Wednesday, June 21, 2006


[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.
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.


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.

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.


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...