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Waiting For The Valerie Plame Wilson Grand Jury: The Big Question Is Whether Dick Cheney Was a Target


Friday, Oct. 21, 2005

Washington is truly abuzz with rumors about what Special Counsel Patrick Fitzgerald may, or may not do, as his grand jury comes to the close of its almost two-year investigation of the leak of Valerie Plame Wilson's covert status at the CIA. As I write, it appears that Fitzgerald will act within the next few days.

Unidentified government officials, The New York Times reports, say that Fitzgerald "will not make up his mind about any charges until next week." With his grand jury expiring on October 28, 2005, he is down to only a few options:

First, he could close down his Washington office; return to his work in Chicago, where he serves as the U.S. Attorney; and simply issue a statement that his investigation has ended. (He has no authority to write a report, for the information he has obtained is subject to Rule 6(e) of the Federal Rules of Criminal Procedure, and thus is secret).

Second, he could extend the grand jury for whatever time he needs to complete his investigation. And third, he could issue one or more indictments.

Fitzgerald, and those who work for him, have acted throughout the investigation just as prosecutors should. Lips are zipped. Fitzgerald has held his information so close to his chest that, as one wag put it, he's got it in his underpants. Accordingly, Washington is filled with rumors.

The Best Information Available

While I have not begun to search all the available sources, so I can only speak to a limited universe, I can tell you who has consistently provided information and steady reports.

Unfortunately, The New York Times, which should own the story, does not. Rather, in the recent, crucial weeks, some of the best information has been coming from a very unlikely source, The National Journal. The National Journal, as readers may know, is a pricey Washington-insider weekly subscription report, with daily web updates; given the importance of the story, it has been making available the exclusive reporting of Murray Waas, who appears to be one the few reporters with meaningful access.

Editor & Publisher, which focuses on the newspaper industry, has been on top of the story from the outset, keeping an eye on who is doing the more credible reporting. And the national news magazines, Time and Newsweek have been hanging in.

The Associated Press, as usual, is also on top of the story. But some of the most surprising information has come from the business wire of Bloomberg.

In short, none of those who are really on top of the story are partisan rags; rather, they are straight-shooting journalists who are seeking to sort out what is occurring.

This, however, is not to overlook several blogs, which have been reliable, and plugged into the story, or have taken the time to analyze what is out there and have occasionally broken fresh news. In this category, I would place high on the list the Daily Kos, Josh Marshal's TPM, and the Huffington Post, where Larry O'Donnell has provided some good insider tips.

Something is going to happen, and, I think, fairly soon. It has been many years since my conversations with well placed friends in Washington have reflected the sort of inside-the-Beltway tension that is now mounting. This tension was not matched during the Whitewater/Lewinsky investigation, nor during Iran-Contra. But it is very reminiscent of the wait for the U.S. Supreme Court to rule in Nixon v. United States - the decision that famously forced Nixon to turn over his secretly recorded taped conversations -- and ended his presidency.

The similarity is, of course, because there is the real potential that this investigation and prosecution could reach right into the top of the Bush White House. How high is the source in question? Could it be George Bush himself? Dick Cheney? Karl Rove? Scooter Libby? My guess is that, in different ways, all four likely were involved in the exposure of Plame's covert identity.

Let me give you my read on who the highest-level targets of Fitzgerald's investigation probably are, and what will likely happen to them.

Who Can, And Who Can't, Be Indicted?

During Watergate, the Watergate Special Prosecutor did considerable research on whether or not a sitting president could be indicted. While the law is not black letter, the consensus of considered opinion is that he cannot.

First, there is the Constitutional language that appears to make impeachment and removal the only solution for presidential misconduct. There is also the point that conduct bad enough to constitute a serious crime, is likely also bad enough for impeachment -- and that, after impeachment removal, of course, an ex-president can be indicted.

On a more practical level, a president can remove any federal prosecutor who might indict him, for they all serve at his pleasure.

As for vice presidents, they can be indicted. Indeed, Vice President Aaron Burr was indicted by two states for the murder of Alexander Hamilton. Vice President Spiro Agnew negotiated an indictment for failing to pay taxes (rather than bribery), and resigned from office.

The problem with an indicted vice president, however, is that unless he resigns, he remains in office until impeached by the House of Representatives, and convicted by the Senate. That leads to a potentially absurd situation: As the presiding office of the Senate, a vice president who had been impeached could preside over his own trial. (The Constitution failed to account for this situation by naming another official who could preside -- a slight flaw, to say the least.)

Clearly, anyone below the office of president can be indicted. But again, unless the president (or vice president) demands that official's resignation, or he resigns voluntarily, he could serve unless impeached.

As a practical matter, of course, it is difficult to imagine anyone remaining on the president or vice president's staff if they were under indictment. But if the political situation somehow allowed that - perhaps because the indictment seemed makeweight or political, or both - then there would be no constitutional impediment to the staffer's continuing to serve, other than impeachment. (Employment contracts, however, could cover this situation if the White House so chose.)

Who Will, And Who Won't, Be Indicted?

While I may be letting the air out of some rising balloons, I think Fitzgerald's silence has fed speculation that postulates indictments way beyond the realistic potentials.

The really big fish in this case is the Vice President. And I have little doubt, based on my knowledge of the case, and of the way Cheney typically operates, that a case could be made against him.

But Fitzgerald is an experienced prosecutor, and that means only if he found himself confronted with an exceptionally egregious case (the equivalent of Spiro Agnew's taking payoffs from Maryland contractors in his Vice Presidential Office), would Fitzgerald consider indicting Vice President Dick Cheney.

Make no mistake, Fitzgerald has the power to indict anyone he finds to have violated federal law -- and there are over 4,000 criminal laws today. And understand that prosecutors who truly want to nail someone (as Kenneth Starr did with President Bill Clinton) can do just that.

But Ken Starr was not a seasoned prosecutor. And it may make a difference that Fitzgerald was appointed by the Bush Administration, whereas, of course, Starr was not chosen by Clinton and they were politically opposed. As a rule, prosecutors do not bite the hand of the administration that feeds them.

At the time Fitzgerald was appointed as Special Counsel, he was given "the power and authority to make whatever prospective judgments he believes are appropriate, without having to come back to [the Deputy Attorney General, who has since resigned] or anybody else at the Justice Department for approvals" He is, in effect, attorney general with respect to this investigation.

Fitzgerald Will Probably Look to Whether the Leakers' Motivation Was National Security

All prosecutorial decisions are political. Not necessarily in the partisan sense, but rather, in the sense the prosecutor balances the seriousness of the conduct involved, with the purpose of the laws that might be violated, and his job is to act in the best interest of the United States government.

The leak of Valerie Plame Wilson's covert identity, if it was part of a plan to discredit her husband's report on his trip to Niger, is directly related to issues of "national security." After all, the Niger uranium claim was part of the basis for the Iraq War, and Joe Wilson's claim that it was bogus, and the President ought to have known as much, is intimately related to the politics of going to war - and also to national security in the sense of responding to genuine, and only genuine, threats to the United States.

But national security is a very gray area. Was the Bush/Cheney White House operating in the best interest of the country, or did they have a private agenda (oil fields in Iraq)? Did Cheney, Karl Rove, and Scooter Libby believe they had national security reasons to discredit Wilson's claims, and act accordingly? This is an area where there is no law, and it compounds the assessment of the actions of those involved.

It is difficult to envision Patrick Fitzgerald prosecuting anyone, particularly Vice President Dick Cheney, who believed they were acting for reasons of national security. While hindsight may find their judgment was wrong, and there is no question their tactics were very heavy-handed and dangerous, I am not certain that they were acting from other than what they believed to be reasons of national security. They were selling a war they felt needed to be undertaken.

In short, I cannot imagine any of them being indicted, unless they were acting for reasons other than national security. Because national security is such a gray area of the law, come next week, I can see this entire investigation coming to a remarkable anti-climax, as Fitzgerald closes down his Washington Office and returns to Chicago.

In short, I think the frenzy is about to end -- and it will not go any further. Unless, of course, these folks were foolish enough to give false statements, perjure themselves or suborn perjury, or commit obstruction of justice. If they were so stupid, Patrick Fitzgerald must stay and clean house.

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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