Tuesday, February 28, 2006

Why Patrick Fitzgerald is smarter than me

When Fitzmas came as something of an anticlimax four months ago, I was a bit stingy in my praise, and withheld my vote for full sainthood.

Whie the jury may still be out (or more correctly not even empaneled yet) on beatification, allow me to say right here and now that he seems to be a helluva lot smarter than I gave him credit for at first.

Like everyone else who was demanding Rove's head on a pike, I was disappointed with the indictment -- both because it was only of Libby, and because Libby was only charged with the derivative crimes (perjury, etc.) rather than the underlying Intelligence Identities Protection Act.

A few months before the indictments came down, I wrote a lawyerly piece arguing that it would not be that hard for Fitz to make an IIPA case against Rove. I stand by that piece, and suspect it would have been, and probably still would be easy for Fitz to do so against Libby. So why did he pull up short of the IIPA charge?

Because he is one smart mofo.

My initial argument was about the law. What Fitz has done is about strategy and playing the bigger game.

The problem with an IIPA case is that it is tightly, even inextricably, wound up with sensitive national security issues. As such, an IIPA charge would be a classic greymail opportunity. Libby's lawyers would claim (as they have despite the lack of IIPA charges) that they could not defend without access to documents the Administration would (wink, wink) refuse to turn over, and Libby would have a legitimate shot at a dismissal. Although they are obviously at odds in the real world, from the perspective of the court, Fitz would be seen as representing the same government that Bush and Cheney run, and the law would have to assume coordination between the Administration and Fitzgerald, rather than the far more obvious ties to Libby. Our Consititutional system would indeed give Scooter some protection.

By limiting the charges to Libby's lying, Fitz nipped that whole gambit in the bud. Libby's team is still throwing its greymail hail Mary. But Fitz has argued that none of the secret sauce, such as the Presidential Daily Briefings Scooter has requested, are relevant to the carefully circumscribed charges Fitzgerald actually brought. Fitz has pointed out that Scooter's defense team is in effect trying to defend Libby against charges that he does not actually face. Early indications suggest that the judge isn't buying the defense's 3 card monte. Neato.

There is another benefit that flows from omitting the IIPA charge, at least at this point. I suspect it is politically harder to justify a premptive pardon for lying than it would have been for the IIPA charge. So Libby continues to twist in the wind, a posture that must be increasingly uncomfortable (for all concerned) as Dick Cheney's status as de facto ruler becomes increasingly suspect. Cheney's approval is currently at 18%. If he is driven from office before he can convince Bush to pardon Libby, my guess is that Libby sings soon afterward.

Fitz could have charged the underlying crime, which would have pleased us in the short term, but led directly to the dismissal of the charges, and the likely end of the road in an Iran-Contra- like rout. Fitz looked three moves ahead and saw what I and most others didn't. So Fitz cut the Gordian knot by charging Scooter only with lying.

Never, ever, play chess with this guy.


Blogger Olaf said...

Superb piece, Mr. Meme. I think you're dead on--Fitz is the one the White House truly fears. I wonder if Libby will sing sooner rather than later as Bush's popularity plunges and a pardon for Libby would just hurt him even more. Rove will likely counsel Chimpie to cut both Cheney and Libby loose to their own devices, wrap himself even more tightly in the national security bullshit, and pick a new Veep who can pardon him when he is forced to resign when Cheney strikes back.

At least, I hope so.

12:10 PM  
Blogger vermontraccoon said...

Scooter has hired a Harvrd prof. who is an "expert" on memory loss. Indictment-induced Alzheimer's disease, anyone? Sounds to me like he's strainin' to do some 'splainin'. I have maintained in the past that Reshrublicans are most dangerous when cornered, so thank the Good Dude for Fitz....

1:05 PM  
Anonymous Anonymous said...

I doubt if Fitz is smarter than you, just more deeply cynical. Its a good tool for forcasting the future with fair accuracy.

BTW, since when did the politcal parties get sole claim to a particular part of the color spectrum? Don't like the demlicans, I'm right with you. Want to hand them the eternal rights to the color blue? No way! Restore integrity, restore the BLUE meme.

2:37 PM  

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