Sheridan: Con-Law

PLAMEGATE CIVIL SUIT DISMISSED

Valerie Plame Wilson is the former CIA officer who was outed as a spy by her own government, a seemingly unique American twist to the world of espionage, sort of like James Bond being burned by M or C or whoever the technical mastermind of MI-5 was in Britain at the time.

Why was she outed?  In revenge, the theory went, for her husband, Ambassador Joseph Wilson IV, showing Pres. George W. Bush to be a liar, or close, in claiming that Saddam Hussein of Iraq was buying yellowcake, a uranium oxide used to make A-bombs, from Niger.  Wilson had been our ambassador to that country, had good contacts, and was sent over there by the CIA to check out the claim, before the president made it.  Wilson spoke to the minister or minerals or exports and checked to see whether any yellowcake was going to Saddam, or had gone.  Nope.  False alarm.  The reports were wrong.  The underlings in the U.S. duly warned the White House not to include that excuse for going to war against Iraq/Saddam as it hadn't panned out.  No gold, no yellowcake.

Pres. Bush said it anyway in his state of the union address one year.

Wilson called him on it in an Op-Ed article in the New York Times that called him, almost, a liar.

The White House got Wilson back by burning his wife.  They leaked her status as a spy all over town, it was claimed.  In fact it was Colin Powell's deputy, old whatsisname, Something Armitage, who finally admitted to doing the leaking first.  But it appears that Lewis I. "Scooter" Libby was also talking to reporters out of school, too.  Judith Miller went to jail for over 80 days.  Libby got sentenced to 3 years but got sprung last minute by a commutation issued by possible conspirator in chief George W Bush.

At any rate, Plame sued the buggers for forcing her in from the cold, as fans of James Bond and John Le Carre will recognize the term for quitting being an undercover spy, and aren't they all.

Today a federal judge dismissed Plame's civil case and she threatens to appeal.  Good luck.

The NYT report is below:

BUSH PULLS A NIXON: LIBBY'S SILENCE BOUGHT AND PAID FOR

During the Watergate, scandal in which Pres. Richard M. Nixon's "plumbers" (who were caught burglarizing the Watergate apartment-office complex headquarters of the Democratic National Committee seeking political intelligence to use in the upcoming election) were prosecuted criminally by the Department of Justice over which he presided.

"Tricky Dick" (RMN) trying to give the appearance of innocent outrage, promised the country that it could rest assured that none of the accused would receive the benefit of any of those lenient plea bargains that you read about, in fact they wouldn't receive any.

Hooray! we were supposed to think, our president, who also proclaimed "I am not a crook," is protecting us from crooked dealing by government.

The problem was that offering little fish immunity in return for truthful testimony is how honest, truth-seeking prosecutors advance their investigation against bigger fish, and Pres. Nixon was the biggest fish of all, up to hIs neck in setting up the Committee to Re-elect the President (CREEP), and then covering up their crimes.

When his secret White House tapes came to light in the Watergate Hearings, they were subpoenaed.  After a fight over executive privilege in which the Supreme Court ruled that he had to produce the tapes, which contained incriminating evidence out of the president's mouth, despite a long, suspicious, gap in the tape, the president (who came to fame as a prosecutor of Communists during the McCarthy Era) resigned his office (to avoid being successfully impeached) in disgrace.

By making a seemingly attractive promise to the country to allow no deals for suspects, Nixon was effectively removing the one tool prosecutors had available to force his subordinates to spill the beans on him. They didn't call him Tricky Dick for nothing.

This is a plausible explanation for what Pres. George W. Bush seems to be doing in granting a commutation of sentence to Lawrence I. "Scooter" Libby, V.P. Cheney's former chief of staff and dirty trickster in supposedly leaking Valerie Plame Wilson's secret-agent CIA identity to the press.  Someone else actually admitted doing the leaking, but Libby is the one convicted of perjury and obstruction of justice behind it, for which he was sentenced to three years in the federal pen, plus probation and a fine said to have been paid from money raised by supporters of the regime.  Hanging over LIbby's head yet is the fact that the president may grant him a full pardon in the future.  What does Libby have to do to earn this additional benefit which could insure his ability to practice law again?  Keep his mouth shut when it comes to Cheney, Bush and others?  Like who, I wonder?  Who else brought us the war in Iraq?  Rice?  Rumsfeld?  Powell?  Rove?  Government contractors? A host of others, all rooting for a silent Libby?

Libby stays out of jail, which removes his incentive to retaliate by singing, but remains immune from having to testify because he can still appeal his conviction, thus keeping alive his Fifth Amendment right not to testify such as before Congress or in a civil suit (since his conviction might be reversed by some miracle and he could be retried criminally).  President Bush has pulled a Nixon, it seems.

Sen. Patrick Leahy and Congressman John Conyers aren't buying the president's apparent ploy, in the San Jose Mercury-News article below.

SCOOTER SCOOTS

The Constitution give the president certain powers...and imposes certain duties (Art. II).

Duty #1 is that "he shall take care that the laws be faithfully executed."  Sec. 3.  The president is the head of a department (the Executive) or branch that consists of all of the executive agencies created by Congress.  He (or she, someday) is supposed to see that they carry out their functions in accordance with the terms of the Constitution.  That's why the president swears an oath of office to "preserve and defend the Constitution of the United States."  So do all of the other federal, and state, officials of government.

One of the president's powers (Sec. 2.1) is that "he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

Yesterday the president commuted the 30-month federal prison sentence imposed by a federal judge, following trial and conviction for perjury and obstruction of justice on Lawrence "Scooter" Libby.  The president let stand, at least so far, the conviction, the $250,000 fine, and the two-year period of probation.  There seems to be no constitutional reason that the president couldn't erase those, say on his last day in office, as Pres. Clinton did for big donors and other newly worthy citizens who'd cleaned up their act.

Thirty months jail is too much, says the president, George W. Bush.

There's something about granting clemency to one's fellow gang-member that strikes me as being too much like Tony Soprano having the power to grant a commutation of the sentence of a henchman who whacks a rival gang member, at the request of Tony or one of his boys.

Why does he do this? I wonder. 

Is it because the sentence is really too severe? 

Or, is it because if he doesn't take care of one of the boys, he might, while serving his sentence, decide to cooperate with his prosecutor and spill the beans on who put him up to whacking Vito in the first place?

Somehow, I don't suspect Pres. Bush of being soft on crime, or fearing that 30 months in the federal gulag is too severe for people who lie under oath to federal law enforcement officials, grand juries, or at trial.  After all, thirty months is within the federal sentencing guidelines that Pres. Bush's federal prosecutors are sworn faithfully to take care are carried out.  Especially after the accused takes the prosecutor to the mat at trial and later expresses no contrition or remorse. 

Usually before the president grants clemency, the office in the Justice Department which reviews the applications wants to see that some time has been served and the individual has repented his wrongdoing.   That hasn't happened here.

This is taking care of one of our own.

Since the president is exercising a power expressly granted to him, clemency, I don't see a constitutional problem with exercising it partially (commuting the jail portion of the sentence before it even starts) when he could have exercised it fully (vacated the entire conviction and sentence).

I see a political storm in the making, but that's not the same as a constitutional law problem, at least not as to that portion of the text, no matter how much one may think the clemency was self-protective of the president (or V.P. Richard "Darth Vader" Dick Cheney to keep Libby's mouth shut when it comes to the bigger fish) rather than sudden heartfelt remorse about seeing yet another miscreant headed to the federal pokey.

I do see a question as to whether the president is faithfully carrying out the nation's laws, however.

There's a reason we have federal laws against lying to government investigators and juries.  The theory is that we are somehow after the truth.  We don't want to see too many people going to jail based on government lies, although we don't seem to mind killing a lot of people in Iraq based on lies told by George Bush, Dick Cheney, and Colin Powell.  But they weren't under oath, were they,  Why don't we get back to Scooter before you become upset.

Has the president taken care to faithfully execute the nation's laws against lying to the government?

Why should we be surprised that a president who has never apologized to his masters, his employers, the shareholders, you know, the People, as in "We, the People..." (see the Constitution, Preamble) for lying to get us into Iraq, want to see old Scooter sent to prison for lying as part of the effort to discredit former Ambassador Joseph Wilson, by outing his wife, Valerie Plame, a covert CIA officer?  Which is what Libby did to get in trouble in the first place, and then lying about it under oath, thus earning the prison sentence.

If Bush had let Scooter go to prison, a lot of people would wonder why Cheney and Bush weren't sharing the same cell.  I'm wondering that myself.

But as I said, when the Constitution gives Tony Soprano the power to spring a jailbird to keep him from singing on the bigger fish up the line, Big Tony doesn't have to worry about frying himself, does he?

And as for the political fallout, when you're term-limited out, as Big W is, we can let someone else worry about that, can't we?

Why, I wonder, does the president allow the other sentencing terms to stand?  A collection has been taken among supporters that will pay the fine.

But the Scooter remains on probation for the next two years.  Is this designed to keep him under control?  Getting rid of the jail term eliminates some of the bitterness that the Libby must feel towards a seemingly ungrateful VP and president who skate while Scooter is allowed to dangle slowly, slowly, in the wind.  Now there seems to be little reason for Libby to spill the beans about how he knew, because Cheney told him, that the president had said it was okay to spill the beans on Valerie Plame to fix Joseph Wilson.  But maybe it wouldn't be smart to go around like a bull in a china shop and bad mouth the big guys while you're still on federal probation, and your federal P.O.'s boss answers to higher-ups in the bureaucratic chain that leads to you-know-where, the White House, now a bitter shade of gray, tarnished with black soot from the witches' fire burning in the basement.

Below is an article on the president's decision, appearing in the NYT on July 4th, tomorrow.  I'll let you know when the Times reports the race results the day before, too.

S.F. CHRONICLE REPORTERS TO BE JAILED

A federal judge has told two reporters from the Chron that, pending appeal, he plans to send them to jail for up to 18 months (the life of the grand jury) to force them to reveal who leaked secret grand jury information to them in the BALCO baseball steroid investigation featuring the testimony of S.F. Giant home-run hitter Barry Bonds, whose testimony before an earlier grand jury has given rise to a perjury investigation being conducted by the U.S. Attorneys office here.

Perhaps it's a bit too easy to say, "Bad government, going after good reporters like that, and shouldn't this be deemed a violation of the First Amendment's freedom of the press."  Absent a federal reporters shield law, the judge is required to order the reporters to divulge the information they've collected and jail them for contempt of a court order when they refuse.

The question is whether Congress should enact a shield law, as many states have.  The stakes may be different as between the states and the nation.  The nation may see its national security at stake, while it is hard to imagine the security of a state being threatened.  It's hard to see the nation's security at stake from what a reporter gathers, either, come to think of it, unless the reporter knows of the next impending Pearl Harbor or 9-11 attack and isn't reporting it but the government finds out anyway.

Government is concerned with protecting the secrecy, and integrity, of some of its more sensitive processes, such as grand jury investigations.  Thus it wants to be able to go after leakers, whistle-blowers, and the reporters who find out and report what these folks have said.

Some leakers and whistle-blowers perform a valuable public function.  Deep Throat, the informant who provided the key information to Washington Post reporters Bob Woodward and -- Bernstein that resulted in the Watergate scandal that forced the resignation of Pres. Richard M. "I'm not a crook" Nixon, was the No. 2 guy at the FBI, Mark Felt.  We wouldn't have wanted the reporters to go to jail there because we liked what the leaker was leaking.  He was burning a crooked administration that was subverting the nation.  He helped save the country.  So the rule:  good leaker, no jail for reporter.

But suppose the leaker, a government employee, is a crook himself?  Someone who is using the power of public office, and the secret government information available, to destroy enemies?  Innocent enemies?  For example a police detective "leaks" information that a suspect has confessed to the latest terrible crime that has everybody all upset.  Only it turns out the report is false and only designed to blacken the reputation of the subject.

Oh, no government employee would do that, you think.  But that was the belief held by many people in the Plamegate scandal, in which it was believed that the White House leaked the fact that Ambassador Wilson's wife, Valerie Plame, was a covert CIA employee, in order to punish Wilson for embarrassing Pres. George W. Bush by contradicting his excuse for invading Iraq by claiming that Saddam Hussein had been collecting yellow-cake, a precursor chemical (a uranium isotope) to make nuclear weapons.  It turns out that the leaker wasn't the White House but the State Department.  Or one of the leakers.  New York Times reporter Judith Miller went to jail for some 87 days before agreeing to reveal the leaker, after getting I. "Scooter" Libby's permission to reveal that he was her source.  The State Department's Richard Armitage seems to have been an even earlier leak.  Libby's leak seemed to have been a punitive leak that destroyed the career and relative safety of a CIA intelligence officer working to protect the country.  That was a bad leak.

Here the equation changes and the rule seems to want to be:  bad leaker, no reporters privilege.  Why?  Because why should reporters, and the law,  be allowed to protect evil lying leakers.

Should a reporters shield law protect only certain kinds of leakers, good, not bad?  Truthful, not lying?  Suppose the leak contains some of each?  It seems to me that a blanket rule is going to have some bad consequences that we can anticipate in advance.

Sen. Arlen Specter, Chairman of the Senate Justice Committee, says that he plans to introduce federal legislation to protect reporter from having to reveal sources soon.  I wonder how he proposes to address the problem of the lying leaker who harms his victim. 

The best real life example of this that I can think of is the Wen Ho Lee case, where the government scientist was suspected of revealing atomic secrets to China, only he wasn't.  He was prosecuted, jailed, and held in an isolation cell for months before the case fell apart.  In the meantime, some government investigator had leaked that he did all sorts of nefarious things indicating guilt, but these claims were shown to be lies. 

Mr. Lee sought to find out who the leaker was so he could sue him.  Didn't he have a right to receive compensation for the injury he'd suffered?  The government settled for a lot of money after Lee homed in on the leaker.

As to the question whether the distinction between protected and unprotected sources should be whether the leaked information is truthful or not, this characterization presents problems of its own, but perhaps not insurmountable problems.  In the Lee and Plame cases, and the information leaked was factually wrong.  The reporters were being used as tools by the leakers, just as the reporters were using the leakers as tools to write stories that turned out later to be false, although the reporters, presumably, weren't aware of this at first.  Suppose the reporters didn't much care whether the report was false, such as in a case where a really unpopular person was being condemned, such as an alleged Communist or child molester.  Or an Al Qaeda suspect. 

One of the problems is that you can't always tell truth from lies at the beginning of an investigation.  Yet the demand is to force the reporter to reveal information, whether true or false, before this can be told.

The government may hope to use the information to obtain more information so this can be determined. 

This is getting complicateder and complicateder.

We'll have to ponder it some more, won't we.

ARMITAGE-GATE

Just when we thought the Bush Administration had outed covert CIA agent Valerie Plame-Wilson in a deliberate effort to retaliate against her husband, former Ambassador Joseph Wilson for his Times Op-Ed article showing the falsity of Pres. Bush's State of the Union, 2004, claim that Saddam had been buying Yellowcake from Niger, which was a big part of the reason for us to invade Iraq, it turns out it wasn't the White House, after all, who did the dirty leaking.

It was the State Department.  Colin Powell's right-hand man, Richard Armitage, couldn't keep his big mouth shut.  He leaked the covert information on Plame to columnist Bob Novak.

Why have a top job in Washington if you can't gossip about all the secrets you get to know that the others at the high-level receptions don't get to know unless you tell them.  How else do you prove that you are on the inside unless you drop some, like, really inside tidbits from time to time, about the day's news.

That, it seems, is what Armitage did.  The resulting tidal wave of scandal engulfed the White House, not that it didn't need a little engulfing.  We have gone to a war, invading Iraq, as pre-conceived, if not pre-planned very well.  The Vice-President's chief-of-staff Scooter Libby did get indicted for the same leak because he knew Plame was covert.  Armitage didn't, apparently.

Special Prosecutor Patrick J. Fitzgerald has known of the Armitage role from day one of his tenure in office, it appears.

So, the score-card, as I read it, is:  Armitage is the first to leak the confidential information about Plame to the press, but because he's ignorant, he's innocent.

Libby leaks the same information to the same reporter, but because he's calculating, he's not ignorant and therefore not innocent.

And now Fitzgerald, the prosecutor, has to stand in front of a jury and explain why he's going after Libby the second leaker and not the real leaker, er, first leaker.

Fitzgerald is like the lifeguard who throws the second leaker out of the swimming pool for leaking on purpose while allowing to remain in the pool the first leaker because he thought it was okay to take a leak.

Stay out of the pool in Washington is the moral of this tale.

The NYT is reporting on this and Fitzgerald, here.

And the Virginia-Pilot editorializes below.

***

9-14-06

CBS reports today that reporter Bob Novak, who received the leak from Armitage and first reported that Amb. Wilson's wife was Valerie Plame, a CIA employee, is saying that Armitage did not make the revelation in a casual or accidental manner, but pushed it as a story for some unstated reason.  Armitage has been sued by Plame and Wilson along with others sued earlier.

Rough place, that Washington.

***

THE LIBBY INDICTMENT

Special Prosecutor Patrick Fitzgerald filed his federal grand jury indictment against I. Lewis "Scooter" Libby, V.P. Cheney's Chief-of-Staff this morning, in U.S. District Court, Washington, D.C.
Libby is accused of obstructing justice (10 years), making false statements to a government (FBI) official (2 counts worth 5 years each), and committing perjury in testimony given to the grand jury (2 counts worth five years each).

In a press conference announcing the indictment, Fitzgerald explained that he was permitted to discuss the contents of the indictment as allegations, but not to discuss anyone else not indicted, and there were no others.  He refused to entertain hypotheticals that would inevitably be deemed by others to relate in reality to this investigation.  He declined to speculate or offer comfort to those who took comfort in this investigation as a comment on the question of the justification for the Iraq war, the context of which provided the impetus for the outing of CIA officer Valerie Plame, the wife of Ambassador Joseph Wilson IV.

Fitzgerald explained that government agents, particularly those engaged in thankless tasks (because no one was allowed to know who they really were, i.e. their true identity, risked a great deal in the confidence that they were protected by U.S. law.  The leaking of identities risked that confidence, and in that sense, harmed all of us.

Fitzgerald, using a baseball analogy, also explained why, even though Mr. Libby was not accused of leaking government secrets, but of lying about whether he did or not.  Fitzgerald's baseball example was of the pitcher who beans a batter.  That can kill a batter.  Fitzgerald, a New Yorker by birth and rearing, is U.S. Attorney in Chicago, the Northern District of Illinois.  The Chicago White Sox just won the World Series in four straight, their first such victory in 87 years.

Fitzgerald noted that in investigating whether the pitcher should be punished for the beaning, it was important to know whether he had a motive, and the intent, or was this an accident, such as his foot slipping.  Thus an investigation would inquire into whether he said anything in the clubhouse about the batter.  It is a difficult and delicate question to reach a true and correct conclusion about whether the pitcher's intent was wrong, whether he was being reckless, careless, or the beaning was accidental.

If the witnesses providing the information, including the pitcher, lied to investigators, or to the grand jury, there was a significant risk that the ultimate question would go unanswered, or would be answered wrongly.  An innocent person could be accused, or a guilty pitcher could escape justice.  Fitzgerald pointed out that ordinary people, such as truck drivers, are routinely charged with false statements and obstruction and perjury for false swearing.  It would be wrong to excuse high government officials who did the same thing.

In making these explanations, Mr. Fitzgerald performed the prosecutors to the  highest degree of professional competence, expertise, and apparent good faith that I've ever seen, and I've practiced in the criminal courts as both as a prosecutor (seven years) and a defense attorney since 1967.

Mr. Fitzgerald is as smart as they make them.  The son of a New York doorman, he is the product of Regis High School, a Catholic school in New York, and Harvard Law School.  He summarized a secret grand jury national security investigation that was conducted leak-free over a period of two years.  The audience was the nation, from the reporters to the White House, to Congress and, no doubt, the justices of the Supreme Court and the federal judiciary.  Prosecutors across the land will have witnessed Mr. Fitzgerald's stunning performance.  He respected the accused's right to the presumption of innocence and a fair trial by not presuming to address questions more properly within the purview of the defense attorney or the trial process.

As an opening statement on behalf of the government, Fitzgerald did a superlative job of stating the government's case as set forth in the accusation and its importance, considering that some of the questions seemed abstract and in need of being tied to the ground, such as the need to protect government agents and other information against leaks, and the reason why the truth needs to be protected in official investigations.  The truth is the engine of the legal system, Fitzgerald said, and it needs all the protection that can be mustered.

He refused to be drawn at length into the question of the privilege claimed by reporters and the press.  In this case, he said, it would be insane not to question the witnesses to an alleged crime, this being the alleged leak of allegedly confidential, protected information by Libby to Judith Miller of the N.Y. Times.  It would be impossible to know whether Libby committed the crime of illegally leaking such information without speaking to Miller.  This took the case of privilege out of the normal case in which X reports to Miller about Y where the information reported is not a crime to reveal.  Miller's position, in other words, is no different than a reporter who witnesses a hit-run accident on the street, or a bank robbery or shooting.  The reporter has no privilege to withhold such information from disclosure just because she writes about it or keeps notes, as Miller did.

Mr. Fitzgerald conducted a seminar, make that a master class in federal prosecution to the highest ideal, in this observer's view.  It should be used as reference for prosecutors everywhere.  It is the prosecutor's job to see that a matter has been competently investigated with integrity and then make a judgment whether the facts add up to a provable crime which should be prosecuted or not.  It is not to discuss what the evidence may or may not have shown as to others who were not accused.  His job is to put up or shut up.  "Be quiet" is how he more delicately put it.

He noted that he was not registered either as a Democrat or Republican, in response to whether he might be called a 'partisan.'

I saw no false steps in Mr. Fitzgerald's performance before the world today.  He explained a complex situation using simple terms that all could understand, using homely examples, such as that of the pitcher, batter, and umpire.  It was one of the world's great prosecutorial statements.  The defense will have its chance, at trial.  Defense attorneys don't like to give prosecutors anything to chew on too early. 

What can the defense say after a statement such as Fitzgerald's?  One of his witnesses is Judith Miller.  Her credibility needs to be supported in every way, given that her employer, the N.Y. Times, has disavowed, essentially, her believability.  This may work against the Scooter, however, since she seems to lean in the direction of supporting the administration, thus why would she lie to sink him?  And why did he recently give her the green light to get out of jail and testify?  Did he think she was going to help him? 

Tim Russert seems to be a key prosecution witness.  He's denied that a key conversation he had with Libby referred to Valerie Plame.  Libby is on record, according to the prosecutor, as claiming that his source, or one of them, for knowing that Plame was CIA was Russert.  The jury will be asked who they believe, Libby or Russert.  Libby may say, Russert, don't you remember, despite what your notes reflect, that after you put your notebook away, as you were leaving my office and I walked you out the door that you told me, "Oh, by the way, did you know that Ambassador Wilson's wife had her employer, the CIA, send him to Niger...?"  Or Libby might be able to say that he thought that it was common knowledge that Plame was CIA, and that he didn't intend to out her as he thought she was already out, and so-sorry, he made a mistake, but had no guilty intent to burn her...

Fitzgerald's job is to shut such doors.  By alleging multiple sources for the information as to what Libby allegedly said, and denials, as from Russert, as to the mention of information Libby claims he said, the  prosecutor has gone a long way to giving Libby a big hill to climb.  Whether Libby knows of a convenient tunnel under the hill, based on something inside his head, is known only to him and his attorney, who seems to have his work cut out for him, or her.

Mr. Fitzgerald is a young man.  I expect him to go from this mountaintop to additional positions of great responsibility when this matter, which he seems to have handled well, is behind him.

HURRICANE FITZGERALD TO STRIKE WHITEHOUSE TOMORROW

Unless Special Prosecutor Patrick Fitzgerald decides that his two-year investigation into the outing of Valerie Plame for political reasons has turned up nothing, or plans to request an extension of the life of the federal grand jury to permit even more investigating, tomorrow is indictment day in D.C.

Leading candidates are Ken Rove and Lawrence "Scooter" Libby, not that they would do such a thing...burn the spy-wife of a diplomat to teach him not to show-up their boss, the president, by making him a liar when it came to the reason we needed to go to war against Iraq, before the invasion.

A lot depends on whether Ms. Plame (Wilson) was deeply-enough undercover to be covered by the statute making it a crime to reveal the identity of one of our undercover intelligence officers as a spy.

Yesterday it was reported that Fitzgerald's FBI guys had just interviewed her neighbors (again) to make sure that none of them were aware that she was a spy instead of an economic consultant, which was what her cover (non-official cover, or NOC) portrayed her as.  I'm glad I read all those James Bond books as a yoot' so I could follow all this.

It seems to me that the real crime here is that the president's men felt it all right to go after a critic's wife after the critic successfully called the president a liar.  The operative political principle seems to be "You haff relatives in ze old country?"  We well get you, in other words, even if we have to go after your relatives that you so carelessly left behind.  That was Germany under Hitler, not the U.S., at least not in  the version I absorbed as a kid where we were the GOOD guys who didn't torture prisoners.  Times have changed obviously, or we have.

Today we torture prisoners so we can get all that really good intelligence, as in "Tell me what you want to know and I'll tell you it's so, just as long as you please stop torturing me or my family and friends."  If it was good enough for Torquemada in the war for Christian souls and against anti-Catholic heresy, it is good enough for us in the war against radical Islamic terrorists, and against truth in the Bush White House.

On other fronts, Harriet Miers, tired of  "twisting slowly, slowly in the wind," a Haldeman phrase from the Nixon White House that referred to FBI director L. Patrick Gray, pulled her nomination to the Supreme Court this morning, thankfully.

With the decks clear we can focus on the indictments.

My guess is that counsel for Rove and Libby have been busy copping deals for resignation and probation timed to end the volcanic scandal at the moment of explosion, tomorrow.  The president then says, "Thank goodness we're past that and I'm sorry a couple of supporters were a bit overzealous.  They've left government service and have opened a think tank.  I may be calling them unofficially from time to time."  It's either that or he has to pardon them now or on his last day in office.  Probably signs the pardons and puts them in his top drawer in case he gets hit by the proverbial bus.  It's okay with me as long as we learn that if you want to come after me for opening my big mouth, that's okay, but leave my family alone, okay?  After all, this is America and there are some things we should just know without being told.  And cut out the torture, while you're at it, wontcha?.

PLAMEGATE: THE FITZGERALD INVESTIGATION

Let's say that the Bush Administration wanted to topple Iraq's Saddam Hussein whether he had weapons of mass destruction (WMD) or not, he was that bad an actor on the international stage, a currupting influence who played the U.N. and its sanctions for fools.  In addition, he acted as though he had WMD.  Bush, as leader of the free-pack-of-dogs was the big dog on the block, or rather the U.S. was.  So Bush, Cheney, Rumsfeld, and Tenet, the head of the CIA, ginned up a case for war based on WMD.  They conned Colin Powell, who wanted to be a team player more than he valued his own integrity, to look over the evidence for WMD and tell the world that it was good.  The world, make that the American man-in-the-street, said if it was good enough for Colin Powell, it was good enough for me, and off we went to war.  Iraq fell in short order, Bush proclaimed victory after landing in a jet on an aircraft carrier returning from the Gulf (under the "Mission Accomplished" banner), and then an insurgency developed that has cost almost 2,000 lives and counting.

But on the way to war a former ambassador, Joseph Wilson, gave the lie to the president on the Op-Ed page of the N.Y. Times.  Dick Cheney apparently knew that Wilson's wife worked for the CIA as an agent, which is a secret.  He passes the info along to his top aide, Scooter Libby, who gives it to Judy Miller, a N.Y. Times reporter, and other reporters perhaps, and soon reporter Robert Novak outs Valerie Plame, Wilson's wife.  Our secret agent, Jane Bond, is outed.  This happens to be a crime, IF, and only if, all of the elements of a complex spy-protecting statute can be proved, which remains open to question.  Wilson goes ballistic and the president says that whoever burns one of our spies deserves trouble and cannot remain a member of his administration, which he later backs away from when it turns out that the main culprits are his right-hand-man, Karl Rove, the man he calls "the Architect" of his re-election victory, the only time he is elected president in his own right.  The Supreme Court appointed him to the job in Bush v. Gore (2000).  So now he's the legitimate president, if you don't count the value of the incumbency acquired by foul means, appointment by the Court 5 to 4.

A special prosecutor, Patrick Fitzgerald, is appointed to investigate the Plame affair.  Miller goes to jail for 85 days but is released after Libby gives her the green light.  Her reporting, which the NY Times apologized for as wrong, supported the case for war.  It seems as though her decision to keep her mouth shut as to her sources may have had as much to do with protecting the Bush administration and its decision to go to war as it did to protecting the first amendment.  Her fellow reporters didn't buy her FA case, interestingly enough.

Fitzgerald, with the term of the grand jury expiring Friday, must either indict or close up shop.  The Washington pundits are scattered with John Dean opting for the latter and many others figuring that with so much smoke, Fitzgerald must be fanning a fire.

What does Pres. Bush do if his vice-president, the man behind the war, is indicted?  Or his top aide, Libby?  Or Karl Rove?  The sharpest knives in the presidential drawer may find themselves standing before a federal judge pleading to indictments.  That's how, in Watergate, the smaller fry rolled on the bigger fry.  Vice-president Agnew was forced to resign in an unrelated bribery case.  Attorney-General John Mitchell pled guilty to a felony.  All the presidents men went to jail.  Haldeman, Erlichman, Colson and Dean.  Nixon resigned after the Supreme Court forced him to cough up the secret tapes that made him a conspirator to the Watergate coverup.  The suffix "-gate" entered the language to indicate scandal arising from the prefix.

Constitutional law was being played out on the national stage and people were going to jail as a president resigned.

Pres. Nixon appointed a vice-president, as the 25th amendment provides, when Agnew resigned as V.P.  Then Nixon resigned.  He'd appointed his successor, representative Gerald Ford.  Who promptly pardoned him as off he flew...well...a few weeks later...to bring repose to the festering sore that was Nixon and the Watergate affair.  This made people wonder, Washington being Washington, whether the fix had been in from the beginning.  Did Nixon appoint Ford in return for a pardon?  Ford has always denied it and few if any care to challenge him on it for what's the point, Watergate is history, as is Ford, who was dis-elected in favor of Mr. Clean, Jimmie Carter, who was ousted, after the Iran hostage taking incident at our embassy in Teheran that lasted over 400 days, by Ronald Reagan, as the conservative revolution took flight and gave us Bush-41 as well as Bush-43, with a slight interruption by Clinton of Monica Lewinsky fame.  The Republicans impeached Clinton for lying about sex in the Oval Office.  It was a mess.  Washington.  And now it's even messier.  Bush is in free-fall in the polls.  And this week his whole crew of supporters may be en-route to jail.  His nomination of Harriet Miers is on life support and that's before her hearing before the SJC begins next week.  Her most avid attackers are Bush's most avid supporters.  She, and he, are thus having their problems.

What's a president to do?

Well....he does have the pardon power, doesn't he.  Clinton pardoned a bunch of big-bucks supporters of supporters on his last day in office, to Republican howls, and a few others, like Dems whose friends didn't get pardoned.

Does Bush wait to pardon Rove, Cheney, Libby?  Until the last day? 

Or is the pardon signed and sitting in his desk drawer as we speak?

Bush maintains that we needed to topple Saddam to protect American security.  Rove and Cheney were advancing that goal when they attacked Wilson by burning his CIA-agent wife Valerie Plame.  Thus their pardon is justified on grounds of national security, right?...Uh...right?

I dunno, but when you're playing with a deck that contains a game-winning joker, and you haven't seen the joker played, it remains in play.

Fitzgerald's indictment, if any there are, can be trumped by the Joker, a presidential pardon from a lame-duck president who has nothing to lose, not even a hand picked successor, as yet.