TREASONGATE: "TIME OF WAR" - Fitzgerald gives nod to Death Penalty and Espionage Act.

TREASONGATE: "TIME OF WAR" - Fitzgerald gives nod to Death Penalty and Espionage Act.

"Time of war". Fitz dropped it yesterday in closing arguments for Libby trial.

18 USC 794 (emphasis added by CS):

(b) Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates, ....information relating to the public defense, which might be useful to the enemy, shall be punished by death or by imprisonment for any term of years or for life.

The "time of war" provision in 794 takes the same violation from 18 USC 793 and heightens it to a death penalty sentence.

I've previously reported to readers of this blog that 18 USC 794, a provision of the Espionage Act, provides for the death penalty when "information" which is "related to the national defense" is illegally communicated.

Yesterday, Patrick Fitzgerald finally tipped the public off to something the Citizenspook blog has been telling you about for quite some time now (see previous CS blogs), 18 USC 794 (b) was triggered and in in play for this continuing preosecution.

From the Firedoglake live web blog of Fitzgerald's closing arguments in the Libby trial:
"Time of war". Fitz dropped it yesterday.

I've slammed Firedoglake.com for not reporting the most important aspects of Treasongate, specifically their failure to focus on possible pending indictments under The Espionage Act. However, I must give credit where credit is due and recognize the marvelous public service FDL has provided to the country with their live blogging. It's truly an immense important work that they've done and I thank them for it, as should you.

Furthermore, upon reading Jeralyn Merrit's Huffington Post shill job for the Bush cabal today, and adding it to the incredible shill job she did in covering Rove's ass by filtering Luskin and Corallo's misleading fax statements which cover for the probable truth that Rove plead guilty to certain illegal activity "prior" to being charged (see article below), I have come to the conclusion that Merrit is a Bush cabal mole that has infiltrated FDL and I hope they flush her out.

I believe FDL have misplaced their trust in Merrit.

I was very impressed with Fitzgerald's performance and that of his team. Unless Libby has a mole in the jury room, Libby is going to be convicted. But Merrit has been trying her best to appear upset that Fitz has no done a good enough job to win a conviction. here's what she said today:

"In other words, Fitzgerald missed the forest for the trees. Maybe he thought the case wasn't there. But in charging such a stripped down version solely against Libby, I have to believe at least one juror, like me, will have a reasonable doubt and refuse to convict."

Load of crap. fitz nailed it and Merrit knows it. The question is, what does Merrit really know?

Citizenspook

LIBBY WAS JUST AN APPETIZER. CHEF FITZGERALD WONT SERVE THE MAIN COURSE UNTIL FEBRUARY 2009.

Fitzgerald doesn't have to rush this prosecution. He's putting them on slow boil and come January 2009, Bush will lose his pardon power. Libby was indicted in October 2005, but the trial ends in Feb 2007. Extrapolate that 16 month timeline to future indictments and you'll start to see who the top chef really is.

Alot more information came out during this trial under oath. The sand thrown in Fitzgerald's eyes is being washed away. The next round of indictments may be coming, but there's no rush to judgment. Let the man do his job slowly and thoroughly. Let all the flavors steep into the stew.

Fitzgerald has spent so much less of the taxpayers' money than many recent Special Counsels (or Independent Counsels) while still managing to do a very efficient job as US Attorney. They have nothing on this guy. He was appointed by the Bush administration.

When the Bush cabal gets desperate as the noose tightens and the calendar brings the shadow of January 2009 closer, they may try to fire Fitz. But see my previous article on Fitzgerald wearing two hats. Bush can easily fire Fitz as the US Attorney for the District in which he presides, but Fitzgerald also wears the hat of "Special Prosecutor" investigating the Bush administration.

Trying to remove that hat will be a much different legal and political animal.

Should Fitz obtain prosecutions for Espionage after Bush is out of office, will the next (democratic?) resident of the White House offer to go down in history as the only Preseident ever to pardon Espionage?

The plot thickens. Be patient.

FITZ!

Citizenspook

IT'S THE ESPIONAGE, STUPID.

THE PRESIDENT CANT DECLASSIFY "ESPIONAGE".

[I'm not asking anybody to believe me or in me. Doubt me. Doubt everybody, start from there. The see where the evidence leads you. Don't be lazy or loyal to any blog. Any blog that asks for your loyalty is doing truth a disservice. Be skeptical and ask questions until you see a clear picture.]

From the very beginning of this case, the public has been intentionally misled by the Bush administration and their media cronies regarding the most applicable statutes pertaining to the underlying crimes involved with the leaking of Valerie Plame's CIA employment. I can't say I was the first to mention The Espionage Act, but CS was the first blog to bring you an in depth analysis of the relevant statutes of 18 USC 793 and 794.

And more importantly, this blog is THE ONLY BLOG to have asked the critical question:

WHY WONT THE MEDIA DISCUSS THE ESPIONAGE ACT?

Instead of discussing this most relevant statute, the mainstream media and even the glorified blogs like Firedoglake, Talkleft, The Last Hurrah, Murray Waas and Digby have maintained a virtual ban on in depth discussion of it even though Fitzgerald himself has told us directly that the Espionage Act is in play.

And with the stench of the criminals' certain defense, "BUSH DECLASSIFIED PLAME'S STATUS IN THE NIE", we clearly see why the Bush cabal and their media cronies have tried to distract the public by belligerently slamming the much less relevant IIPA in our faces. In short, if the IIPA was the only statute they could be prosecuted for, they wouldn't have too much to worry about. Under the IIPA, if the info transmitted was "declassified", voila, you have a very difficult prosecution.

So, please see my previous posts for a comprehensive analysis of the applicability of the Espionage Act to the Plame outing.

http://citizenspook.blogspot.com/ 2005_07_24_citizenspook_archive.html
http://citizenspook.blogspot.com/2005/ 08/treasongate-controlling-law-part-2.html
http://citizenspook.blogspot.com/2005/ 08/treasongate-prior-high-profile.html

Now let's hear Fitz weigh in on the Espionage Act. From the Fitz October 28, 2005 Libby Indictment press conference:

FITZGERALD: Valerie Wilson was a CIA officer. In July 2003, the fact that Valerie Wilson was a CIA officer was classified. Not only was it classified, but it was not widely known outside the intelligence community.

later...

QUESTION: ... it's a little hazy I think for many of us -- you say that Valerie Plame's identity was classified, but you're making no statement as to whether she was covert. Was the leaking of her identity in and of itself a crime?

FITZGERALD: ...And all I'll say is that if national defense information which is involved because her affiliation with the CIA, whether or not she was covert, was classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espionage Act....So there are people who should argue that you should never use that statute because it would become like the Official Secrets Act. I don't buy that theory...

-------------------------------------------------------------------------------

Fitzgerald mentioned 793 so here it is in part (bold print is my emphasis):

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing...or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it...

(e) Whoever having unauthorized possession...(followed by same as above)

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing...or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed...

Shall be fined under this title or imprisoned not more than ten years, or both.

(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.
----------------------------------------------------------------------------
And now 794:

(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing...or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy.

------------------------------------------------------------------------------------------------

Notice that "intent to harm the USA" is not an element of the Espionage Act. Neither 793 or 794 require "intent" to harm the country as an element of the crime.

The Espionage Act protects "classified" information, but it also protects "unclassified" information. Fitz said that "classified" information is certainly protected under the Espionage Act. But the Espionage Act, by its very definintion and clear wording, also protects information which is not officially classified but simply is "related to the national defense".

The blogosphere desperately needs to shift the debate to whether Plame's status was "related to the national defense". If you want to drive the rightwingnuts crazy, don't let them draw you into debates about "classified" vs declassified - everybody knew it blah blah blah", or "classified vs covert" or "IIPA wasn't triggered". Stick to the Espionage Act because that's where Fitz is going.

Was Plame's employment "related to the national defense"? That's a no brainer. It was. There's no way to deny it.

The question all those blogs like FDL need to be asking their readers to consider is not whether Plame's status was "classified", it was. Fitz has stated that and he wouldn't state it were it not true. Moreover, while the question of whether her status was "covert" has not yet been publicly established, The Espionage Act does not require that her status be covert, or even classified.

793 of The Espionage Act only requires, for conviction:

1. that Plame's status at the CIA was "related to the national defense"
2. that the leaker(s) had "reason to believe" such information "could be used to the injury of the United States"
3. that the person this information was leaked to was not "entitled to receive" the information

794 of The Espionage Act only requires, for conviction:

1. that Plame's status at the CIA was "related to the national defense"
2. that the leaker(s) had "reason to believe" such information "is to be used to the injury of the United States or to the advantage of a foreign nation"

Seeing as how Fitzgerald has directly stated that this Statute is in play, the public needs the Espionage Act to be debated with the same sickening repetition as the virtually irrelevant IIPA. The liberal bloggers need to stop getting into arguments about "classifed vs covert" and start hitting the phrases contained in The Espionage Act.

If her status was actually covert, then this evidence will simply provide more weight to the sentence of those convicted, but whether she was "covert" is not a necessary element for criminal violations of The Espionage Act.

Plame's job was undeniably directly "related to the national defense". The CIA was created to defend the nation. Duh. It's the espionage, stupid.

People need to stop thinking that Plame was outed to bitch slap her hubby. The President and his crime family knew this was a serious crime which might possibly bring life in prison or even the death penalty. They took a calculated risk. The real question is "why?

You might hate them, but give credit where credit is do, they are daring and highly competent criminals.
The system has not failed Halliburton and The Carlisle Group. The Bush/Neocon system works for them like a well oiled machine.

The system has failed those soldiers who are dead because of this administration's competent lies.
Saying they are idiots and picturing them as monkeys is only playing into their defense.

Plame was outed for a much more sinister reason than a bitch slap to Joe Wilson. We need to find out what that (t)reason was.

The first words out of Wilson's mouth should have been, "My wife is the victim of state sponsored espionage. Throw the book at them, throw 18 USC 794 at them".

Im still waiting for Wilson to say that. I know it's difficult for many to understand why I'm picking on Joe Wilson. But I haven't seen him target the law which will most effectively punish the criminals who outed his wife even though Fitzgerald has indicated that this law is in play.

What Wilson has done is tell the world that he doesn't believe convictions are possible under the IIPA. That really bothers me. And it ought to bother you as well. Then there's the issue of Bush 41 giving Wilson all that love. It's too strange for words and if we don't ask tough difficult questions of all the parties, then we're not really searching for the truth.

The consistent lack of attention given to the Espioage Act has me very worried about the grand scheme of this crap.

Citizenspook

PLEASE REPOST

IT APPEARS KARL ROVE PLEAD GUILTY TO MAKING A FALSE STATEMENT BEFORE ANY CHARGES WERE BROUGHT AND WITHOUT A DEAL HAVING BEEN MADE

LUSKIN CAUGHT PARSING?

Prior to being "charged" -- and without a "deal" -- it appears Karl Rove plead guilty to making a "false statement".

[UPDATED 6.24.06 5:45AM PST Updates appear in red. Please note that citizenspook will be leaving this post to linger until their is an official response from the Rove defense team as to whether Rove plead guilty.]


The public record and other statements of parties with special knowledge of Patrick Fitzgerald’s Special Counsel investigation support this report.

It appears Luskin's consistent insistence that Rove has never been "charged" or "indicted" is true. Luskin has surgically parsed his words to create a false impression that Rove was not guilty of any legal infractions.

It appears Rove plead guilty to making at least one false statement before “charges” were ever filed and without a “5K deal" or any other deal that I have been made aware of.

However, no "deal" was required for Rove to receive a statutory reduction of the “pending” sentence according to 3E1.1(a) of the Federal sentencing guidelines which provide for a "two level" reduction of sentence where a person has plead guilty and “accepted responsibility” for his actions

The 3E1.1(a) sentence level reduction is triggered by statute -- not the prosecutor – when a guilty party pleads guilty thereby “accepting responsibility” for his actions. The earlier the plea is entered, the more likely 3E1.1(a) will be triggered. There is no requirement that the person pleading guilty assist the prosecution as against any other defendant.


ANALYSIS OF LAWS, FACTS AND STATEMENTS

Chapter 3 Part E - ACCEPTANCE OF RESPONSIBILITY

§3E1.1. Acceptance of Responsibility

(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.

(b) If the defendant qualifies for a decrease under subsection (a) , the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.

[Making false statements carries a base offense level of 6, so only 3e1.1(a) would apply to a plea of guilty for that offense. This would bring the base offense level down from 6 to 4 and I don't see how Rove would get more than probation at that level.]

Please take note that the two level sentence reduction does not require the guilty party to provide the prosecution with any information as to other possible defendants. The sentence is statutorily reduced by two levels simply for "accepting responsibility" in a timely manner so as to save the prosecution the trouble of preparing for a trial. Unlike a "5K" plea agreement which requires cooperation with -- and a motion from -- the prosecutor, the 3E1.1(a) two level sentence reduction only requires the guilty party to "accept responsibility" for his own actions by pleading guilty.

If the Prosecution agrees that the guilty party has properly "accepted responsibility", he may make a 3E1.1(b) motion for a third level of sentence reduction. Statutory and case law do not require that the guilty party cooperate with the prosecutor in the prosecution and conviction of any other defendant(s). But this only applies to offense with a base level of 16 or higher.

A 3E1.1(b) reduction, like the 3E1.1(a) statutory sentence reduction only requires the prosecutor to agree that the guilty party has accepted responsibility.

For a detailed analysis of the application of these statutes please see UNITED STATES OF AMERICA v. MIGUEL MORENO-TREVINO, United States District Court for the District of Utah (D.C. No. 2:04-CR-00051-DKW).

Jeralyn Merrit of talkleft.com almost nailed this down back on October 26, 2005, when she reported that Federal law allowed Rove to correct any perjury he might have committed before the grand jury and that Rove had probably done just that by willingly appearing before the grand jury for a fourth time:

Rove may have successfully cleared himself of a perjury charge regarding his conversation with Matt Cooper during his fourth grand jury appearance. The applicable perjury statute allows him to do this:

(d) Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration
to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.

Merrit followed up on October 28, 2006 with a report titled, ">Does Rove Have a Secret Plea Deal? where she just barely missed being accurate as she postulated that Rove might have avoided “indictment” by pleading guilty to an “Information” – a charge brought by the prosecution by drafting a pleading of probable cause which is only done when the target waves indictment by a grand jury:

If they reached a deal, an Indictment is not necessary. A defendant can waive the right to be charged by Indictment and plead to an Information, which is filed by the prosecutor. It's an ordinary occurrence in my district.

The problem with the “Information” theory became evident last week when Luskin informed Merritt that there were never any “charges” against Rove. Since an http://www.co.rock-island.il.us/SAO.asp?id=376">“Information” is a “charge”, and Merritt was convinced that Luskin was speaking accurately, this theory was shot down.

Luskin also strongly insisted that there never was any “deal” at any time and that Rove cooperated from the very start with Fitzgerald.

On June 13, 2006 Merrit published a retraction of her prior theories featuring the following headline, EXCLUSIVE: No Deal for Karl Rove, wherein she reported:

Sometimes people just don't know when to cry "uncle." I do. I asked Robert Luskin this morning if Karl Rove has made a deal with Fitzgerald. His response:

There has never, ever been any discussion of a deal in any way, shape or
form.

Which is exactly what Luskin told me weeks ago. It's over, folks. Karl Rove will not be charged with a crime. He's cooperated with Fitzgerald by testifying to the grand jury five times and providing whatever information he had without a safety net. Without a 5k. Without assurances he would not be indicted. That's a hell of a risk, but Luskin pulled it off. My hat's off to Luskin.

I opined repeatedly on TalkLeft and HuffPo that Karl Rove would be charged at least with making a false statement to investigators in the fall of 2003 before a grand jury was convened -- the Martha Stewart crime. That was wrong.

I'm ready to put this to bed. Karl Rove walked. He's one of the rare subjects of an investigation who was able to talk his way out of an Indictment.


The problem with Merrit’s current analysis – as well as the similar analysis of the entire main stream media and major blogs – is that they failed to consider Rove might have “plead guilty” prior to any “charges” having been filed and without the safety net of a 5K deal, or any other plea bargain arrangement.

Merrit is an experienced attorney who is all too familiar with the fact that a person can plead guilty to breaking the law before any charges are ever filed.

She has previously discussed this issue – regarding a different criminal matter – at her blog:

One more thing: These Arizona cops and agents pleaded guilty before charges were filed. That means they didn't wait for the benefit of court-ordered discovery -and any exculpatory evidence the Government would have been required to disclose. In other words, they knew, after seeing whatever limited information the Government felt like showing them, that their goose was cooked.

And here’s a link to another case where people plead guilty “before being charged”:

Eight other people were arrested last year and two others agreed to plead guilty before charges were filed against them…

Back in her report of October 26, 2005, she discussed the possibility that Rove plead to making false statements:

On to Plan B. If Rove is charged, it might be only for making a false statement to investigators in the earliest days of the investigation when he said he didn't speak to reporters about Joseph Wilson's wife until after Novak's article was published…

If this is all the grand jury charges him with, and if, as I have speculated frequently in the past few weeks, he has cooperated against others, he could plead guilty under a plea agreement in which Fitzgerald moves for a sentence reduction under 5K1.1 of the Sentencing Guidelines, possibly down to probation.

Rove would need that motion…

Patrick Fitzgerald, and only Patrick Fitzgerald, not the grand jury or the Court on its own motion, has the power to make that 5K1.1 motion, and ask that Rove not receive a jail sentence.

And that's how Karl Rove could walk.

Will it happen? Right now, only Fitzgerald knows for sure. As a devout critic of the Bush Administration, I bring it up because I don't like rats. If Karl Rove isn't indicted, or gets a sweetheart deal, I can't conceive of any reason why other than he sang his heart out.

So close, but yet so far. Unfortunately, she never mentioned http://www.ussc.gov/2003guid/3e1_1.htm>Rule 3E1.1 which – as explained above – requires no motion by the prosecutor or cooperation by the person pleading guilty to assist in the prosecution of others for the two level reduction to kick in.

When you study those Federal guidelines, it’s important to play close attention to Note 1(a):

Note that a defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction in order to obtain a reduction under subsection (a) . A defendant may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction under this subsection. However, a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility;


So, no “deal” is necessary for the 3E1.1(a) two level reduction, nor is a “deal” necessary for the extra single reduction listed in 3E1.1(b) if the base offense level were greater than 16. Once again, making false statements is a level 6 offense so 3e1.1(b) would not apply.

RANDAL SAMBORN’S COMMENT TO RYAN LIZZA

Contrary to misleading reports by various blogs, Fitzgerald’s tight lipped spokesperson, Randall Samborn, has not always answered “no comment” to substantive questions pertaining to this investigation.

Back in October, at the time of the Libby indictment press conference, Samborn – in response to ">a question by Ryan Lizza of The New Republic as to whether there were any guilty pleas in the case – said there was no “public record” of such pleas:

Yesterday, I asked Fitzgerald spokesman Randall Samborn if there were any guilty pleas in the case. He told me there was no "public record" of such pleas. That sounded less than fully responsive, so I asked Preston Burton, a white collar criminal defense attorney, if there could be guilty pleas outside of the public record. Here's what he said:

Guilty pleas can be taken under seal--and often are--when the person entering
the plea is cooperating with the government and they do not want to tip off the
other targets or there is a safety concern. Also, plea agreements could have
already been reached but not formally entered in court.

Considering Samborn's cagey answer and the fact that we know Fitzgerald received high-level cooperation from several current and former administration officials, it is entirely possible that Libby is not the only Bushie who's been busted.
--Ryan Lizza


Another substantive answer given by Samborn back on October 28, 2006 was directed to the question of whether the investigation was ongoing to which ">Samborn responded, “the investigation will continue with a new grand jury.”

On June 13, 2006 Samborn changed his answer to this question by stating that he would not comment on the issue at this time.

The following District Court local ">rule states:


"With respect to a grand jury or other pending investigation of anycriminal matter, a lawyer participating in or associated with theinvestigation shall refrain from making any extrajudicial statementwhich a reasonable person would expect to be disseminated by meansof public communication, that goes beyond the public record or that isnot necessary to inform the public that the investigation is underway, to describe the general scope of the investigation, to obtain assistance in the apprehension of a suspect, to warn the public of any dangers, orotherwise to aid in the investigation."


This allows the prosecution to inform the public that an investigation is under way. It also allows the prosecution to inform the public about the general scope of the investigation. Everything that takes place before the grand jury, is, of course, secret, but the “existence” of a grand jury investigation is certainly a matter of public interest. Indeed, Fitzgerald’s office has kept the public informed of the status of the investigation up until June 13, 2006 when he, via Samborn, refused to comment on the status of the investigation.

The same Federal rule would apply to the statements in Luskin’s fax. If Fitzgerald informed Luskin he does not anticipate seeking charges then Rove would be out of the general scope of the investigation and both Fitzgerald and Luskin may freely publicize that statement to clear Rove’s name. Whether it be a phone call, letter or fax, the medium does not matter, it’s all about the communication. Since Luskin made the communication public, the medium – a fax – can also be made public.

If there’s things in the fax which are to be kept secret pursuant to various Federal secrecy laws – for example: statements in the fax which discuss a sealed plea agreement – then Luskin can redact them and show what’s left.

On June 13, 2006, Fitzgerald, via Samborn, refused to confirm Luskin’s comments.

I believe that when one carefully examines Luskin’s razor sharp parsing, the truth emerges. Luskin has consistently stated:

1. Rove was never “indicted” or “charged” with any crime.
2. Rove never took a deal.
3. Rove has cooperated from the start with Fitzgerald.

I am not aware of any public statements by Luskin denying that Rove plead guilty to a legal infraction pertaining to Fitzgerald’s Special Counsel investigation.

If Karl Rove has not plead guilty to making at least one false statement, then let's have an official denial from Luskin.

I have contacted Randall Samborn and asked him about the subject matter of this report. He hasn't responded to my questions at this time.

Citizenspook

PLEASE COPY LINK AND REPOST AS YOU LIKE

DOES RANDALL SAMBORN'S CRYPTIC COMMENTS INDICATE THERE MAY HAVE BEEN A GUILTY PLEA IN THE FITZGERALD INVESTIGATION?

It appears that Randall Samborn's October28, 2006 statement "the investigation will continue with a new grand jury" was NOT the only time he gave a substantive answer to a relevant question regarding the Fitzgerald investigation.

Back on October 29, 2005 Ryan Lizza -- writing for a section of The New Republic called The Plank -- claimed to have received a very cryptic answer from Samborn to a probing question about the Fitzgerald investigation:

"Yesterday, I asked Fitzgerald spokesman Randall Samborn if there were any guilty pleas in the case. He told me there was no "public record" of such pleas. That sounded less than fully responsive, so I asked Preston Burton, a white collar criminal defense attorney, if there could be guilty pleas outside of the public record. Here's what he said:

'Guilty pleas can be taken under seal--and often are--when the person entering the plea is cooperating with the government and they do not want to tip off the other targets or there is a safety concern. Also, plea agreements could have already been reached but not formally entered in court.'

Considering Samborn's cagey answer and the fact that we know Fitzgerald received high-level cooperation from several current and former administration officials, it is entirely possible that Libby is not the only Bushie who's been busted."

Wow! We are definitely not in Kansas anymore if that quote is true.

It was also mentioned at Americanprogress on November 3, 2005:

Another thing we still don't know is if anyone pled guilty in the case. As TNR's Ryan Lizza reported over the weekend, he asked Fitzgerald's spokesman Randall Samborn just that question. Samborn partially dodged the question, telling Lizza that there was no "public record" of any pleas. Not satisfied, Lizza put the question to "a white collar criminal defense attorney," who told him that "Guilty pleas can be taken under seal – and often are – when the person entering the plea is cooperating with the government and they do not want to tip off the other targets or there is a safety concern. Also, plea agreements could have already been reached but not formally entered in court."


So here we have another instance of Samborn breaking from his standard "no comment", but this one here, this Samborn statement is way way out of character. Somebody needs to grill this Lizza person on the exact details of Samborn's statement about no guilty pleas having been entered in the public record.


Furthermore, if this quote is accurate, it provides further evidence that Samborn and Fitzgerald's recent double "no comment" as to whether the investigation is ongoing and what Karl Rove's status is...appears very strange indeed.

And the greek chorus being thrown about by Firedoglake and other main stream blogs trying to sell you on looking away from those bizarre Samborn/Fitz "no comments" just got their asses handed to them once again.

Imagine Rove plead guilty BEFORE giving the Grand Jury the chance to indict him. This is perfectly legal and plausible. It happens in RICO cases all the time:

When the U.S. Attorney decides to indict someone under RICO, he has the option of seeking a pre-trial restraining order or injunction to prevent the transfer of potentially forfeitable property, as well as require the defendant to put up a performance bond. This provision is intended to force a defendant to plead guilty before indictment.


Now apply this scenario to the facts in the Fitzgerald investigation. If Rove plead guilty, there could have been...

a. no indictment
b. no deal
c. no reason for Fitzgerald to "anticipate seeking charges"

Furthermore, the guilty plea might be sealed because there's a good public policy for having those pleas sealed. The secrecy protects the integrity of the investigation as well as the identity of the person who plead. And if that persoon is also going to be a witness, than the secrecy of a sealed plea would protect the witness from harm.

If Rove offered to plead guilty on his own volition while also offering to be a witness for the prosecution then you can't really characterize that as "cutting a deal". Perhaps he threw himself on the mercy of the court?

And if that's what happened, then all of Luskin and Corallo's statements are technically true.

If Rove plead guilty under these circumstances, and that plea is sealed, Luskin's manipulation of the facts to make it look like Rove was totally cleared has been a truly disgusting trick on the American people.

Somebody with access, hint to Talk Left, ought to ask Luskin specifically whether or not Rove plead guilty to anything in this investigation. A " no comment" type answer from Luskin would be a blockbuster quote.

This scenario is a strong contender.

"Wanna go for a ride?"


Citizenspook

PLEASE REPOST COPY AND LINK AT WILL

PART TWO: FIREDOGLAKE IS ACTIVELY MISLEADING READERS REGARDING SAMBORN AND BUSH COMMENTS CONCERNING THE STATUS OF THE FITZGERALD INVESTIGATION...

[Please see part 1 below before reading this report.]

Yesterday, Christy Hardin Smith responded to a comment by one of her readers familiar with this blog as follows;

"You don’t talk about proceedings while they are ongoing before the grand jury. In the presser after the Libby indictment, the new G/J had not yet been sworn in and informed about the investigation. They have now, and we just have to sit back and let the process take its normal course. There will be no comment from Fitz, I would bet, unless and until there are more proceedings or he folds up shop. Not while the grand jury proceeds with an investigation anyway. "


This comment contains two misleading statements:

1: A direct false assertion that no new grand jury had been impaneled.

2. A blatant false implication based on the false assertion: since no new grand jury had been impaneled Samborn and Fitzgerald had a small window of opportunity to legally comment that the investigation would continue and that once a new grand jury had been impaneled they would not be able to say "the investigation will continue".

Both the assertion and the implication are patently false.

The false assertion is that the new grand jury had not been sworn in. FDL knows that's a false assertion because FDL reported back on October 29, 2005 -- in response to a New York Times article -- that the new Grand Jury had already been impaneled. Here's what Jane Hamsher wrote:


Hamsher: Looks like everyone's struggling to keep up with Patrick Fitzgerald. NYT:


With the term of his grand jury at an end, Mr. Fitzgerald said he could present any new evidence to an already impaneled grand jury if needed.

Hamsher: Already impaneled? That's new.

Then the topic was discussed by some of her readers in the comments to that report:

The fact that Fitzgerald made reference to an "already empaneled" grand jury isn't odd or newsworthy. Federal grand juries are not case-dependent; they sit around for 18-24 months and hear whatever evidence a federal prosecutor wants to bring them. Fitzgerald is just saying that, if the need arises, he can present his case for further indictments to an existing grand jury. There's always one available.
Simbaud | Homepage | 10.29.05 - 2:41 pm | #


The already impaneled is NOT new. Fitzy said he could use one of the other GJ's currently impaneled (and working on other cases) in the press conference if necessary. GJ's don't just work on one case, they can work on multiple cases and he said right in the PC he would use one of the other ones if necessary as the old one's term expired. Not new at all.

GDoyle
GDoyle | 10.29.05 - 2:31 pm | #

Pachacutec, that's my guess. This GJ was already there, so no need to impanel a new one. Saves time and removes accusations of bias, I believe, since they didn't know when starting that they'd have anything to do with THIS investigation. IMHO.
TheOtherWA | 10.29.05 - 2:30 pm | #



When reading Fitzgerald's comments at the Libby indictment press conference, all of this should be very clear to FDL, the blog with the reputation of being the clearinghouse for all things Plame. But that reputation must be seriously questioned in light of FDL's twisted false spin on this issue. I have no choice to call it spin because I cannot find another word to describe this shit. Here's what Fitzgerald said on October 28, 2006:

FITZGERALD: Let me answer the two questions you asked in one.

OK, is the investigation finished? It's not over, but I'll tell you this: Very rarely do you bring a charge in a case that's going to be tried and would you ever end a grand jury investigation.

I can tell you, the substantial bulk of the work in this investigation is concluded.

FITZGERALD: This grand jury's term has expired by statute; it could not be extended. But it's in ordinary course to keep a grand jury open to consider other matters, and that's what we will be doing.


That's why the NYT correctly stated that a new grand jury had already been impaneled. Fitz made this even more clear with another comment in that press conference:

QUESTION: You noted earlier that the grand jury's term expired but you said something about holding it open. Or will you be working with a new grand jury?

FITZGERALD: The grand jury, by its terms, can serve -- was an 18-month grand jury. By its statute, to my understanding, can only be extended six months.

FITZGERALD: That six months expired. It's routine in long investigations that you would have available a new grand jury if you needed to go back to them. And that's nothing unusual. I don't want to raise any expectations by that; that's an ordinary practice.


And Fitz made one further comment about the new grand jury:

QUESTION: Just to be clear -- you did touch on this earlier -- with the grand jury time being done, you have no plans to file another grand jury related to this case at all, is that correct?

FITZGERALD: No. I think what I said is we could use any other grand jury or avail of another grand jury. We couldn't use the grand jurors whose term has expired today any further.

It's clear when you actually use the FACTS available, that there was no change in status of the investigation when the first grand jury's term expired by statute on October 28, 2005. Furthermore, FDL had discussed this issue on October 29, 2005. So there's no way they can say they were ignorant about it having quoted a NYT article on the issue.

What the hell?

And to those that would argue that the Libby press conference was the only time Samborn and Fitzgerald deviated from their pat "no comment", I would draw your attention to Fitzgerald's public affadvait filed with the court on November 18, 2005. On page 2, Fitzgerald states:

"Moreover, because the investigation is continuing, and because the investigation will involve proceedings before a different grand jury than the grand jury that returned the indictment, traditional concerns that underlie Fed. R. Crim. Pr. 6(e) very much apply."


The statute cited here by Fitz leads to the Federal Rules pertaining to grand jury secrecy, yet the information contained in this affadavit was made public. You can read it at the Special Counsel's web site. And it was discussed by the MSM and blogs. Here's what Talk Left had to say:

Fitzgerald Confirms New Grand Jury Will Continue Leaks Investigation

Patrick Fitzgerald said in a court pleading today that his investigation of the Valerie Plame leaks case is continuing with the grand jury currently sitting in the District.


So, here we have another public statement by Fitzgerald that "the investigation will continue".


Why am I making such a big deal about this? Let me break it down for you.

FITZGERALD AND SAMBORN ARE NOT SAYING, "THE INVESTIGATION WILL CONTINUE" OR "THIS IS AN ONGOING INVESTIGATION"....any more.

Now they are refusing to comment on this issue.

Because "no comment" exists now where it did not exist in the past, we MUST consider the possibility that the status of the investigation has been the subject matter of "Sealed" activity.

And if the status of the investigation is the subject matter of "Sealed" activity, then Fitzgerald and Samborn must answer "no comment" to the very same question they were free to comment upon at earlier stages of this investigation.

The American people need to be educated as to this possibility, not dumbed down to it by shitty reporting submitted by FDL which has developed a reputation as being a leader on Plame related issues. Personally, I do not see why they deserve such a lofty reputation. They completely fumbled the ball on their parot like insistence that the IIPA was the controlling law and later had to recognize that the Espionage Act -- as discussed by Fitz in the press conference -- was actually more appropriate especially since it carries much harsher penalties than the IIPA, ie life in prison or death sentence if invoked in a time of war.

[For a detailed analysis of the Espionage Act's application to the Fitzgerald investigation please see previous CS reports, Part 1 and Part 2.]

So, if the status of the investigation has changed, and we know the President says it has, then what is happening? Yes. That is the question. Up until today, I have postulated two scenarios:


SCENARIO ONE: The grand jury issued Presentments instead of Indictments.

And we still haven't heard Luskin deny there were any Presentments although yesterday he once again denied that there were any "secret" indictments in a statement given to Jeralyn Merrit of Talk Left, since she has access, ought to ask Luskin if there were any Presentments.

I'm not saying this is what happened. I'm saying it's possible that if Fitz had been under pressure and saw interference coming, he might have educated this grand jury as to their Constitutional power of Presentment (a thorough report on the historical use of grand jury presentments will be the subject of a future CS report).

The issue then should not be whether common procedure in the Federal Courts would quash such a Presentment, the issue should be whether quashing such a Presentment violates the Constitution. And I believe that getting that very issue before SCOTUS is the most important tool we have available to us in order to preserve our system of Government as well as our national sovereignty.

I, for one, do not believe we will ever see a genuine, fair, legal election again without taking these electronic voting machines to a national bonfire. I applaud the Brad Blog for leading on election fraud issues and sticking hard to one important topic and making a difference.

Furthermore, if you're looking for either the DNC or the RNC to save us, you're a fool. They both suck lapdog style...forever beholden to corporate scum. The only Representative I can believe in for sure is Ron Paul.

I recognize the Presentment option is a long shot in this case, but I'm using this case to start a national dialogue on this repressed Constitutional power of the people.

And anybody out there in the blogosphere who tries to shut down discussion about this grand jury power obviously doesn't want us to have such power. I've seen arguments thrown about that we the people aren't qualified to initiate charges or investigations, that we'd abuse the process. Then why are we given the right to vote people to life in prison? We are legally required to serve as jurors and we ought to take that aspect of citizenship seriously. We ought to be educated from grammar school about what it means to be a Constitutionally impaneled grand juror.


And we need to take that power back and we don't need Congress fucking it up. We can force the issue when we sit as grand jurors. We can't be afraid of what might happen, we must try to be Constitutional grand jurors armed to the teeth with knowledge instead of blind statutory puppies.


SCENARIO TWO: Fitzgerald is facing a shut down of his investigation by external Government or Judicial forces.


Please be aware that both options might be happening at the same time. We the people have a right to know whether there is an investigation ongoing into the exposure of our national intelligence assets at a time of war.

Up until about five minutes ago, those were the only two options I was looking at. But I've come upon a third option and it will be the next report coming at you later today by...

Citizenspook

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