The Corner

Re: The Continuing Investigation

While I hate to disagree with my friend Mark Levin, I do not understand the criticism he and others level here at my friend Pat Fitzgerald. (I note that Mark shows prudent restraint here given that we don’t know all the facts yet.)

Based on public reports, it appears Karl Rove was permitted to come back to the grand jury three times after his initial testimony – at least once (and perhaps more than once) at Rove’s own request. This almost certainly means Rove gave early testimony that was problematic, yet, rather than being indicted, was permitted by Fitzgerald to return to try to purge whatever the problems were.

A prosecutor is not required to permit the subject of an investigation, multiple times, to try to fix whatever needed fixing. If that is what happened, there is almost certainly enough evidence to seek Rove’s indictment. I am not saying that SHOULD be done. I am merely pointing out that it COULD have been done.

Instead of doing that, it appears Fitzgerald is staying his hand but not prepared to say Rove is in the clear. That is highly reasonable. A different prosecutor (like me, for example) would probably not have exhibited this kind of patience. (Again, we don’t know all the relevant facts, so it’s impossible to say for sure.)

With due respect to Jonah, whose point about ripping the band-aid right off has merit, a felony indictment of the President’s top adviser would be a major big deal – especially if the indictment were for perjury under circumstances where the main trope of the opposition is the (irresponsible) claim that we are in Iraq because the President lied to the country about Saddam’s weapons capabilities.

Furthermore, if Fitzgerald indicts anyone in this case, that NECESSARILY means the investigation is continuing. It is black-letter law that a government investigation may and should continue through the time of trial. It is a commonplace to keep the grand jury available to consider superseding the indictment, and to keep digging for evidence.

Consequently, it would be standard procedure to tell other, unindicted subjects of the investigation that though they have not been charged they are not in the clear. Indeed, as an ethical matter, Fitzgerald would owe it to Rove to tell him that. As the investigation against any charged person continues, it is essential for the prosecutor to place Rove (and any other uncharged subject of the investigation) on notice that anything he says or does could still be used against him. That is not beleaguering someone. It is being fair to him and honoring one’s own legal and moral obligations. It also gives Rove the advantage of being able credibly to tell the media that it would be unfair for them to expect him to comment about the case at this point.

Rove could have been indicted. Instead, he evidently wakes up today with a chance to avoid that outcome. Given the unpleasant possibilities, I have to think both Rove and the President should be pretty pleased with that. And the alternative of demanding a decision one way or the other could just as easily lead to pressuring the prosecutor to file questionable charges as to getting the prosecutor to give someone a clean bill of health (which, for the reasons noted above, Fitzgerald shouldn’t do anyway).

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