A bag of hot air?

Does he really have a case

Will the Grinch Steal Fitzmas?

John Dean -- who knows something about these things -- has some cautionary words for all the little lefties eagerly counting presents (indictments) under the tree: Don't be entirely surprised if "Santa" leaves a lump of coal in your stocking.

Dean's been extremely prescient about the legal issues raised by the Plame scandal so far -- he was, for example, the first to point out the possible applications of the 1917 Espionage Statute. So when he raises the spectre that national security (the last refuge of executive branch scoundrels) might trump whatever evidence of criminality the special prosecutor has gathered, I give him a respectful hearing, even though I don't agree with this analysis. Here's what he says:

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

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

Dean adds the caveat that if Libby, Rove or other as-yet unindicted co-idiots perjured themselves or conspired to obstruct justice (and in Libby's case, that looks like the smart way to bet) Fitzgerald may decide to stick around and nail their asses to a jailhouse wall.

While people have been irrationally exuberant, I think John Dean, who, as Billmon said, been right about so much, is probably wrong here. The WH is shitscared about indictments and target letters have already been sent. Forget the nonsense about the website, the real indicator is that the WH has been achingly silent about Fitzgerald and his investigation. Why? Because they're scared. They haven't smeared him because they feel he's coming for them.

But I also think Dean's assumption is wrong here. Revealing Valerie Plame's name and then lying to the FBI cannot simply be justified by national security. Her name and status alone were state secrets. Someone knew that when they used her name.

I think someone below Rove and Libby may be tagged with the actual crime. But their problem is that they used that information, then lied to the Special Prosecutor about it. Four trips to the grand jury is not a good sign.

You have a conflict: starting the war for national security reasons, but violating a state secret to do so against a domestic critic who was basically a footnote to history?

What you have to never forget is that the CIA pushed this to DOJ. The CIA's general counsel had to make the case to George Tenet that significant damage had been done to the CIA covert operations that they needed to persue this. This wasn't something a judge thought up. The CIA had to make the case internally, and then to Justice. There was no free ride here. Everyone going in knew this would end up at the White House.

I think that mitigates much of the national security defense.

The only reason this has gone this far is very simple, but may never be raised in open court.

People died.

The revelation of Brewster Jennings, not Plame's NOC status, is the real intelligence disaster. No one outside of CIA may ever know what kind of intelligence disaster that became. I think, in the end, that is the driving factor. A priceless US intelligence asset was destroyed because of politics.

The problem, and Dean admits this, is that this case went way beyond the original crime when people thought they could outsmart Fitzgerald. People lied in ways which are just not defensible.

Also, people send signals. If people were not going to face indictment, lawyers would know. Fitzgerald would have indicated that their clients would not face further proceedings and he certainly wouldn't send out target letters. Federal prosecutions have a predictable nature. Target letters go out only when they think a true bill is coming from the grand jury. Especially when dealing with the White House. No one is going to jerk WH staff around, not even Fitzgerald. If he weren't going to prosecute, he would be issuing a report. It is unlikely, given the likelihood of civil action, he would say nothing. It's also highly unfair to the targets to leave an unspoken cloud of doubt over their heads. Even without an indictment, questions about their actions would remain.

What also needs to be understood is that if there are indictments, serious political damage would have been done. It's not Watergate, this is national security and the idea that aides to the President and VP violated national security for a political grudge is intensely damaging.

If Fitzgerald was dealing solely with Niger, then yes, I could see Dean's point. But I think the fact that the CIA pushed this referral along means they believe there was damage.

Given Bush's record, people keep looking for the deus ex machina. The problem is that there probably isn't one. Bush is in a tight position and he can't bail out Rove and friends without taking a hit, and Bush doesn't take hits for himself, much less staff.

posted by Steve @ 11:18:00 AM