Friday, October 21, 2005


That's right, I'm going out on a line and predicting that no indictments will be coming out of the Fitzgerald investigation. Here's my thinking...

** Prosecutors tend to act as soon as they have what they need. With one or two exceptions, prosecutors issue indictments as soon as they have enough to do so. They don't wait for the sake of waiting and they don't wait and wait and wait to indict later what they can indict now. They're Type A personalities who don't do well sitting on their hands.

There are good reasons to issue indictments as soon as can be done. It motivates the office (prosecutors are like everybody else; they want to feel they're doing something, and sitting and sitting just saps the energy out of any office). It shows the public that you're not wasting money and time. And indictments can be very effective tools in putting the fear of God into reluctant witnesses, especially those needed to help connect the dots.

** Fitzgerald is not required to wait. He doesn't have to wait until the end of the grand jury term before he issues an indictment (Ken Starr, whose investigation went on for a rather long time, issued indictments almost from the time he opened up shop). Nor does Fitzgerald have to issue all of his indictments at the same time.

** Waiting to charge Rove and Libby leaves them in sensitive positions. It's common knowledge that an indictment will cost these guys their jobs. While Fitzgerald is not partisan, I don't see him sitting on an indictment while these guys continue to help run the country. And, if Fitzgerald was heading towards charging them with conspiracy, I think he would want to distance them from others who may have been involved.

** There were no open issues that needed to be resolved before he could act. The White House has reportedly been very cooperative with Fitzgerald's office. There have been no delaying tactics such as those employed by Clinton's Administration, no claims of executive privilege, no battles in the courts over access to staff, no debates over whether Fitzgerald had authority to conduct his investigation.

** A cornerstone of any prosecution would be the testimony from reporters and Fitzgerald doesn't know to the extent that he can count on getting any given reporter to testify in open court. He also knows that the public doesn't think very highly of the media and basing his case of their testimony may not play very well with a jury.

** Thus, Fitzgerald waiting is an indication that he didn't have what he needed. He isn't still mulling things over... he's been on the case for the better part of two years, he should have had his act together a long time ago. He's done all his research on the applicable laws. He knows whether or not Plame was covered under the Intelligence Identities Act. With the exception of Miller (see below) and whatever it was Rove testified to last week, Fitzgerald has had, and for a long time, everything from everybody that he has been interested in getting. If he didn't have something he needed, it's likely because it doesn't exist.

** The past number of months have been all about Miller... and Libby. Other than Rove coming back for a fourth time, the only thing that has been (reportedly) going on in the investigation over the past several months is Fitzgerald's trying to get Judith Miller to testify. And reportedly, Miller's testimony was to be limited to her conversations with Libby.

This suggests two things:

(1) Fitzgerald had completed his investigation with regards to everybody but Libby and had concluded that he had no case against any of them. If he had enough to charge John Hannah or Karl Rove, he would have done so. I can think of no reason why Fitzgerald would wait to idict Rove until after such time as he had talked to Miller about Libby... especially since Fitzgerald had no idea when, or even if, Miller would eventually testify.

(2) Miller's testimony would absolve Libby, not incriminate him. I base this on the simple fact that if Libby thought Miller would incriminate him, then he would never have given her the waiver. Forget about the Aspen letter being some kind of witness coaching. He would have quit working for Cheney before he would have agreed to allow Miller to testify if he thought that testimony could get him a jail sentence. And Libby wasn't in a position where he couldn't afford to quit.

So.... that's my call. Note I didn't base anything on any deep understanding of the relevant laws, nor on any inside information from Fitzgerald's office, but rather on good old fashioned common sense. We'll see if I'm proven right... or not.