that if your own trial team can maintain even a reasonably good handle on that universe of information, you're doing a fabulous job. If you and your trial team actually have a command of 90% of that material, you're world-class. But no outsider is likely to have a genuine command of even half of it.

I've had the experience of taking over a whole bunch of cases that other lawyers have prepared, and sometimes that they've even already tried, and then preparing that case for further proceedings, appeals, or retrials. It's amazingly common for my fresh set of eyes to find important things that my predecessors missed. But there have also been occasions when I've completely missed important things that my predecessors knew were awfully important, even when I've had their active cooperation and access to their entire files.

The absence of complete information doesn't mean we can't have a meaningful debate on subjects like whether Fitzgerald properly exercised his discretion. But don't kid yourself into thinking that you can genuinely put yourself into his shoes in second-guessing his decisions.

You just can't, and — really and truly — you can't even get very close, even in the internet age and in a case that's gotten the kind of scrutiny that this one has.

V. Even if we knew everything we needed to know, most of us don't have the prosecutorial perspective to analyze it properly

We're all entitled to our opinions, but I'm less inclined, in general, to second guess judgment calls that must necessarily have been the product of intensive training and experience on the part of (to use Dubya's apt if inelegant phrase) the actual deciders. The reliability and credibility of my second-guessing depends on my having that same training and experience. If you ask me, for example, whether Surgeon Y made a good judgment in deciding to sew Patient Z back up rather than dig around for another three hours looking for more tumor, my pronouncement on that is going to be about as meaningful as a coin-flip or a dart throw.

I'm a seasoned civil trial lawyer with broad and deep experience, and before that I had the privilege of spending a year working as an appellate law clerk within the federal justice system. But I've never belonged to the special fraternity of prosecutors. I've never had the opportunity of standing up and saying "Bill Dyer, your honor, for the United States of America." I've been involved in thousands of lawsuits and many dozens of jury trials, but not one of them has ever required me or my opponent to prove our allegations beyond a reasonable doubt. And although I've had awesome, sometimes crushing, amounts of responsibility for my individual clients, I've never had the exact kind of pressures that all prosecutors have to some degree, and certainly not the kind of pressures that top-level senior prosecutors in an international media fishbowl must handle.

I'm probably in a better position than most non-prosecutors to pretend that I know what a reasonable prosecutor might do in any given set of circumstances. But that's really a conceit on my part. I used to think I was as good at fighting bad guys as Roy Rogers, too.

Before you burst a blood vessel over what Pat Fitzgerald did or didn't do, ask yourself just how much experience you actually have to be drawing confident inferences.

Do I feel confident enough in my own assessments on L'Affair Plame that I'd be comfortable, for example, having President Bush act on the basis of my recommendation as to whether Patrick Fitzgerald ought to be fired as a U.S. Attorney or promoted to the next high-ranking position in the Justice Department? Hell, no; and God save these United States from me being the decider on that sort of issue!

VI. So far, Fitzgerald has indisputably won every significant fight he chose to pick in L'Affair Plame

We all cherish the freedom that lets us debate and persuade and disagree with one another over all these issues relating to L'Affair Plame and Scooter Libby. We're all entitled to have, and voice, opinions that Fitzgerald indicted too few people, or too many; that the jury was too harsh or too timid; that the reporters were heroes or villains; and that Bush/Rove + Cheney/Libby & Co. are either devils or the last bastions of our protection from terrorists who'd love to behead each and every one of this blog's readers. That's all well and good.

But we also live in a society that has defined institutions charged with effectuating the (capital letters alert!) Rule of Law. We justifiably celebrate those institutions when they keep our society from degenerating into military coups d'etat or bloody fighting in the streets. If you believe in those institutions — in things like the basic systemic integrity of the FBI and the DoJ and the grand jury process and the full range of federal trial and appellate courts and the jury system — then you have to pay due attention to the results of their processes.

So it's unbecoming — it's disingenuous — to leave out of the debate over Fitzgerald's exercise of his discretion the indisputable and obvious fact that so far, he's won every single major fight that he and his team chose to pick in the investigation and prosecution of crimes out of L'Affair Plame, including but not limited to the most important one yet, that being on four out of five counts in the Scooter Libby jury trial.

If Fitzgerald was absolutely, positively abusing his discretion, failing in his job responsibilities, incompetent, or otherwise screwing the pooch, you would expect that in at least some of these fights, he'd have had a set-back. You'd expect that Judith Miller would have left jail in a parade with a brass band escorting her home, instead of in a U.S. Marshals van en route to the grand jury proceedings. You'd expect that one or more of the multiple indictment counts would have been bounced in pretrial proceedings, or through directed verdict during the trial. That's happened quite a bit in a great many high-profile federal prosecutions — recently and locally, for example, in the fallout from the Enron collapse, in which the prosecution is struggling to stay above the median batting average for Major League Baseball outfielders. (I think they're still comfortably above the median batting average for National League pitchers.)

As in every trial, the Libby defense team won on a few motions and objections and discretionary rulings from the court; if they hadn't, that would be strong evidence that Fitzgerald and his team were complete wimps who weren't doing their jobs as trial advocates in the public interest. But to the best of my knowledge, on every single major fight against every opponent in the investigation and prosecution of crimes in L'Affair Plame, Patrick Fitzgerald is batting 1.000. And batting 1.000 in a multi-fight legal war just isn't typical even for very good, very conscientious federal prosecutors.

That impresses me, friends and neighbors. And it does so absolutely in proportion to my respect for the system in which Pat Fitzgerald has been operating.

The combat isn't done yet. If, as Fitzgerald's critics insist, the Libby verdict is fatally flawed in some or all of the many ways they now argue, then it ought to be set aside in whole or in part — either by the trial court in response to Libby's motion for new trial, or by the U.S. Court of Appeals for the D.C. Circuit (yes, that same court that made Judy testify and that yesterday struck a massive blow for conservative Second Amendment proponents), or by the U.S. Supreme Court. But if that doesn't happen, there are only three possible conclusions to draw: (1) Fitzgerald did a righteous job; or (2) the entire system broke down in this instance; or (3) the entire system ought to be trashed.

I'll tell you right now that I'm incapable of being persuaded of choice (3). That would rock my world and require me to conclude that my whole career has been a farce, and that's just not going to happen. Go argue that over at Democratic Underground or wherever.

As between (1) and (2), I'll reserve judgment pending Libby's appeals. But personally, I'm leaning pretty hard toward (1) for now.