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Saturday, June 30, 2007

D.C. Circuit releases less-redacted version of 2005 opinion which confirms that Fitz considered charging Rove with perjury

Jeralyn Merritt at TalkLeft asked on Friday (h/t Tom Maguire):

How close did Karl Rove come to getting indicted in PlameGate? As they say, "this close." Check out today's re-issued opinion (pdf) in the Judith Miller - Matthew Cooper D.C. Circuit Court of Appeals subpoena case containing new un-redactions: the name of Karl Rove.

I think she's right, and (with apologies to Jeralyn for excerpting so heavily) I'll quote more of her post to show why.

Now unredacted:

"Regarding Cooper, the special counsel has demonstrated that his testimony is essential to charging decisions regarding White House adviser Karl Rove."

Then on page 39:

"Thus, given the compelling showing of need and exhaustion, plus the sharply tilted balance between harm and news value, the special counsel may overcome the reporters’ qualified privilege, even if his only purpose — at least at this stage of his investigation — is to shore up perjury charges against leading suspects such as Libby and Rove."

The unredaction there is the last two words: "and Rove."

I do have a problem with Judge Tatel's use in this concurring opinion from 2005 of the phrase "shore up," and I look forward to seeing Fitzgerald's less-redacted affidavit when and if it becomes available online. "Shore up" implies that a charging decision had already been made. A more fair description would be "gather and explore evidence pertaining to possible perjury charges," and I'll bet a silver dollar that's closer to what Fitz actually said. (I know there are critics of his who will insist that this is Judge Tatel's "recognition" that Fitz was on a witch-hunt, though.) But in fairness also to Judge Tatel, that's not his assessment of Fitz' purpose. It's a statement that even if that were Fitz' only purpose, it still would suffice to justify overcoming the qualified privilege that Judge Tatel thinks federal courts should recognize to protect journalists' confidential sources.

*******

In the D.C. Circuit panel's fairly short per curiam (i.e., unsigned) opinion on Friday explaining why it was now, in response to an application by Dow Jones & Co., re-releasing more of Judge Tatel's concurring opinion, the court wrote (slip op. at pp. 5-6; citation omitted):

[W]e reject Dow Jones’s request to unseal these materials in their entirety. Even if the Armitage revelation created a compelling public interest in them — and it is unclear to us why, as Dow Jones asserts, the Special Counsel’s knowledge that one individual leaked Plame’s identity calls into question the validity of his continuing investigation into others who may have unlawfully leaked this same information — this is irrelevant given that there is no First Amendment right of access to secret grand jury matters. Rule 6(e) governs what we may or may not release to the public. Insofar as materials concern still-secret grand jury matters, they must remain sealed.

That said, as requested by Dow Jones, we will release those redacted portions of Judge Tatel’s concurring opinion and the two ex parte affidavits that discuss grand jury matters revealed either during the Libby trial or by grand jury witnesses themselves. Although not every public disclosure waives Rule 6(e) protections, one can safely assume that the “cat is out of the bag” when a grand jury witness — in this case Armitage — discusses his role on the CBS Evening News. We think the same is true with respect to the disclosures made by Novak, Cooper, and Rove’s attorney. We unseal the concurring opinion and the ex parte affidavits, however, only to the extent that they have been previously revealed. Grand jury material not yet publicly disclosed will remain redacted.

The panel said, however, that it found special counsel Fitzgerald's suggestions as to what more ought be released "far too narrow," and that it had decided to release more than he originally suggested. I'll have more to say about that below in this post.

*******

One of Jeralyn's commenters asked: "In layman's terms what does this mean?"

I'll reprint here (between dashed lines, but without block-quoting it, and with slight additions) the comment I left there, and then add a few additional comments:

------------------------

It means that Fitzgerald was very seriously considering asking the grand jury to indict Rove as of the time he asked U.S. District Judge Hogan to hold Miller, Cooper, and Time Inc. in contempt of court for their refusal to testify pursuant to the grand jury's subpoenas of them.

He won that fight, the journalists appealed, and Fitz was still considering asking the grand jury to indict Rove as of the time he filed his briefs in the D.C. Circuit.

One of the things that the D.C. Circuit three-judge panel relied upon — as part of their balancing of the grand jury's and Fitzgerald's need for the testimony versus the reporters' desire to keep their sources confidential — was Fitz' assertion that this testimony from the journalists was essential in order for him to be able to decide whether to ask the grand jury to indict Libby. We've known that since the Libby indictment, when the D.C. Circuit, also in response to a Dow Jones petition, released parts of Judge Tatel's concurring opinion that had to do with Libby after he was indicted.

Now we also know that Fitz told the D.C. Circuit at the same time that he needed the journalists' testimony to decide whether to ask the grand jury to indict Rove, too. That was hidden — redacted, or concealed — in the version of the D.C. Circuit's decision that was previously released, in order to protect the privacy rights of people who were under grand jury consideration but hadn't been indicted (like Rove).

We can presume that after the U.S. Supreme Court denied the journalists' petition asking them to overturn the D.C. Circuit's decision, Fitz did eventually (after Judy Miller gave up her defiance and got out of jail) get all the testimonial cooperation he wanted. Otherwise he would have brought further contempt charges. We don't know exactly what all that testimony was, though, because it's still largely cloaked in grand jury secrecy (and always will be). Of course, we know what those witnesses later said at Libby's trial, but they may have been asked things about Rove in the grand jury that nobody had a sound basis to ask about during the Libby trial.

We know that Fitz has said he's not going to seek any more indictments in addition to Libby.

So whatever the journalists did say, after the courts made them testify, it ended up either (1) not persuading Fitz to ask the grand jury to indict Rove (the most likely explanation), or (2) Fitz did ask them to indict Rove, but the grand jury no-billed him (very unlikely).

The new revelation of what was going on behind the scenes at the D.C. Circuit, and from that viewpoint, inside the investigation and grand jury proceedings, is fascinating — but it doesn't change anything. Rove still isn't going to be indicted.

------------------------

We still don't know — and we can't know from this — why Rove wasn't indicted. The use of the word "perjury" suggests that it was based on Mr. Rove's grand jury testimony, rather than anything he may have told the FBI. There's no specific mention of obstruction of justice, but that doesn't mean Fitz wasn't considering that too.  Maybe the journalists' grand jury testimony (presumably Matt Cooper's) cleared Rove in Fitz' view. Or maybe it was equivocal. Or maybe Fitz made a considered judgment that, based on his very subjective assessment of the strength of the various witnesses' respective credibility, he probably couldn't prove perjury charges against Rove beyond a reasonable doubt.

I'm sure that Rove is still glad not to have been indicted, but even if he had been indicted and then acquitted, he wouldn't have "proven his innocence"; rather, that just would have been a jury's determination that Fitz hadn't proved his guilt. And his attorney was glad enough to publicly repeat Fitz' statement, after the Libby indictment, that Rove was not a target, with the intent that that be widely circulated.

I have no quibble with the court's ostensible legal holding. I'm not sure, though, that they drew their lines very carefully. As the panel said (using an internet citation to a CNN news story, no less), there were "public statements by Rove’s attorney that the Special Counsel had informed Rove that he would not be charged in connection with this investigation." But quite arguably, the newly released material does put Rove in a significantly worse public light than he already might have been in based on his lawyer's carefully worded statement. We now know, for instance, details about how late in the process Fitz was still considering making a "charging decision" (i.e., deciding whether to ask the grand jury to indict Rove) — it was at a point when his investigation was, as he told the D.C. Circuit, essentially wrapped up except for these journalists' testimony. More particularly, we specifically know one criminal charge that was under active consideration — perjury. My guess is that is exactly the sort of specific detail that Fitz' original suggestions would have kept secret. When looking at what's already "out," we're talking here, metaphorically, about a whole bag of small, middle-sized, and maybe large cats, not just one big one with respect to each individual affected.

But on the other hand, I suspect that for those who recognize his name, opinions about Karl Rove are already so hardened, pro and con, that not much damage could be done to his reputation from the confirmation that Team Fitz was actively considering him on, specifically, a perjury indictment. There was wide-spread speculation both before and after Libby's indictment that these were the sorts of charges that Fitz was considering against Rove, in addition to possibly charging a substantive underlying offense based on the disclosure of Valerie Plame's CIA status.

There are others in the blogosphere who are busy trying to draw detailed inferences — which is to say, guessing, reasonably or not — about what's still been left redacted. That's fair game, I suppose. Some of them are plausible; others far-fetched; others strike me as wholly implausible.

But I emphatically disagree with comments to the effect that anything in Friday's decision can be used to predict anything about Libby's pending motion for bail pending appeal — much less his ultimately likelihood of success on the merits of his appeal. Unlike bloggers, pundits, and hyper-partisans, U.S. Circuit Judges, in my not inconsiderable experience with them, try very hard to avoid prejudgments, and to instead give the litigants who appear before them a fresh, fair hearing. And they would likely find the notion that they're already deliberately sending signals to Team Libby or Team Fitz as insulting as Team Fitz probably found insulting Dow Jones' argument that Fitz' "knowledge that one individual leaked Plame’s identity calls into question the validity of his continuing investigation into others who may have unlawfully leaked this same information."

Posted by Beldar at 01:21 AM in Law (2007) | Permalink

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Comments

(1) cboldt made the following comment | Jun 30, 2007 7:35:22 AM | Permalink

-- But in fairness also to Judge Tatel, that's not his assessment of Fitz' purpose. It's a statement that even if that were Fitz' only purpose, it still would suffice to justify overcoming the qualified privilege that Judge Tatel thinks federal courts should recognize to protect journalists' confidential sources. --

Tatel qualifies his opinion as to ordering compulsion to testify on the government first showing more than just the possibility of perjury. In this case, Tatel found an adequate showing that "the leak harmed national security" (which is not necessarily the same as "Plame is covered under the IIPA), and therefore that his conditional/qualified criterion was met. You've accurately portrayed Tatel paragraph at page 39 (an my first impression in Feb '06 was exactly as yours), but he concludes with ...

Were the leak at issue in this case less harmful to national security or more vital to public debate, or had the special counsel failed to demonstrate the grand jury's need for the reporters' evidence, I might have supported the motion to quash.

While I don't think the rule of law that Tatel is propounding is a good one, it resembles the proposed statutory reporter shield legislation by requiring a showing of actual harm in order to get behind press privilege.

(2) cboldt made the following comment | Jun 30, 2007 8:20:57 AM | Permalink

Typos galore this morning. Anyway, as a matter of further showing Judge Tatel's qualified immunity "balance," he opened his analysis the same way he closed it.

Because I agree that the balance in this case, which involves the alleged exposure of a covert agent, favors compelling the reporters' testimony, I join the judgment of the court. I write separately, however, because I find Branzburg ... more ambiguous than do my colleagues and because I believe that the consensus of forty-nine states plus the District of Columbia--and even the Department of Justice--would require us to protect reporters' sources as a matter of federal common law were the leak at issue either less harmful or more newsworthy. (pp 1,2)

Judge Tatel gets into his balancing analysis with examples at pages 19 and 20. He arrives at the specific case of analyzing the qualified privilege in leak cases at page 21.

In leak cases, then, courts applying the privilege must consider not only the government's need for the information and exhaustion of alternative sources, but also the two competing public interests lying at the heart of the balancing test. Specifically, the court must weigh the public interest in compelling disclosure, measured by the harm the leak caused, against the public interest in news gathering, measured by the leaked information's value.

The examples he uses follow immediately after, and hint to me that had Tatel thought the CIA report was false (that is, the CIA had no harm from the disclosure of Plame), that he would not compel the testimony.

That framework allows authorities seeking to punish a leak to access key evidence when the leaked information does more harm than good, such as in the nuclear weapon and military strike examples, while preventing discovery when no public interest supports it, as would appear to be the case with Miller's Osama bin Laden articles.

Judge Tatel then expresses this balancing test is a judicial role, not a prosecutorial one, and especially not an independent prosecutorial one ...

Yet independent prosecutors, too, may skew their assessments of the public interests implicated when a reporter is subpoenaed. After all, special prosecutors, immune to political control and lacking a docket of other cases, face pressure to justify their appointments by bagging their prey.

Judge Tatel gives a good explanation as to why waivers by the source of the reporter's information (the defendant, in this case) are, as a matter of law, meaningless as far as piercing press privilege. Fitzgerald can't use the waiver as justification to see the information, and likewise, waivers don't serve Libby as he says they do. But that's another story.

Much has been written about Judge Tatel's misconstruction (at p 38 of his concurring opinion) of fn15 at p 28 of Fitzgerald's August 27, 2004 affidavit -- where it appears Judge Tatel concludes that Plame was "covert" under the meaning of the IIPA. One side of the argument asserts that Fitzgerald engaged in deliberate deception bordering on prosecutorial misconduct by not correcting Judge Tatel's error in construction; the other side takes the exchange as evidence that Plame was in fact covered by the IIPA.

(3) Beldar made the following comment | Jun 30, 2007 9:12:29 AM | Permalink

You're an early riser, cboldt. Thanks, as aways, for the civil, detailed, and intelligent comments.

(If you, or other commenters, want me to fix your typos, tell me exactly how in a follow-up comment and I'll try to oblige (although sometimes comments overwhelm me and, after scanning them for gross vulgarities, I mass-delete them, then feel guilty for several hours). I also feel keenly my inability to extend and revise, mostly revise, on memory and bandwidth that isn't my own. So I'm sympathetic for those who'd rather their footprints on Beldarblog as part of the sands of the internet, humble though this site may be, nevertheless be shaped as they intended.)

(4) cboldt made the following comment | Jun 30, 2007 10:27:38 AM | Permalink

The typos weren't substantive in the least -- missing a closing quotation mark on "Plame is covered under the IIPA" for one, and it obviously should be "and my first impression" not "an my first impression" ;-)

Thanks for the compliment -- and for the offer to be a typo editor.

(5) clarice made the following comment | Jun 30, 2007 12:08:18 PM | Permalink

While Tatel's was a minority view, I don't see how you can read his opinion without concluding that he read the Fitz affidavit as saying that all the IIPA requirements with the exception of Libby(and Rove's) knowledge of Plame's status had been met and the testimony of the reporters was essential to making that final determination.

(6) Patrick R. Sullivan made the following comment | Jun 30, 2007 1:39:17 PM | Permalink

I agree with Clarice, but go further. I don't see how you can read this without concluding that Fitz represented that there might have been a plot to deliberately out a CIA operative.

Which, we know, just wasn't so. Valerie Plame was never more than a tidbit of background information that helped explain who Joe Wilson was and why the CIA used him.

This just makes it even clearer that Patrick Fitzgerald should be shunned by civilized people wherever he goes.

(7) cboldt made the following comment | Jun 30, 2007 1:55:41 PM | Permalink

My point to Beldar was that Tatel's rule wasn't as unqualified as Tatel presented it on page 39, i.e., that perjury alone was sufficient justification to overcome the press privilege. Tatel's full opinion clearly expresses that something more is required.

Tatel's rule is stated in several forms, and it isn't clear which form represent the minimum adequate showing of harm to national security. I do agree that it's a fair reading that he thought a possible IIPA violation was present in the CIA referral, and that Fitzgerald signaled that in footnote 15.

It is clear that Tatel used more than Fitzgerald's affidavit to reach the conclusion that the CIA referral resulting from Novak's article represented the occurrence of a harm to national security, sufficient to overcome the qualified press privilege.

He points to Comey's referral of the case to independent counsel as one indicator of "leak at issue was a serious matter." And following his misconstruction of Fitzgerald's footnote 15, he adds, "Most telling of all, Harlow, the CIA spokesperson, though confirming Plame's employment, asked Novak to withhold her name ..."

Tatel's ultimate conclusion illustrates that his rule does NOT depend on proof positive of possibility of an IIPA violation, but it also is mistaken in assuming the lack of serious dispute regarding Plame's employment.

While another case might require more specific evidence that a leak harmed national security, this showing suffices here, given the information's extremely slight news value and the lack of any serious dispute regarding Plame's employment.

FWIW, at one point, Tatel refers to Plame as "an alleged covert agent," implying that he hasn't seen (and doesn't need) proof positive that she is covert. If he needed proof positive of covert status to invoke his rule, he would have ruled the other way. I note that more to ponder how Tatel's rule would be implemented in practice. What constitutes an adequate showing of "harm to national security" to justify overcoming the qualified privilege?

(8) cboldt made the following comment | Jun 30, 2007 2:46:09 PM | Permalink

-- I don't see how you can read this without concluding that Fitz represented that there might have been a plot to deliberately out a CIA operative --

[Fitzgerald (fn 15)] If Libby knowingly disclosed information about Plame's status with the CIA, Libby would appear to have violated Title 18, United States Code, Section 793 if the information is considered "information respecting national defense." In order to establish a violation of Title 50, United States Code 421, it would be necessary to establish that Libby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who has carried out cover work overseas within the last 5 years. To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.

Further, the paragraph the footnote aims to inform says this ...

[Fitzgerald] 81. The testimony of reporter Miller is central to the resolution of that part of the criminal investigation concerning Libby. Her testimony is essential to determining whether Libby is guilty of crimes, including perjury, false statements and the improper disclosure of national defense information. ^15 The grand jury needs to know when Libby advised Miller about Wilson's wife -- during their private meeting outside the White House on July 8 or during the three minute telephone call on July 12 -- and whether Libby qualified his disclosure to Miller by stating that he had heard it only from a reporter and did not know if it were true. Miller's testimony is essential to determine whether Libby fabricated his claim that he only told reporters what he claimed he had heard from Russert without a belief that the information he was passing on was either true or classified.

From that footnote, and ONLY that footnote, in that context, Tatel concludes ...

[Tatel] ... the special counsel refers to Plame as "a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years"--representations I trust the special counsel would not make without support.

Now, I personally think that Tatel's conclusion is one possible interpretation of the footnote, but I personally (even though you don't see how one can read the footnote any other way) find the footnote ambiguous as to the presence of elements for IIPA violation (it does not come off to me as a direct positive representation that Plame was a person whose identity the CIA was making specific efforts to conceal and who has carried out cover work overseas within the last 5 years), and deliberately equivocal on presence of elements for an Espionage Act violation.

(9) cboldt made the following comment | Jun 30, 2007 2:54:37 PM | Permalink

I want to clarify a statement I made above. The statement I want to amplify is:

I do agree that it's a fair reading that he thought a possible IIPA violation was present in the CIA referral, and that Fitzgerald signaled that in footnote 15.

What I think is a fair read is 1) that Tatel thought a possible IIPA violation was present in the CIA referral, and 2) that Tatel arrived at that conclusion via Fitzgerald's FN 15.

I think it's legitimately arguable whether or not Fitzgerald's FN represents a clear signal that a possible IIPA violation was present in the CIA referral.

I understand that others feel it is NOT legitimately arguable. I've said my piece.

(10) Carol Herman made the following comment | Jun 30, 2007 4:28:22 PM | Permalink

Like that guy who opened and closed his umbrella, up on the Grassy Knoll; one of Fitz' attempts at "indicted Rove" did end up "disappearing from view."

What's Rove got to do with this?

IF Rove had been indicted, I am sure Bush would have immediately pardoned ...

That Libby hasn't received this, only suggests that Bush wasn't anymore interested in Libby, than Fitz was. THE BIG FISH GOT AWAY!

And, that? Leaves Fitz as exposed, now, as Nifong, was.

Perhaps? Robbins is to this case, what Nifong discovered BANNON to be.

The best hope Fitz had, and still has, is a bump off the stage, for Libby, via a pardon.

Everything else? Just leaves the judiciary the mess that it is. And, the Bonkey's hope for 2008, still rests in their lawyering habits.

Can the Internet run interference? Hope so. Where the senate didn't even know their Immigration Bill was sick, turns out the sucker died.

(11) Carol Herman made the following comment | Jun 30, 2007 4:31:17 PM | Permalink

Oh, Plame was more than a "tid bit." She was a woman who had access to USING covert funds for herself. And, the CIA doesn't want to have her methodology exposed. That's what was covert! Money spending, done by Plame, was outside the oversight of Congress.

And, still IS.

(12) Elliott made the following comment | Jun 30, 2007 4:57:03 PM | Permalink

Nowhere in his footnote does Fitzgerald explicitly claim that Plame is covered by the IIPA. He does, in my view, misrepresent the IIPA, though. Notice the presence of the word "believed":

In order to establish a violation of Title 50, USC, Section 421, it would be necessary to establish that Libby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years. To date we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.

I haven't yet found the section in the IIPA where it says that a person who intentionally but mistakenly claims that someone else is a covert agent is subject to prosecution under the act.

(13) Other Tom made the following comment | Jun 30, 2007 9:37:06 PM | Permalink

I know that all of us here are civil libertarians, and thus all will uniformly applaud the fact that a man we now know to be innocent was not put throught the grueling ordeal of an indictment and trial.

Of course, there remains the possibility that Mr. Rove was indeed indicted, and the indictment was placed under seal on May 13, 2006, and has thus remained under that seal for something more than fourteen months now. That indictment was confidently reported to us as fact not only by Jason Leopold, but by the dangerously fat Larry Johnson.

In the meantime, let us lovers of liberty rejoice at the failure of a runaway governmental beast to persecute an innocent public servant. I know you'll all join me in shouting a hearty "huzzay! huzzay! huzzay!"

(14) Patrick R. Sullivan made the following comment | Jul 1, 2007 11:58:15 AM | Permalink

Uh, cboldt, that's not what I'm referencing at all. I'm talking about this from page 40:

Had Cooper based his report on leaks about leaks--say, from a whistleblower who revealed the plot against Wilson...

By the time this issue reached Tatel and brethren Fitz knew there was no 'plot'. That idea only comes from the fevered imaginations of Joe Wilson and David Corn.

(15) cboldt made the following comment | Jul 1, 2007 1:16:18 PM | Permalink

-- I'm talking about this from page 40 --

The quote you selected from page 40 is part of Tatel fabricating a hypothetical situation from whole cloth, a hypothetical that is deliberately different from the case in hand. The quote "Had Cooper based his report on leaks about leaks--say, from a whistleblower who revealed the plot against Wilson..." is a part of the "not this case" hypothetical side of the comparison. The purpose of the hypothetical was to facilitate understanding, by way of example, of where Tatel would draw the line for compelling testimony. In the case in hand, he would compel the testimony, in the hypothetical, he would not.

Perhaps you meant to point out a different selection. How does one inevitably find, in a Tatel-crafted hypothetical, evidence that Fitz represented that there might have been a plot to deliberately out a CIA operative?

(16) boris made the following comment | Jul 1, 2007 1:36:21 PM | Permalink

The phrasing of "who revealed the plot" instead of "a plot" suggests its existence was on the table.

Fitz certainly pushed it hard to the jury in his closing.

ISTM you are exaggerating the hypotheticalness of the remark.

(17) PatrickR made the following comment | Jul 2, 2007 10:05:43 AM | Permalink

cboldt, I agree with boris that you're trying to hand wave away 'the plot'. And, where else does Tatel get his info if not from the prosecutor?

I mean, this is not a talk show. It's supposed to be a legal preceeding where things are established with evidence.

(18) cboldt made the following comment | Jul 2, 2007 10:35:04 AM | Permalink

-- I agree with boris that you're trying to hand wave away 'the plot' --

I suppose one can view the investigation as inherently implying a plot, making anything and everything Fitzgerald does or says will constitute a representation that there was a plot.

My take of the affidavit as a whole is more of "I think these guys lied to us" than "I think Libby tried to out a covert agent" or "I think Rove tried to out a covert agent."

Rather than argue over the meaning of "plot" in this discussion, I view the premise of objection to the affidavit is that it (the affidavit) is deliberately and strongly misleading, to the extent that it caused at least Tatel to rule contrary to his view of the law, and maybe to the extent that it should be sanctioned as prosecutorial misconduct. I don't view the affidavit as having that quality. That the affidavit can be misconstrued does not make it deliberately deceptive.

(19) boris made the following comment | Jul 2, 2007 11:50:30 AM | Permalink

After a crime was reported a group of plainclothes officers approached a pair of suspects and opened fire when one appeared to reach into his jacket. That the suspect had no weapon and was riddled by dozens of rounds was used to suggest by some that the actions were excessive and precipitous.

Several explanations are put forward to explain why the suspect may have reached into his jacket.

  • He thought he had a gun but forgot to put it on;
  • He was reaching for his pocket knife and forgot it was still in his pants pocket;
  • He hadn’t noticed the officers and was just getting a stick of gum;
  • He was looking for his cell phone;
  • It was involuntary reflex from the first bullet striking his shoulder;

The first two are heavily promoted by those who claim “officers do a necessary and dangerous job and deserve the benefit of doubt in situations like this”.

The other side says “while that may be true, in this case the crime report was false and officers are obliged to behave more responsibly”.

Neither side knows why the suspect made that motion but it should be clear that the 1st two explanations are not logical and the focus on them is possibly a cop out for a more serious issue that some would prefer to assume than debate.

(For analogy: plainclothes officers = Fitz, Walton and the DC3)

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