Criminalizing Politics? Or Reading a Complaint?

The cries that Fitz is criminalizing politics are getting almost as shrill as the insinuations that Obama must be hiding something because he agreed to hold off on releasing the summary of communications with Blago’s folks. There’s the NYT, relying on "some lawyers" that just happen to be just two lawyers that have scrapped with Fitz in the past (Bob Bennett, who represented Judy, and Michael Monico, who represented one of Blago’s fundraisers).

But now some lawyers are beginning to suggest that the juiciest part of the case against Mr. Blagojevich, the part involving the Senate seat, may be less than airtight. There is no evidence, at least none that has been disclosed, that the governor actually received anything of value — and the Senate appointment has yet to be made.

And then there’s that legendary dealmaker, Willie Brown.

But if his bargaining over the Senate seat was for political gain, not financial benefit, then he ought to hold tight.

That said, I can’t help but take stories like this personally. Any politician’s downfall reflects on every other politician. It demeans your history, your record. People look at you and figure, yeah, you just didn’t get caught.

Yet these cries rely on two things: an exclusive focus on the Senate seat allegations at the expense of the other allegations, and a neglect of the actual details of the complaint  (to be fair, the NYT’s Johnston admits he’s focusing on just the "juiciest part" of the complaint, though even there, he doesn’t consider how that "juiciest part" plays into the two charges in the complaint). 

So here’s what the actual complaint says, to a non-lawyer.

First, there are two charges. Neither relies entirely on the Senate seat part of the complaint. I’ll deal with the charges in reverse order.

Charge Two: The Wrigley Field Deal

The second charge, which relies entirely on the Wrigley Field part of the complaint, charges:

Beginning no later than November 2008 to the present, in Cook County, in the Northern District of Illinois, defendants ROD R. BLAGOJEVICH and JOHN HARRIS, being agents of the State of Illinois, a State government which during a one-year period, beginning January 1, 2008 and continuing to the present, received federal benefits in excess of $10,000, corruptly solicited and demanded a thing of value, namely, the firing of certain Chicago Tribune editorial members responsible for widely-circulated editorials critical of ROD R. BLAGOJEVICH, intending to be influenced and rewarded in connection with business and transactions of the State of Illinois involving a thing of value of $5,000 or more, namely, the provision of millions of dollars in financial assistance by the State of Illinois, including through the Illinois Finance Authority, an agency of the State of Illinois, to the Tribune Company involving the Wrigley Field baseball stadium; in violation of Title 18, United States Code, Sections 666(a)(1)(B) and 2.

In English: Blago and Harris, who were agents of an entity (the State of Illinois) that gets more than $10,000 from the federal government and also agents of an entity (the Illinois Finance Authority) that gets $5000 from the state of Illinois, used their position to demand a thing of value (the firing of Trib editors) in exchange for another thing of value (financial support for Wrigley Field).

Fitz goes to some length to prove the whole "agent" thing–I’ll spare you that bit, because it’s boring.

What this charge comes down to, though, are two details. First, Blago knew he was exchanging something of value, because he and Harris discussed the value at some length.

In apparent reference to the prospect of IFA assistance for the Wrigley Field deal, ROD BLAGOJEVICH then asked, “what does this mean to them? Like $500 million? What does it mean to [Tribune Owner] in real terms?” HARRIS replied, “To them? About $100 million . . .maybe 150.” ROD BLAGOJEVICH said that he thought “it was worth like $500 million to ‘em.” ROD BLAGOJEVICH and HARRIS then discussed the details of the deal the Cubs are trying to get through the IFA. HARRIS said that it is basically a tax mitigation scheme where the IFA will “own title to the building” (believed to be Wrigley Field), and the Tribune will not “have to pay capital gains tax.” HARRIS explained that the total gain to the Tribune is in the neighborhood of $100 million. ROD BLAGOJEVICH said, “$100 million is nothing to sneeze at. That’s still worth something, isn’t it?”

And, believing he had struck a deal, Blago took action to fulfill his half of the deal.

After hearing that Tribune Financial Advisor had assured HARRIS that the Tribune would be downsizing or making personnel changes affecting the editorial board, ROD BLAGOJEVICH had a series of conversations with representatives of the Chicago Cubs regarding efforts to provide state financing for Wrigley Field. On November 30, 2008, ROD BLAGOJEVICH spoke with Sports Consultant, the president of a Chicago-area sports consulting firm, whose remarks during the conversation indicated that he was working with the Cubs on matters involving Wrigley Field. In that conversation, ROD BLAGOJEVICH and Sports Consultant discussed the importance of getting the IFA transaction approved at the IFA’s December 2008 or January 2009 meeting, because ROD BLAGOJEVICH was contemplating leaving office in early January 2009 and ROD BLAGOJEVICH’s IFA appointees would still be in place to approve the IFA deal. On December 3, 2008, ROD BLAGOJEVICH spoke again with Sports Consultant and explained that ROD BLAGOJEVICH had control over state funds designated for use in connection with science and technology, and which could be used to pay for improvements at Wrigley Field. Later that same day, ROD BLAGOJEVICH spoke with Cubs Chairman and said that he could make state science and technology funds available to the Cubs without having to go through the legislature, and suggested that the Cubs come up with proposals that would allow the use of such funds.

Now, there’s a lot here that Fitz doesn’t give us. For example, does he have any record of the conversations between Harris and Nils Larsen, the Tribune financial advisor, which would make this quid pro quo clear? Does Fitz have any proof that the Trib folks tried to keep their end of the bargain? Given that Fitz has spoken with Larsen and subpoenaed the Trib since the arrest, he probably doesn’t (or didn’t, when he wrote the complaint) have all the details from the Trib’s side. And does Fitz have clear evidence that the second action above–use of the sciences and technology funds for Wrigley Field–was connected to his efforts to get editors at the Trib fired? 

But the critical question, really, is whether Fitz can prove that 1) Blago did have reason to believe the Trib was going to deliver it’s side of the bargain, and 2) whether Blago made it clear that his intercession with the IFA was completely contingent on his belief that he was getting something of value–the firing of Trib editors–in return? Note that while Fitz gives us the transcripts of conversations that prove some of this, he doesn’t give us all of these conversations.

Charge One

The first charge–which is more nebulous–is where the Senate seat comes in. But the charge also references Blago’s actions in the Wrigley Field deal and the pay-to-play scandal, in which he required campaign donations before he would take certain actions as governor. This is the honest services charge that people complain is too vague.

From in or about 2002 to the present, in Cook County, in the Northern District of Illinois, defendants did, conspire with each other and with others to devise and participate in a scheme to defraud the State of Illinois and the people of the State of Illinois of the honest services of ROD R. BLAGOJEVICH and JOHN HARRIS, in furtherance of which the mails and interstate wire communications would be used, in violation of Title 18, United States Code, Sections 1341,1343, and 1346; all in violation of Title 18 United States Code, Section 1349.

By mentioning 1349, Fitz is relying on the following:

Any person who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy. 

That is, to prove Blago guilty of this crime, Fitz only has to prove that Blago attempted to defraud the people of Illinois of his honest services, not that he succeeded in doing so. The definition of honest services relies on some IL laws that describe what a public figure should and shouldn’t do. Here’s just a taste:

Pursuant to the criminal laws of the State of Illinois (720 ILCS 5/33-1(d)), ROD BLAGOJEVICH is prohibited from receiving, retaining, or agreeing to accept any
property or personal advantage which he is not authorized by law to accept, knowing that such property or personal advantage was promised or tendered with intent to cause him to influence the performance of any act related to the employment or function of his public office.

Again, I’m not a lawyer, but this is what this says to me. 1) Blago is prohibited from doing certain things because he’s a public figure, including taking property that he knows was given to him in order to influence his decisions as Governor, and 2) if he even attempts to do that–to take money or something else of personal value to influence his decision-making–whether or not he succeeds, then he has committed honest services fraud. 

I’ll let the lawyers argue over whether that is too flimsy a basis on which to charge. But I do want to correct some impressions on the part of Dave Johnston and Willie Brown  that Blago never attempted to get something of personal value.

The Children’s Hospital

First, given that this charge also relies on the pay-to-play scam, Johnston and Brown ought to be considering the children’s hospital as much as the Senate seat (that is, Johnston’s "juiciest part" doesn’t exist independent of this more mundane alleged corruption). That part of the complaint, incidentally, depends on the testimony of a cooperating witness (I think this is John Wyma).

According to Individual A, on October 8, 2008, during a discussion of fundraising from various individuals and entities, the discussion turned to Children’s Memorial Hospital, and ROD BLAGOJEVICH told Individual A words to the effect of “I’m going to do $8 million for them. I want to get [Hospital Executive 1] for 50.” Individual A understood this to be a reference to a desire to obtain a $50,000 campaign contribution from Hospital Executive 1, the Chief Executive Officer of Children’s Memorial Hospital. Individual A said that he/she understood ROD BLAGOJEVICH’s reference to $8 million to relate to his recent commitment to obtain for Children’s Memorial Hospital $8 million in state funds through some type of pediatric care reimbursement.

After Hospital Executive 1 refused to return Blago’s fundraiser’s calls, Blago started taking steps to withdraw the $8 million allocated to the hospital.

ROD BLAGOJEVICH: The pediatric doctors – the reimbursement. Has that gone out yet, or is that still on hold?”
DEPUTY GOVERNOR A: The rate increase?
ROD BLAGOJEVICH: Yeah.
DEPUTY GOVERNOR A: It’s January 1.
ROD BLAGOJEVICH: And we have total discretion over it?
DEPUTY GOVERNOR A: Yep.
ROD BLAGOJEVICH: We could pull it back if we needed to – budgetary concerns – right?
DEPUTY GOVERNOR A: We sure could. Yep.
ROD BLAGOJEVICH: Ok. That’s good to know.

In other words, Blago prepares the groundwork for withdrawing state funding from the hospital because he didn’t get a $50,000 contribution from the hospital’s CEO. Fitz ends his narrative on the hospital just a day after he ends his narrative on the contacts with Obama’s team (November 14 in the case of the hospital), so he is not revealing a number of the discussions that happened since. Though he made it clear at his press conference that Blago still hasn’t signed that order.

One of Blago’s Deputy Governors resigned the day following the arrest and Fitz executed a search warrant on a Deputy Governor’s office the day of the arrest, so again, he may well be collecting ongoing information on this. But Wyma’s testimony and these intercepts provide a good deal of evidence that Blago was making the decision on the hospital entirely on whether or not get got his campaign cash. 

Also note: the children’s hospital deal (and the other campaign finance schemes) are the parts of the investigation that may have been most badly affected by the Trib’s scoop on December 5 that Blago had been wiretapped. That’s because the story also revealed the cooperation of John Wyma, who first described this scheme to investigators, and who is a key witness to these activities. 

The Senate Seat

Which, finally, brings us to the senate seat. There are two details worth looking at closely. First, a number of people said that Blago never made a clear quid pro quo offer to anyone regarding the senate seat–the suggestion being that Blago never got beyond the hypothetical stage. But that’s why Fitz mentioned the SEIU deal during his press conference. After laying out Blago’s discussions of how he could get something of value in exchange for the seat–including a 501c4–Fitz describes this conversation (which, because it was a phone call to Washington, handily involves interstate wires):

On November 12, 2008, ROD BLAGOJEVICH spoke with SEIU Official, who was in Washington, D.C. Prior intercepted phone conversations indicate that approximately a week before this call, ROD BLAGOJEVICH met with SEIU Official to discuss the vacant Senate seat, and ROD BLAGOJEVICH understood that SEIU Official was an emissary to discuss Senate Candidate 1’s interest in the Senate seat. During the conversation with SEIU Official on November 12, 2008, ROD BLAGOJEVICH informed SEIU Official that he had heard the President-elect wanted persons other than Senate Candidate 1 to be considered for the Senate seat. SEIU Official stated that he would find out if Senate Candidate 1 wanted SEIU Official to keep pushing her for Senator with ROD BLAGOJEVICH. ROD
BLAGOJEVICH said that “one thing I’d be interested in” is a 501(c)(4) organization. ROD BLAGOJEVICH explained the 501(c)(4) idea to SEIU Official and said that the 501(c)(4) could help “our new Senator [Senate Candidate 1].” SEIU Official agreed to “put that flag up and see where it goes.”

On November 12, 2008, ROD BLAGOJEVICH talked with Advisor B. ROD BLAGOJEVICH told Advisor B that he told SEIU Official, “I said go back to [Senate Candidate 1], and, and say hey, look, if you still want to be a Senator don’t rule this out and then broach the idea of this 501(c)(4) with her.”

Fitz has Blago discussing the Senate seat in terms of a longterm job for himself–notably, with Blago’s description of using the 501c4 as a means to hide the quid pro quo–both before and after he made the offer to the SEIU Officer. Blago’s attempt to get this quid pro quo didn’t have to be successful, he just has to have attempted it. Note, we know the SEIU has spoken with Fitz either before or after he made this arrest, so this is another area where he likely has more evidence than he has let on.

And then, finally, we get to Candidate 5, the alleged attempt by JJJ’s fundraisers to give Blago $1.5 million in exchange for the seat for JJJ. Fitz actually gave us very little detail on this scheme–noting only that Blago says someone approached him on October 31 and then noting that Blago was discussing approaching these people again the week before he was arrested. The Trib matched up the likely people involved in this scheme–matching both an October 31 conversation and, more significantly, a December 6 fundraiser which some attendees associated with JJJ’s senate bid. Significantly, the Trib revealed that one of the attendees at the fundraiser was already under scrutiny.

[Harish] Bhatt, whose two Basinger’s Pharmacy outlets were searched by the FBI last week, has been the focus of a state and federal investigations into whether campaign donations were made in exchange for regulatory favors.

Bhatt is a prominent Indian businessman who helped the state’s top pharmacy regulator win his job. The Tribune reported last year that state pharmacy auditors probing allegations of Medicaid fraud at Basinger’s complained that their bosses thwarted the investigation, allegations Bhatt has adamantly denied in interviews with the Tribune.

Now, this is the "juiciest" allegation in the complaint. But as I said, Fitz doesn’t give us all the details on it, providing just two data points.

But that’s largely timing!

He doesn’t include details of the fundraiser, which basically occurred as the complaint was being submitted. More importantly, he couldn’t have described what went on at the meeting between Blago and JJJ–just hours before Blago was arrested–because the complaint was approved on December 7 and the Blago-JJJ meeting took place on December 8. JJJ has said that he was not offered the senate seat at the meeting, but he did not say anymore about Blago’s side of the conversation, leaving open the possibility that Blago made a clear quid pro quo offer at the meeting, one that we wouldn’t know about.

In other words, everyone is complaining that Fitz hasn’t proven this, the juiciest part of the complaint, while they ignore the rest of the evidence in the complaint. But they don’t recognize that this juicy bit is something for which the proof would have happened after the drafting of the complaint–but just hours before, Fitz said, the FBI arrested Blago to stop Blago mid-crime spree. We don’t know whether Fitz got more evidence between December 7 and December 9 when the FBI made the arrest; but there are certainly reasons to believe that he did. 

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65 replies
  1. klynn says:

    Your connecting the dots is very “Plame-like”…But then, this investigation may be connected in some remotely strange-but-true fashion…After all, it is Fitz. Here’s hoping to lots of bean spilling…

  2. klynn says:

    BTW, I hope you write a number of posts today…I personally need much copy between me and the fig leaf…It’s SO troubling and ruins any thoughts of Santa Claus, not to mention, it makes me shutter…

  3. nextstopchicago says:

    Somewhat OT – Just thought I’d point out that Rich Miller at the Capitol Fax blog says that the Jackson “phone tip from the feds the night before the arrest” is untrue. In this post:

    http://thecapitolfaxblog.com/2…../#comments

    he refers to a previous post of his, which I don’t remember seeing.

    • emptywheel says:

      Thanks for that. I’ll see if I can chase down the reference.

      Representing the call as the Feds saying “job well done” IS completely inaccurate. I think there have been multiple accounts that JJJ got a call to warn him that his name would appear in the complaint.

      But I’ve always wondered–particularly given JJJ’s disavowal of the Senate seat in his presser–whether they called him to suggest that if he wanted to get out of trouble, he probably didn’t want to spread the news that Blago HAD all-but-offered him the seat.

  4. WilliamOckham says:

    Disclaimer: I have not been paying that much attention to this stuff.

    ew,

    This bit jumped out at me:

    On November 30, 2008, ROD BLAGOJEVICH spoke with Sports Consultant … In that conversation … ROD BLAGOJEVICH was contemplating leaving office in early January 2009

    Really? Did he think he was getting that cabinet appointment? Or was this just a pressure tactic.

    • emptywheel says:

      I think a lot of his (delirious) thinking was premised on the notion that, after the ethics law went into effect, it wouldn’t be very fun to be governor anymore.

  5. scribe says:

    I also zeroed in on this:

    In that conversation, ROD BLAGOJEVICH and Sports Consultant discussed the importance of getting the IFA transaction approved at the IFA’s December 2008 or January 2009 meeting, because ROD BLAGOJEVICH was contemplating leaving office in early January 2009 and ROD BLAGOJEVICH’s IFA appointees would still be in place to approve the IFA deal.

    It could be (a) he expected to be getting a cabinet appointment, (b) he was going to appoint himself to the Senate seat, oc (c) he was bullshitting the Trib to move the deal forward.

    I guess he didn’t expect (d) an impeachment inquiry or (e) Fitz coming knocking.

  6. Leen says:

    Blago dancing with the devil

    “ROD BLAGOJEVICH: We could pull it back if we needed to – budgetary concerns – right?
    DEPUTY GOVERNOR A: We sure could. Yep.
    ROD BLAGOJEVICH: Ok. That’s good to know.”

    Ot Ew all
    did you watch Matthews rip up “Chhainy” last night. Frank Gaffney was on and Matthews lost it in a good way. David Corn sat back and enjoyed the thrashing of Gaffney Matthews has been hammering away at the torture findings…especially hammering on Cheney
    Go to “Was Invading Iraq right”
    http://www.msnbc.msn.com/id/3036697/

  7. pinson says:

    A bit OT, but still: the SF Chronicle has been at the bleeding edge of the newspaper industry collapse – firing dozens of writers and staff, combining sections (Sports and Business are a single section some days of the week) and generally cutting back on both quality and quantity over the past few years. And while all this is going on, what’s their big splashy move into the future? They hire Willie Brown – retired/discredited hack political boss – to write a column a couple/few times a week. Now he’s using his column to defend the indefensible. Bravo SF Chronicle! That’s some new media change we can believe in.

  8. radiofreewill says:

    This situation seems somewhat like one of those Wild Animal shows, where somebody rigs-up the Jungle to snap a motion-triggered flash photo of the Nocturnal Wildlife caught around a piece of Juicy Bait.

    So, now we have the photo – Blago the Rat, wearing six cellphones, backed-up to a big piece of cheese, and surrounded by various other interested parties.

    But, we’re only just beginning to understand the Zoology of who all those other Animals are in the picture, as well as their various interests in the cheese…

  9. Mary says:

    Maddow played devils advocate a bit on this last night, but her guest, Scott Turrow, was very solid.

    The only problem I have is that Fitzgerald seems to have had such a different reaction to the Bushie crime sprees he was finding as Spec Coun than he did to the Blago spree. You know, if he’d made some public records or hatch act allegations and moved up agenda on Libby/Rove etc. he might have still had the same issues he has with Blago – that you leave some gaps in your case – but that kind of airing and transparency might have stopped the destruction of more emails, the destruction of the CIA and other tapes and evidence, stimulated some action earlier by the NYT etc. and left us in 2005 in a very different place than we were left. I appreciate his concern about the crime spree and more power to him for stopping it. He just seems to have a little selectivity when it comes to which crime sprees he chooses to stop.

    I know the Senate seat is the juicy story for many, but given that about 95% of the sitting Senators would need to evolve to be better than scum, it’s not like Blago could pollute the pool much. For me the jaw dropping evil part of the allegations involved the children’s hospital, and the firing of reporters is bad, but a hard banner for the guy who tossed them in jail (even if you think he did the right thing) to carry.

    • BooRadley says:

      I know the Senate seat is the juicy story for many, but given that about 95% of the sitting Senators would need to evolve to be better than scum, it’s not like Blago could pollute the pool much.

      Wiping liquids off monitor.

    • Neil says:

      Maddow played devils advocate a bit on this last night, but her guest, Scott Turrow, was very solid.

      Maddow assumed the role of the skeptic (like the opinions about his case being put forth in the press) rather than going for the “talk me down” gambit. It was a good choice. How could she argue otherwise?

      Turow worked as Assistant U.S. Attorney in Chicago for eight years. That’s three common threads in Fitz and Turow’s career paths …which may be where it ends. I don’t think Fitz’s next move will be Sonnenschein Nath & Rosenthal but I don’t know.

      I keep thinking there is a next bigger job for him to tackle. God knows DOJ needs people like him. As I recall, he contemplated taking some time off after January 20 to consider his next move. I don’t know if he was characteristically being not presumptuous and wants to stay on, or whether he has decided to make a change. Eight years is a long time … but Chicago may be his kind of town. I guess it comes down to whether he feels his work is done (and he is asked to stay.)

    • LabDancer says:

      Do have this right? You’re complaining about Fitz “selecting” to go after corrupt Dems, as opposed to presumptively far more corrupt R-thoritarians?

      He’s the US attorney in ILLINOIS fer cryin’ out loud!

      You go to a barn dance with the intention of dancin’, you’re pretty much stuck with dancin’ with those in the barn.

    • WilliamOckham says:

      I certainly agree with this:

      For me the jaw dropping evil part of the allegations involved the children’s hospital,

      Folks ought to spend a little time pondering the nature of a man who would manipulate funding for hospital pediatric care so that he could shake down a hospital exec for a campaign contribution.

    • Leen says:

      As one of the regular folk listening I was struck by the “language” Fitz used to describe the severity of Blago’s crimes “has brought us to a new low” “Appalling” “Lincoln would roll over in his grave” Did not hear this strong of language when it came to the Plame outing. The strongest words by Fitz that I heard were “the V.P. has clouds hanging over that office”

      ———————————————————————–

      “Mary, Lab Dancer, William Ockham, EW you folks have helped this peasant understand and believe that there are folks with integrity in the system.

      I thought at the end of the Libby trial Fitz hit the ball into congress’s court? Did they do everything they could do to open the gates even further for Fitz to get at Rove or Cheney?

  10. JohnLopresti says:

    On the Chi stew, the excerpts are pretty raw in the wire taps. There are many conversations principals would have to re-innuendo differently if they knew it would appear in print, in those stages of fundraising and pork distribution. I liked the shock and challenge in WB’s rejoinder from his observer post. Perhaps it is more difficult for Democratic party officials to steer clear of these kinds of scandals, given their typical obligation to contact many more donors than Republicans, more ears, more potential for exposure; but the verbatim wiretaps are anathema. I am glad WB stood up for the ‘profession’. One recent newsitem in Chi involving sports has been the conglomerate ownership selection of some entities of that outfit for Ch 11, viz., Tribune Co, which owns several other cities‘ papers. It is true, though, that Nyt and others have called attention to the most defensible subsegments of some of the charges of quid pro quo, ah, yes, politics. Media exposees develop, elected representatives develop virtuous rightings of the course, politicians next electoral cycle profess purified honesty, donation limits are voluntarily or compulsorily accreted, the bounds in law become unrealistic because there is some workaround and a few crafty supporters are succeeding in getting chosen candidates publicity of the sort that gets them elected. Consider the recent presidential campaign and the difficulty the two principal parties’ candidates experienced with ‘public’ financing. Crew has a nonplussed post currently concerning US Chamber, which Fec recently could not “decide”, the vote was 3-3, so the ingenious routing of campaign funds USCoC devised is unlikely to face any penalties. Though Fitzgerald seems to offer us hope some of the most egregious local raw politics can improve from close oversight. Almost makes me appreciate Mukasey’s verve in asserting public corruption is an important focus in his tenure.

  11. Mary says:

    13 – I remember reading an interview where Turow was asked about that and he hemmed and hawed a bit. IMO, it’s bc he came out VERY strongly about Comey’s Padilla presser and I think that probably was a bit of a wall between he and Comey’s best friend hanging out much.

    http://www.washingtonpost.com/…..Jun11.html

    I opted for bluegrass over ivy, so I can’t really say much on the school tie front.

    • emptywheel says:

      FWIW, I have a grad degree (or two, depending on how you’re counting) from a Big 10 degree–one that in days of yore even used to have a decent football team.

  12. Mary says:

    Wow, this was an ez google
    http://blogs.wsj.com/law/2006/…..ott-turow/
    link to the Turow interview I remembered

    Do you know Chicago’s U.S. Attorney Patrick Fitzgerald? What do you think of him?

    Pat and I share an educational pedigree [Amherst College, Harvard Law School], so I’ve always joked that he’s an exceptionally well-educated man. I’ve done a little legal business with him but do more Amherst-related business with him. We do see each other. I have a lot of respect for his abilities but, as a defense lawyer, I disagree with a lot of things his office does, but that’s to be expected. There are some people in the defense community that recoil at the mention of his name. In fairness to Pat, I do think that he sees both sides. He’s reinvigorated the U.S. Attorney’s office and brought a lot of very hard cases and won them. It’s a more an aggressive place now than when I was there and that has its hazards.

  13. Citizen92 says:

    I’ve been wondering why Blagjo does not just try and mount a Siegelman ‘prosecutorial misconduct’ defense.

    I’d sure like to see Karl Rove comment on that one.

  14. LabDancer says:

    I myself queried the how thin was the support for the Complaint as PARTLY detailed, outlined and summarized in the accompanying Affidavit.

    But actually the Affidavit, as I alluded to then, could have been even thinner – – indeed, Fitz could have chosen to omit ANY and ALL detail, and still have complied with both the purpose and the spirit of the Complaint process.

    Put another way, its the combination of how generally the Complaint is framed on the one hand, and the several allusions in the Affidavit to there being more of substances – – brought about in part by the clear assertion of their being more ‘facts’ [conversations, whether recorded by bug or wiretap or as reported by persons involved] that ’saves’ the Complaint.

    Now, if Fitz were a more iconic Bushie prosecutor, or if he had no otherwise established his credibility as an exceptionally competent, straight shooting prosecutor with the ammunition to back up his bluster [as he has done in the investigations that led to the convictions of former Governor Ryan, Levine, Ata, Rezko, Black, Libby etc etc etc etc, I dare say there would be a lot more in the chorus, with a lot better voices, raising whether or not this is another Siegelman.

    But even then, those voices would be joined in a chorus of speculation.

    Clearly, what happened here is that, and it more than any particular crime is supported in the Affidavit, this investigation was interrupted by an event [or events, likely all connected around the Senate seat sale], by circumstances which placed Fitz into a Hobson’s Choice:

    [1] Wait for one or more apparent crimes to unfold more thoroughly towards the point of less doubt as to their criminality and MacBlago’s intent, yet risk the possibility that some of those crimes might have some very nasty constitutional consequences [including causing harm to the Obama administration which it has acted in any serious or knowing way to bring on itself, at a time of unusually grave national urgency], or

    [2] Step in now to save the possible, but, were it happen, far more significant harm to the nation, despite losing opportunities to gather facts by which Team MacBlago cements its criminal aims.

    As far as I’m concerned, Fitz acted with the sort of courage, wisdom and public interest sense we’ve come to see as characteristic of his style of operating. The criticism we’re hearing now is a natural function of the degree of doubt the public has the right to raise at all times, and an unnatural function of the condition the country’s federal justice system is in after almost 8 years in the hands of Bush. To a certain extent, there is something healthy about the skepticism, and frankly very healthy about the MSM itself being skeptical about the exercise of official government authority – despite all the ironies involved [and this MacBlago story is chock-a-block with irony].

    Now, in the context of this quite predictable crucible of media and public scrutiny, the route Fitz has chosen to take is really quite cool: He’s thrown out enough raw meat into the public arena to justify the actual charges in the Complaint [MacBlago has no basis to whine about being in this situation.], but otherwise done as much as possible to protect the ongoing investigation – and indeed his public concoction is sufficiently opaque to allow for him to attempt a number of different finesse moves. The interim product is not pretty – though of course crime itself and public corruption in particular is not pretty either; but it could be quite effective, as to which, again, as you, and I, and others have observed before, only time will tell.

    A prosecution could proceed on just on this evidence in the Affidavit – – and thin as the gruel is, in the sense of there being a lot of room for interpretation and fancy moves, it’s still the case that the ultimate outcome would be very much in doubt. That’s the test for a proper Complaint, and this one by Fitz makes that test, and more [though just a bit more – as little more as he could get away with]. That, frankly, should shut the door to any complaints as to Fitz’ competence, motives and professionalism.

    The fact that is has not – together with the fact that the bulk of the criticism aimed at Fitz and at Obama in this unfolding story is coming from R-thoritarians, present and past, and otherwise from old-line pols – suggests that all the mysterious moves in how Fitz is working this is disturbing some vested interests.

    Footnote: This appears en route in one of those classic step-by-step-up-the-stairway-to-ultimate-authority investigations, all in a prosecutor’s dream tide pool of burgeoning public corruption life – – and for the comfort of RoTL and others here, including myself, there’s no reason to believe it’s pre-ordained to end at lord and lady MacBlago.

    • readerOfTeaLeaves says:

      I do beseech thee, sir, not to offer false hopes. Yet, given the myriad connections amongst so varied and disreputable a cabal of villians, I retain a dim optimism that at some point ‘The Fat Lady Will Sing’.

      And when she does, I am convinced that her garment size will be considerably smaller than that of our grape-eating obscenity so hideously depicted by twolf’s genius.

      And per WmOckham’s remark about Blago and the Children’s Hospital; indeed, it took me considerably less than a second when first I read the news to wish that vile cur a hundred years cleaning bedpans among ‘bald headed children’ undergoing chemo. Despicable.

  15. Mary says:

    Did UK ever have a decent football team? LOL While I love baseball and like ok football, I’ve never been a big basketball fan which means that going to school in Indiana and later at UK was kind of like going to a tent revival and sitting around reading a Twilight novel wearing a prochoice t-shirt.

    A Louisville reporter broke stories on UK’s recruiting scandals while I was there and you didn’t have to wait to read about the guy getting death threats – all you had to do was go read a few bumper stickers. I almost got punched by someone who is now a member of Congress over an illadvised basketball reference I made after a very bad performance in the final four, but having lived with Hoosier hysteria, I had good reflexes.

    • BooRadley says:

      1946 Kentucky 7–3 2–3 8
      1947 Kentucky 8–3 2–3 9 W Great Lakes Bowl
      1948 Kentucky 5–3–2 1–3–1 9
      1949 Kentucky 9–3 4–1 2 L Orange Bowl
      1950 Kentucky 11–1 5–1 1 W Sugar Bowl 7
      1951 Kentucky 8–4 3–3 5 W Cotton Bowl 17
      1952 Kentucky 5–4–2 1–3–2 9 19
      1953 Kentucky 7–2–1 15

      They had some guy named Bear Bryant as coach.

      David Stern has pretty much ruined basketball. IMHO, the international game and college are much better, because the referees actually give the defense a chance by occasionally calling a foul on the offense.

      High school basketball without a shot clock, is still imho the purest form of the game. Minus the shot clock the inherent value of each possession is much more apparent to the casual fan. The decision to shoot takes on much greater importance, because if one coach chooses, there will be a lot fewer possession/shots. I understand there are problems without the shot-clock, namely the stall.

      Can’t believe the American League hasn’t got rid of the DH just to save money on pitching.

  16. Mary says:

    23 – yes, although she did at the very end use that “you talked me down” reference.

    24 – nope. My issue was that he was willing to jeopardize his case on Blago to stop a crime spree, but that he didn’t seem to be as willing to jeopardize his Libby/Rove etc. to stop the WH crime spree. That was the selectivity. The potential disaster – ending up with someone in office as a result of a successful crime spree- was pretty similar. OTOH, live and learn.

    • LabDancer says:

      Maybe it’s just me, but your comments on #24, about Fitz’ ‘not being willing to use his’ whatever to ’stop a WH crime spree’ seems off base on its own, and frankly uncharacteristic of you.

      We all know that Comey parachuted Fitz behind enemy lines on that one, with the specific powers identified in couple of memos outlining a mandate which derived from delimited powers derived from a legislation which was not NEARLY as open-ended as the ‘classic’ or ‘true’ special prosecutions such as the ones into Watergate, Iran-Contra, Monica’s Honor [or ‘on her’],

      The scope of Fitz’ inquiry into the Plame outing being so de-limited, and moreover the facts that [b] Fitz’ mandate was subject to being jerked entirely by whoever was the AG at the time, [c] he had no mandate to provide a report, [d] he was required to report in some form to the AG or his designee for a significant period of time AFTER Comey left the DOJ, and [e] as we know from the corresondence last year and this among Congress, Fitz and the Bush government, AG Mukasey quite obviously bound and gagged him, leaving him only enough freedom to make a few little finger wiggles – – I really don’t get how Fitz could EVER have boosted his Plame outing mandate into a platform from which he could denounce ‘ongoing Bush administration law breaking’.

      Recall as well that throughout that period Fitz was US attorney for the District of Southern Illinois, with no dimunition in the responsibilities of what we all know is, shall we say, one of the busier US attorney outposts – and that his specific assignment to investigate the Plame outing and follow THAT whereever it might go in terms of crimes and incidential crimes was IN ADDITION to his day job.

      So I ask: in precisely what ways do you say Fitzgerald has shown ’selectivity’ as to what political stripe gets the benefit of his labors?

  17. Mary says:

    26 – If you live in KY, you are never really sure if Bear Bryant actually lived, or was a legend told to the children…

  18. Mary says:

    OT – Looks like Mueller may not be willing to prop up Cheney as much as formerly.

    http://www.warandpiece.com/blogdirs/008655.html
    Laura pulls a quote from a Vanity Fair piece that goes like this:

    I ask Mueller: So far as he is aware, have any attacks on America been disrupted thanks to intelligence obtained through what the administration still calls “enhanced techniques”?

    “I’m really reluctant to answer that,” Mueller says. He pauses, looks at an aide, and then says quietly, declining to elaborate: “I don’t believe that has been the case.”

  19. Rayne says:

    OT — Chris Matthews on CNBC pontificating about economic stimulus package under Obama.

    Sure sounds like he’s bucking for a job.

    Sweet baby angel hair pasta.

    • freepatriot says:

      Somebody slap some mustard on a Gooper and throw him to me!

      how about a NADA gooper

      we could invent a new parlor game:

      Guess Who Ain’t a Repuglitard Any More*

      I was saddened to learn that at a time of national trial, when a president-elect is preparing to take office in the midst of the worst financial crisis in over seventy years, that the Republican National Committee is engaged in the sort of negative, attack politics that the voters rejected in the 2006 and 2008 election cycles.

      *according to the wisdom of lush limpbag

      and the answer is ???

  20. Neil says:

    27- You’re right. The setup was her presentation of the issues raised by skeptics. The “talk me down” part was the conversation with Turow …and she claimed he did. In fact… in her first question.

    RM: Is the evidence in the criminal complaint .. does it indicate a strong legal case against the Governor?

    ST: … yes, it indicates a very strong case against the governor.

    Looks like Turow is willing to stake his reputation on it. I did read somewhere where Turow thought Fitz was aggressive, more aggressive than when he served in the office.

    Maddow and Turow on the strength of the Blago criminal complaint. Youtube

  21. Mary says:

    I’m not sure if my comment was uncharacteristic of me or not. I think Fitzgerald did a very nice job on the conduct of his Libby suit and in particular his efforts to avoid getting deep sixed by the covert and classified info issues were really in their own class. I have defended and supported a huge big chunk of what he did and some of it was as fine a work as I’ve seen, but not all and I’m not a groupie.

    I thought both sides did a lousy job and agency and said so and wasn’t surprised when they judge did pretty much the same. I can’t be a part of the “we” in, “We all know that Comey parachuted Fitz behind enemy lines on that one” bc I’ve never completely bought into that and I’ve said that lots of times. I think Comey was doing nothing more than trying to protect what he perceived as his “clients” (not the country, but Ashcroft and the WH).

    Most people forget that at the time everything was coming out, we were very close to having the independent counsel law revived, or some alternative form, and that even people like Joe Lieberman were calling for independent counsel. LIEBERMAN. Now think what an aggressive independent counsel would have done with so many vioaltions of law – from presidential records acts to torture conspiracies to completed torture killings to videos of torture to massive illegal surveillance programs and on and on.

    Even if Comey followed normal regulations on outside special counsels, what would happen is that the special counsels would be required to make reports to Congress and any disagreement between the AG (acting) and the special counsel would be aired to Congress, even if the AG ultimately prevailed. And any normal outside special counsel would have balked at having such a narrow mandate – that they could ONLY examine (as Judge Walton later confirmed) the outing of Plame and obstruction directly related to that, and not even do anything with something like OTHER leaks of security information and OTHER crimes that they came across.

    So Comey inhoused the investigation – something that I have always said I was very unhappy about. And about the very first thing that Fitzgerald said when he was appointed was a flat out “no” to whether there would be any reports provided to Congress, so you know the topic had come up between he and COmey. Then Comey gave a very narrow mandate of investigation to Fitzgerald – so narrow that Fitzgerald had to clarify in writing whether or not he was even allowed to look into and bring obstruction charges.

    I admit that a huge big chunk of my misgivings were quelled when Fitzgerald held his press conf announcing the Libby charges, but I’ve pretty much kept the same belief that Comey wasn’t trying to save the world as much as to save Ashcroft and the WH and give them the best deal they were going to get with public, press and even members of Congress all calling for a REAL investigation.

    I agree with all the points made in your list of how he was limited – I’ve hammered on those very limitations over and over – but I pretty much laid out what I thought he could have done and why he might have and all the issues relating to Comey leaving were just more reason for him to do it sooner rather than later.

    I didn’t accuse Fitzgerald of being evil or a bad lawyer – but when I see a discrepancy that’s what I call. What I said was that with Blago, Fitzgerald went ahead and moved quickly at jeopardy to the case so as to prevent the crime spree from yielding a result that could not really be judicially addressed. It does leave some gaps in his case and some weak spots that waiting things out could have shored up.

    The selectivity isn’t Dems v. Reps, it’s Fed Executive Branch v. other. From all reports, Fitzgerald had his case info pretty early on, including the fact that emails were not being preserved as required by law, one of the items I mentioned. Given everything he was exposed to in his investigation, and his contacts with FBI, CIA, Comey, etc. there’s no way he was unaware of the WH crime spree, including torture. No way.

    So going into the election year, if he had gone ahead, as he has done here with Blago right before Blago appointed someone, with a less strong case and included more publically allegations as to Presidential Records violations as obstruction, we might have been able to stop some other crime sprees. And as evil as Blago making deals about the children’s hospital is, W’s bombing of child after child after child after child is kind of evil in and of its own right.

    Fitzgerald could have gone forward with charges in 2004 – he might have put some aspects of his case in jeopardy, the way he has put some aspects of his case in jeopardy with Blago, but it might very well have stopped a pretty damn big crime spree.

    While Fitzgerald has been able to be very exorcised over the unbelievablity of the corruption by IL politicians, he’s never shown anything like that passion over the corruption and crime originating from and carried out by his friends with DOJ. Maybe he really thought he could pull the rabbit out of the bag with his Plame investigation – that’s why I say live and learn. Maybe he’s at a different point in his life/career. Or maybe he just really didn’t care nearly as much about the DOJ crime spree. I don’t know him and can’t say and I know that he is pretty deified by a whole lot of people I respect.

    Personally – I can’t ever deify someone who woke up every morning and, whatever his cases, CHOSE to work for torturers, knowing that they were torturers. I watched him defend the snot out of indefensible provisions in the patriot act. I watched him get very put out and anyone would dare to complain to his office about what was going on at GITMO – a very Pilate type of reaction. I watched the introduction of evidence by hooded tortures in the Salah case and the making of that case law, even though the case itself was ultimately not a big winner for him, it certainly helped make law on letting in coerced testimony elicited by hooded men who were not subject to any penalty in the court for perjury. I didn’t like it.

    I think he’s a wonderfully good lawyer and fantastic litigator. He’s worked on some devastating cases – from mafia cases to terrorism cases – that I think have to shatter a part of who you are and that also open you up personally to a lot of danger and I respect that – I respect that from Comey for that matter. Tremendously – esp from people with families. But he’s also smart enough that he knew all the problems with the Pat Act that he was defending, he knew that HIS justice dept was involved up to its ears in depravity at GITMO – he knew he was working for torturers.

    Every day.
    For years.

    So I’m not as enthusiastically a fan on every front. I also am not a fan of Comey and very strongly not a fan of McCarthy and I have to kind of wonder a bit if that’s his close personal friends circle – I don’t know that it is, but there have been mentions of that.

    If all that makes me a bad person, that’s what it does. It’s not actually uncharacteristic of me to be a bad person, there’s a pretty damn long list on me.

    I still absolutely agree with what he’s done on Blago — and I still kinda wish that he’d been in the same mode he’s in now when it came to trying to stop the WH and DOJ crime sprees with what ammo he had in 2004, even if it might have jeopardized his ulitmate case. I don’t see how he would argue that it was ok to jeopardize one case to stop the crime, but not the other, at least, not on an “importance” front.

    BTW – I don’t think “AG Mukasey quite obviously bound and gagged him” as much at any of the operative times- Gonzales and Ashcroft via their emissaries and possibly McNulty, but most of it was over by the time Mukasy showed up.

    So I ask: in precisely what ways do you say Fitzgerald has shown ’selectivity’ as to what political stripe gets the benefit of his labors?
    As I tried to say shortly in 12, and longer in 27 – I wasn’t saying anything at all about the “political strip” and I don’t know where you are getting that. I did say that IMO he approached the WH criminal spree differently than the gov’s criminal spree and I’ve tried to now say it *longer* fwiw. I’m guessing that longer doesn’t really change much, though. Not many will agree with me and I’ve been in that spot before. I can deal.

    • LabDancer says:

      Thanks for this, and of course I withdraw the point I made in the first paragraph of my comment at #40.

      Where to start? Well, you can always resign your job because you know that elsewhere beyond your control the government and indeed the agency you work within are treating laws like fortune cookies. Or you can stay on the ‘inside’ and do your best to maintain discipline and adherence to the Rule of Law over the things you have control over and otherwise keep the embers going unto the day when the Bush administration, too like all things, passes. It’s a very tough call, and owing to unrelated circumstances, not one I and a lot of my contemporaries in service for years as government prosecutors were called on to make.

      But others I worked with ‘in the day’ I know said ‘Enough’, and were punished for it, and still stayed, their standards and honor intact, and I’m simply not going to tar all of them with the same brush. Do you think Thomas Tamm sold out? I would say: far from.

      You conclude Fitz has somehow fundamentally broken faith with his oath of office by staying [I don’t mean you’re pointing to any particular complicity – I think you mean in a more general sense.]. I’m not sure; maybe; and if so, most likely in a way that gets discussed in advanced philosophy and semantics classes. Perhaps one of the reasons that Fitz has been able to stay on is specifically owing to his namesake’s success in getting him appointed a US attorney in Illinois – and maybe not even by any mechanics Peter Fitzgerald foresaw or could have foreseen, but by sheer luck.

      Consider where David Iglesius would be right now if New Mexico from 2002 through 2006 one of those states where one of the two major parties could pretty much regarded as in the bag, as opposed to what it became and now clearing is: a battleground state in the process of turning blue. Would congress critters be looking to put the screws to his continuing in the job in order to get things done to tip the odds more in their favor? There’s no suggestion that he was having any difficulties in complying with the Bush DOJ interest in going after border runners, or gun offenses [or kiddie porn, tho I don’t recall whether his office had to deal with that], so what put him, and his fellow members of the Purged Eight – or Nine or whatever number was really- on Rove’s Radar, was being called to deliver on a Bushie ’service’ and not delivering – or even just being perceived as not delivering.

      One of the fortunate effects of Fitz being assigned the Plame investigation is that it became, obviously, very difficult for Rove to pull on Fitz the stunts we know were pulled on the Purged 8/9, and in Minnesota, and Michigan, and Alabama, and Mississippi, and Arkansas, and probably a lot of other places – and maybe even UNIQUELY difficult.

      If you were to design a game in which each player is issued the same number of ‘life’ cards, with each challenge costing you a ‘life’ card to stay in the game, and the winner being the last one remaining alive, wouldn’t you think that being placed in the one position on the board which is the most difficult for challengers to get to would significantly enhance your chances of winning?

      • LabDancer says:

        Related to this is that many seem to have the impression Fitz as some sort of preternaturally endowed DOJ prosecutor. His name comes up time and time again in the context of: who should be AG; otherwise, who should be running DOJ; who should be put in charge of a vast inquiry into Bush administration crime breaking; for crying out loud, even who should be named to fill in for Obama as US Senator for Illinois!

        I don ‘t mean to suggest that Fitz is not a talented prosecutor – he is; or that he’s not among the best of the 96 US attorneys in the nation today – though at this point in the Reign of the Water Boy hat’s not much to brag on.

        But:

        [a] before Bush was gifted the White House there were many, in the hundreds, DOJ lifers as gifted in terms of talent, skills and integrity as Fitz showed himself to be in the Libby case , and more;

        [b] Fitz was nicely placed in New York to take advantage of certain dramatic events involving attacks on the WTC at the beginning of two consecutive decades; and

        [b] there was only one Plame investigation.

      • freepatriot says:

        there is a part of the blagoff scandal that is being ignored, for some reason (shiny objects maybe) and this goes to the heart of it:

        One of the fortunate effects of Fitz being assigned the Plame investigation is that it became, obviously, very difficult for Rove to pull on Fitz the stunts we know were pulled on the Purged 8/9, and in Minnesota, and Michigan, and Alabama, and Mississippi, and Arkansas, and probably a lot of other places – and maybe even UNIQUELY difficult.

        I’ve seen kkkarl and rezko (???) mentioned in passing

        I’m thinking that the TRUE scandal in all this smoke and mirrors has rover’s fingerprints on it, not Obama’s

        I share Mary’s opinion of Fitz, and I generally distrust him and all other government officials (watergate and vietnam can really fuck kids up)

        and I think fitz (and my muse) are ignoring kkkarl’s role in this shitstorm

        jus my two cents …

        • LabDancer says:

          And, you know, you and Mary could be right on this, and by extension, going into the Way Back Machine, on the implication that some other prosecutor in the same position Fitz was in [and all other things being equal] may well have decided to indict Rove.

          But if so, at least insofar as indicting Rove goes, I think that would far more likely go to one of Fitz’ [to me] apparent short-comings that to his integrity – and its integrity, I gather, that concerns Mary.

          To clarify on my point about his not indicting Rove as constituting a poor exhibit to point to in drawing implications against his integrity:

          Each of the charges that Libby ended up facing were based, and critically, to some degree or another, and in at least one and in several instances in more than one way, on what Libby said in interviews conducted by the FBI – at least one of which [both of which? Ms ew is Yoda on this] was conducted before Fitz was appointed by Comey – or what Libby said in response to questions asked by Fitz while they were before the Grand Jury – or both.

          I defy anyone to go thru the two lengthy sessions Fitz had with Libby in front of the Grand Jury and NOT be positively impressed by:

          [a] Fitz’ command of what Libby had said previously, and
          [b] Fitz’ doggedness in not leaving Libby wiggle room on a number of points on which it turned out that Libby would be contradicted by testimony from others or by documentary evidence or both;

          but at the same time, there were many instances where I think Fitz missed out on following up and therefore lost out on exploiting

          [a] some things that Libby said in the first GJ session – which perhaps is somewhat foregivable, except that Fitz failed to return to the same ground after having reviewed the transcript from that first session, and after finally getting the picture cleared up from the testimony of Cooper certainly and to some degree Miller;

          and

          [b] some other things Libby said in the second GJ session, again partly by choosing against hauling Libby’s ass back in front of the GJ [on which there are some technical problems which may have stood in his way, I grant]

          but

          [c] spots in both sessions where Fitz simply failed to be anything nearly approaching as PRECISE as necessary in going after the LANGUAGE being used by Libby to obfuscate, and therefore failed to use employ anything like the doggedness he showed in areas that it appeared he’d mapped out in advance, or where he thought he and Libby were talking about the same thing.

          Now, insofar as the goal of the exercise was to fry Libby’s ass, there’s a point where enough is enough, and I’m not going to argue that Fitz should have gone further in that when clearly he could have. However, that was not at ALL the goal of the exercise [I am not arguing Fitz ever misconceived or lost track of the proper goal: His last address to the jury at the Trial of Libby should suffice to dispel concerns about that.]

          But what this tells me is this: If Fitz had communication problems with Libby – – someone who, with all due respect for Fitz, Diane Rehms was able to expose for what the basket case of weird neuroses and hangups he clearly is in what was for the most part a softball volunteer radio interview in the Happy Days part of the Bush administration – – those same limitations showed up again in his dealings with that fat slippery Rove, who specializes in keeping that “buff” physique apparently more or less upright while driving his extremities as hard as he can in several different directions simultaneously which shod in a pair of skates with over-lubricated ball bearings on their bottoms.

          To give you an example of a prosecutor with a more fortuitous bent in taking on someone like Rove [besides suggesting my own small self, because I enjoyed doing it and I imagine I had my successes in that range, but who in hell ever really can judge their own strengths with any reliability, right?], I’m going to throw out someone you all know, or should: David Boies.

          Most here will recall his work on the losing side in Bush v Gore 2000, but many may forget his quite astounding work in nailing Bill Gates in cross and thus MicroSoft for its systematically anticompetitive business plan and operations.

          I’m not saying that Boies necessarily would be equipped as well as Fitz, who’s shown he’s got a pretty impressive bag of tools in a range that extends from taking down mobsters through terrorists through corporate fraudsters and corrupt pols. – frankly I think there are a number of cases where I’d far rather have a Fitz than a Boies on my side.

          But I am saying that my impression is that Boies can do a number of things better, and some I think far better, than Fitz – – and that taking down an animal like Rove would be an example.

          But again – that comes down partly to what the point of the exercise is – and in any event it’s really a function of the old saw: horses for courses – – neither of which has anything to do with bringing Fitz’ integrity into issue.

          • freepatriot says:

            I think Fitz is afraid of kkkarl

            and that goes directly to moral fiber, in my book

            Marcy probably just lacks the information to make the case …

      • emptywheel says:

        John KAss at the Trib argued back in the day that Comey appointed FItz so as to make it impossible to fire him in ND-IL.

        Also, don’t forget the ability to work through judges, as well as elected officials.

  22. LabDancer says:

    This thread might have exhausted the subject of the post, and maybe not, but either way I’d like to add in a bigger thought, in part deriving from my point on Mary’s suggestion of Fitz being somehow ’selective’ [As to his targets? or the tools he employs? not sure – Mary hasn’t answered my query as to what she might mean.]:

    Whereas Charge #2 is framed in terms of a specific crime, Charge #1 is framed in terms of a CONSPIRACY – known to lawyers as an ‘inchoate’ crime.

    The word ‘inchoate’ implies ‘incomplete’, but conspiracy is only ‘incomplete’ in the sense of the crime the agreement is about has not been committed – in theory because it was abandoned for some reason, including that it was interrupted. In that, as I think Ms ew has noted from the protection of her usual IANAL disguise [rendered the more dubious by it being generally irrelevant anyway but particularly irrelevant in her case] the crime of conspiracy is similar to the crime of ‘attempt’.

    But that similarity fails to capture other senses in which the crime of conspiracy, depending on how it is framed, can be different from attempt: larger, more of a vacuum in terms of picking up acts and behavior that are related to the story and may themselves constitute crimes, or even superficially [I emphasisize superficially, in the sense of appearing so when considered outside of the larger context] not criminal, even innocuous.

    Related to that is that a charge of conspiracy can be framed in a manner that vacuums up a lot of behavior OVER TIME – including back so far that it includes reference to actually-completed crimes that were completed so FAR back in time that there’s now some argument as to whether the time for prosecuting it has expired in the meantime.

    That’s been a concern we’ve seen expressed a lot, elsewhere but also here:

    that by the time the revelations about torture in, say 2002 and 2003, start coming out, unless those become the subject of aggressive investigation with the possibility of the fruits of it leading to prosecution, something the Bush administration has been generally forestalling [and even with the few where it has acted, both we don’t know anything of what’s going on with the CIA tapes destruction case and not much of what’s going on with the US attorney Purge case], there will be an awful lot of doubt about the ability to investigate them towards a reckoning that fits within the traditional and most accepted model of American law and order.

    [Outing hearings, with consequent clearing of the air and shamings and confessions and apologies and askings for foregiveness, are said, or at least implied strongly, to have worked in the South Africa Truth and Reconciliation commission on apartheid and related abuses and crimes – but the context is quite different there, and, meaning no slight, such tools are usually more common in far more ‘traditional’ societies in which the Rule of Law has not been fully established.]

    But that’s not nearly so much a problem with conspiracy charges, for many reasons, some suggested above, but including also these two:

    firstly, that a conspiracy charge can be framed in terms of the COVER UP being included, such that for example where there’s been systemic torture at Abu Ghraib ending before January 1, 2004, and thus the prosecution of it for its criminal commission being foreclosed January 1, 2009, weeks before the Obama administration and the stronger Dem congress even have a chance to set up a process for exploring its ‘possible’ criminality and at least months before indictments might flow from such a process, if there were acts committed TO FURTHER the COVERING UP of such crimes [One might argue – I’d love to – that the very existence of Bush administration itself through its second term was so dedicated to this as one of its precepts, it has been foundational.], the CONTINUING ADHERENCE to a plan of maintaining silence on those crimes means the crime of conspiracy is still occurring now, renewing itself with each passing day, and thus the passage of time bringing with it limitations defences for some things done is in and of itself not that much of a problem.

    To be clear then: it’s not just the threat of being charged with lying or perjury or obstruction of justice that would affect the process of a post Bush administration commission of inquiry into its law-breaking – its the prospect of being found to out to be caught up in a charge of conspiracy to cover up law breaking, in some particular like with Abu Ghraib, or in respect of covering up various manifestations of law breaking, or in respect of a general responsibility for instigating, encouraging, fostering and ordering a wide range of laws being broken.

    Fearsome tool, the conspiracy charge.

  23. selise says:

    The selectivity isn’t Dems v. Reps, it’s Fed Executive Branch v. other.

    given his position on the patriot act, i don’t think it’s this either. i think the most likely selectivity is that torture done in the name of national security (and done to people fitz may not have much sympathy for) is not to in the same league as a crime he sees as done solely for personal benefit and one that “harms” members of the political elite.

    just my wag.

  24. WilliamOckham says:

    Completely off-topic, but Laura Rozen is looking some Italian (language expertise, not food). I bet that’s interesting.

  25. recoveringlurker says:

    Hi EW, I am in the Chicago area. There is a lot of “noise” floating around from all kinds of sources about the way the charges were brought and related matters. A host on a local WCPT program, our local progressive station, which carries many Air America people, last weekend was appalled by the manner of arrest and especially Fitz’s and others’ comments at the press conference, which he thought deprived Blogo of a fair trial. He noted a WSJ op-ed on this matter by an ex- Justice Department official, one VICTORIA TOENSING, whose history he clearly did not know. Lots of comments about the inability to get an impartial jury. Also uninformed comments from various sources about it the Senate thing being only talk and, therefore, not a crime, and how Fitz should have waited.

      • SparklestheIguana says:

        Kind of an “Omg, how many fucking Republicans are there gonna BE in this administration?” He has a rep as a moderate, but he also presided over Clinton’s impeachment, in my book that’s a taint….

  26. nextstopchicago says:

    The latest from the Sun-Times.
    http://www.suntimes.com/news/m…..od.article
    Not particularly new, except that it’s in an article instead of a gossip column, which should imply stronger sourcing:

    >A source with the Obama camp strongly denied Emanuel spoke with the governor directly about the seat, saying Emanuel only spoke with Blagojevich once recently to say he was taking the chief of staff post.

    >But sources with knowledge of the investigation said Blagojevich told his aides about the calls with Emanuel and sometimes gave them directions afterward. Sources said that early on, Emanuel pushed for the appointment of Jarrett to the governor and his staff and asked that it be done by a certain date.

    I’m amused by the URL, which ends rahm18good.article. Not sure whether this is editorializing in the URL … and if it is, are they saying “rahm good” or “good article”.

  27. nextstopchicago says:

    And in a second piece, the claim that Rahm wants the seat back is reiterated:
    http://www.suntimes.com/news/m…..18.article

    The article is about Alderman Pat O’Connor, a 5th district hopeful. The article states that Rahm “was believed to be leaning toward O’Connor, in part, because the alderman might be amenable to giving up the seat at some point.”

  28. Mary says:

    44 Way epu’d and I’m not sure how much my personal views matter, but I’ll try to answer some of what you raised LD.

    I understand your point on staying within a corrupt legal office, with knowledge of the corruption, in order to try to help the things over which you have control. In a non-law office setting, and in a situation involving generalized corruption, I would personally probably make a different choice but I could understand those who decide to stay on and try to make things better in quite a few settings.

    But while a see lots of gray in many situations, I only see black and white, good and evil, and cause and effect in the situation of lawyers choosing to serve silent for publically acknowledged torturers. It’s not a tough call for me and as a result, it’s not a situation where I personally can pretend to respect the “other” choice made by the lawyers involved.

    Do I think whistleblower “sold out” when they stayed on? Actually, yes. Maybe I have to make that “unequivocally” yes even. That doesn’t mean that my heart doesn’t break to hear Tamm interviewed and look at what he went through. LHP and I had a bit of “a talk” at one point bc she thought I was saying that any lawyer who didn’t become a whistleblower was worthy of contempt. That’s not what I meant, though. I would never be able to counsel a member of the intelligence community to BECOME a whistleblower, bc if you have their personal interests as your responsiblity, it’s far to risky.

    But I do believe unequivocally that once you know that your “law firm” and your “law partners” are engaged in breaking the law and are using the firm as a part of the machinery of their crime, you have an affirmative duty to break your relationship. I can understand the whiffle/waffle of a situation where the DOJ, as such a large entity, has some people getting buy with and directing corruption, but it has not become the offical policy of the Dept and you are fighting to clean house by both handling your own work cleanly and becoming an internal firewall of sorts. I don’t believe in it as a course of action, but in many circumstances I can understand it and wouldn’t feel compelled to say I disagree with it and wouldn’t necessarily feel contempt for and disgust towards those who stayed the course. But the fact that they are lawyers in a joint cooperative legal association does, imo, make for a very different setting than other employees of agencies.

    The bigger trigger for my very personal and very bitter and angry feelings in this situation, though, is that we aren’t just talking about “corruption” We are talking about torture and torturers. We are talking about acknowledged war crimes. We are talking about using the JUSTICE department to commit the unforgiveable. Whatever the private misgivings and how those were handled, the leaks of memos preceding and during the Gonzales confirmation hearings should, imo, have been the line crossed, the place where no lawyer with any decency stays on and silent. The surviellance program was awful too, and IMO should have provoked a similar reaction, but an opposite decision by a fine lawyer who was trying to right the course wouldn’t have made me angry and left me feeling like they have no place whatsoever in the profession.

    Torture is a different creature though. Unlike a lot of this board, I’m a Christian and am happy to claim my faith and that no doubt influences my outlook. Anyone who can look at the crucifix and claim Christianity as a cloak, but work for torturers, is just unspeakable to me. Anyone who can, as a non-Christian, work for torturers is equally unspeakable (they just don’t provoke as personal and visceral a reaction from me). In any event, to me, once the Gonzales memos came out, coupled as they were with the prior Abu Ghraib revelations, any decent lawyer would have engaged in a public resignation, with letters to the editor as to why and with efforts to make others resign.

    What leaves me totally chagrined is that lawyers who did not give one rats ass about torture and never did one thing to help the nation disavow it, have eagerly claimed a glory of bravery for being willing to resign – over something that the FISC was about to go after active participants in. Well goody for them. They still aided, abetted, and assented by silence to torture.

    And the reason the nation is so rudderless imo has a tremendous amount to do with the disinterest of all of the lawyers of DOJ and administration to the Gonzales revelations. The United States Attorneys, AUSAs, lawyers for the CIA, the State Dept, the even the freakin EPA for Gods sake – they didn’t have any public reaction. So the lawyers entrusted with defending justice, the men and women that the bulk of the nation looks to for a barometer on what is right and what is wrong – all just went on about their business, publically at least, with no expression of any kind about the torture.

    While there weren’t many voices of leaders on many things anywhere in the country for the last 8 years, at least there were some examples, here and there. A diplomat who resigned over the war, a lone Senator who voted against the Patriot Act – but where were the employees of DOJ who copied the papers on their letters of resignation, sent a public petition to the WH and Congress requesting that a torture advocate not be made AG, the offers to resign if torture was not investigated and prosecuted?

    I don’t think that Fitzgerald or any other DOJ lawyer who stayed on after the public revelations of torture came out so much broke faith their oaths of office, as that they broke faith with their profession and humanity. With the result that a nation looking to its Justice Dept to see the response to the revelations saw – nothing. Nothing except assent and disinterest. Imagine if that had been what the nation saw when Nixon told his AG to fire the special prosecutor? A bootlicking acquiesence and otherwise silence. Would we be the same nation today? I don’t think so.

    I’ve never taken advanced philosophy and semantics classes, so I probably wouldn’t argue the case well if it came up there. Would the nation be different if, once it was very definitely demonstrated (as it was by Gonzales’ Jan 2002 memo if nothing else, that there was a decision to commit acts that would be war crimes under the war crimes statute, but to move the locus of those acts to a place where a court would have a difficult time asserting jurisdiction and to bless those acts through DOJ exculpatory opinions) that the Executive branch was engaged in torture and was using the DOJ to launder the war crimes, if that revelation had provoked public resignations and protests at DOJ?

    I don’t know. I can only give a less philosophical, biblical metaphor. It wouldn’t have taken a thousands, or hundreds or tens, even, to save Sodom.

    One good man can do the right thing and it may end up all to no avail. But if no one chooses to do the right thing, there isn’t really any question left to be answered.

    So it’s not so much a matter of breaking faith with an oath of office, it’s a matter of breaking faith with humanity.

    So if the biblical story doesn’t resonate, I’ll try paraphrasing Arlo Guthrie instead:

    You know, if one person, just one person does it they may think he’s really sick and they won’t take him[seriously]. And if two people, two people do it, in harmony, they may think they’re both faggots and they won’t take either of them[seriously]. And three people do it, three, can you imagine, three people walking in [and saying I won’t work for torturers]and walking out. They may think it’s an organization. And can you, can you imagine fifty people a day,I said fifty people a day walking in [and saying I won’t work for torturers] and walking out. And friends they may thinks it’s a movement.

    Well, *they* may have, but we’ll never know. Bc it never happened – it’s not just lyrics that start with One Person.

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