The Corner

Kath,

I hear you, and I am trying to be sensitive to the fact that Fitz is a close friend of mine, and that I might be cutting him too much slack. I honestly don’t think so, but it’s certainly possible.

BUT, what would the dissatisfied folks say if Pat didn’t charge Rove, Rove then went out and said something publicly that didn’t square with the facts as Pat knows them, and Pat then turned around and used that as a basis for charging him? I assume the same people would then all be complaining that it had been irresponsible for Pat not to have given Rove fair warning that he was not in the clear just because he hadn’t been charged today.

So now, Pat (a) doesn’t charge Rove which he probably could have done, and (b) gives Rove fair warning (which will help Rove enormously in handling the inevitable media onslaught here), but we’re gonna be mad anyway, in the face of that good fortune, because Pat doesn’t add a statement that sounds like a final announcement? That seems a little presumptuous to me.

I used to be one of the officials who decided whether people in New York got charged federally. We had what was known as a “deferred prosecution committee.” In the main, this group dealt with cases in which defendants were clearly guilty of some crime but were arguing that, in the greater scheme of things, the equities weighed against indicting them and that we should thus exercise our prosecutorial discretion leniently. (Usually, the claim was that the seriousness of the crime was outweighed by the consequences indictment would pose to the person’s family, career or finances; or that the person’s good character and charitable works weighed in favor of giving him a pass.)

Many of these petitions were tough calls because the evidence of wrongdoing was undeniable but there really were competing, mitigating considerations. Some of the agonizing ones took a long time to decide.

Every now and then, when no decision had been reached, an impatient defense lawyer would call me to complain – usually mildly – that we were taking too long to make up our minds, and the client was in a state of high anxiety over the uncertainty. My answer was almost always the same: “If you’d like a quick decision, I can give you one right now.”

The lawyers always backed off. At bottom, they understood that they were asking me to do something that was in their client’s interest but perhaps not in the public’s interest. Pushing the point was unwise since no one was going to criticize me too much for charging someone for committing what was plainly a crime.

I think it’s a very good thing if Karl Rove isn’t being charged, and it’s an admirable exercise of prosecutorial restraint under circumstances in which we know the media is salivating for his head on a platter. If anyone is in a position to complain about how this is affecting the administration, it is the President. I bet, though, that neither he nor his surrogates will complain much about Rove being in limbo. They understand, as Jonah suggests, that they are much better off in their current position than the likely alternative.

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