Update [2005-8-12 20:5:48 by kant]:I changed the title, but went with my own notion of what this is about rather than some of the suggestions... hope you like.
Beyond the spin and advocacy surrounding the Plame-leak case, there will be a judgement day, and it won't be Fitzgerald who makes the judgement. It will be the Grand Jury. Below the fold, I explore the writings of several reporters directly involved in the Plame-leak case and explore how they may be trying to influence the Grand Jury. I do all of this by studying the writings against the rules and guidelines of Federal Grand Juries as laid out in the Handbook for Federal Grand Jurors.
OK, let's start with some basics. (Unless otherwise noted the bockquotes are from the
Handbook for Federal Grand Jurors, which should be presented to all grand jurors when they are empannelled and which was likely presented to each of Fitzgerald's grandjurors.)
...the federal grand jury's function is to determine whether a person shall be tried for a serious federal crime alleged to have been committed within the district where it sits. Matters may be brought to its attention in three ways: (1) by the United States Attorney or an Assistant United States Attorney; (2) by the court that impaneled it; and (3) from the personal knowledge of a member of the grand jury or from matters properly brought to a member's personal attention.
So if a grand juror reads something in the newspaper or on a website about a law that might apply to the actions of targets or subjects of the investigation, they can bring it before the grand jury. Moreover, unlike trial jurors, grand jurors are able to conduct their own investigations.
The major portion of the grand jury's work is concerned with evidence brought to its attention by an attorney for the government. The grand jury may consider additional matters otherwise brought to its attention, but should consult with the United States Attorney or the court before undertaking a formal investigation of such matters. This is necessary because the grand jury has no investigative staff, and legal assistance will be necessary in the event an indictment is voted.
The Plame-leak grand jury is in Washington, D.C. and its hometown paper is of course the Washington Post. Moreover, one of the key witnesses in this case is Walter Pincus, who happens to write for the grand juror's hometown paper, The Washington Post. As pointed out in this blog yesterday, Pincus reminded all of us that Rove's and Libby's story matched the State Department Memo indicating that Plame's identity was classified information. Not only must Pincus have know his implication of where Rove and Libby got their information, he also knew that his audience included the grand jury. In someway, the audience and Pincus have a bond formed by an investigative mission to seek out the truth and by a duty to keep at least some of that information confidential. There is, I believe a strange bond and symbiosis between a fine reporter like Pincus - who professionally obligated not to pass judgement and feels bound to protect his sources but who is committed to uncovering the truth - and a grand jury whose job it is to pass judgement and whose ability to collect the information necessary to judging justly is limited by procedure and perjury. Pincus and the Grand Jury have been playing this game of clue together for a long time... and I'm sure they respect and keep an eye on each other.
Similarly, take a look at Matt Cooper's statement about the grand jury from his post-testimony article about his role in the Plame-leak case...
Grand juries are in the business of handing out indictments, and their docility is infamous. A grand jury, the old maxim goes, will indict a ham sandwich if a prosecutor asks it of them. But I didn't get that sense from this group of grand jurors. They somewhat reflected the demographics of the District of Columbia. The majority were African American and were disproportionately women. Most sat in black vinyl chairs with little desks in rows that were slightly elevated, as if it were a shabby classroom at a rundown college. A kindly African-American forewoman swore me in, and when I had to leave the room to consult with my attorneys, I asked her permission to be excused, not the prosecutor's, as is the custom. These grand jurors did not seem the types to passively indict a ham sandwich. I would say one-third of my 2 1/2 hours of testimony was spent answering their questions, not the prosecutor's, although he posed them on their behalf.
Matt Cooper is sucking up big-time to the Grand Jury here... He encourages their involvement in the case and the intensity of their investigative passion. Again, journalists and grand jurors are kindred spirits. And in this case, they have been pursuing the same truth for nearly theree years. Cooper - who knows the reach of Time magazine into the lives of ordinary citizents - then proceeds to lay out the facts as he relayed to the grand jury, emphazing tidbits like "Rove said the information was about to be declassified." and "Rove said 'I've already said too much.'" But lest the grand jury get jealous, he also reminds us and the grand jury of the notes and testimony that he will not reveal to those outside the "club" of this investigation.
Finally we have Novakula. We seem to know that he was questioned by investigators, but was he questioned by the grand jury? If not there may be an explanation in the handbook...
Normally, neither the person under investigation (sometimes referred to as the "accused," although this does not imply he or she is guilty of any crime) nor any witness on the accused's behalf will testify before the grand jury.
If Novak has not testified, that would indicate that he his a target of the investigation. His recent column about the Plame-leak was his first on the subject, since the grand jury was empanelled. Is there any doubt that he has this audience in mind as he writes...
Though frustrated, I have followed the advice of my attorneys and written almost nothing about the CIA leak over two years because of a criminal investigation by a federal special prosecutor. The lawyers also urged me not to write this. But the allegation against me is so patently incorrect and so abuses my integrity as a journalist that I feel constrained to reply.
He goes on to try to make a number of patently misleading, irelevant and false statements that he seems to hope will sow doubts in the minds of grand jurors, without the consequences of saying such things under oath and without being subject to follow up questions.
Beyond the reporters angle, there is, of course, the question of who has become a target of this grand jury's investigation, either at the initiation of Fitzgerald, or at the initiation of one or more grand jurors. Since Rove testified, it seems that, initially, he was not a target of the investigation, but once Fitzgerald and the grand jury found out that he was Cooper's original source and initially hid that fact from investigators, that may well have changed.
Since last year, it has become clear that Libby has been a foucs of the investigation. There have been questions as to whether Ari Fleischer is a target, but given the rules about taking testimony from a target, that seems unlikely unless Ari lied. As it has been reported by David Corn...
I was out the other night and--this is what happens occasionally in Washington--I met a person who used to work at the Bush White House. It was someone I knew years ago, and I did not realize this individual had gone on to be a Bushie. We got to talking, and s/he mentioned to me that s/he had been called before the grand jury...
"Scooter's in big trouble," s/he said. "But Karl is too smart for Fitzgerald." S/he was, of course, referring to Scooty Libby, chief of staff for Dick Cheney, and Karl Rove, Bush's mastermind. S/he, thus, reinforced what has been the lead gossip on the case since early in the year: Libby is the number-one target. And s/he added that judging from the questions posed to him/her it seemed as if Fitzgerald was quite interested in Rove but didn't have much on him.
Anything else to report? I asked. "Ari Fleischer," s/he said. "He testified before the grand jury for six hours. Afterward someone asked me if I thought he could get through all that without saying something untrue. Ari talk for six hours without saying something untrue? That's not possible."
So, if Matt Cooper is to be believed we have a group of intelligent and engaged individuals -predominantly African-American women - who live in the only city in America without congressional representation, and who also live in the city that was attacked on 9/11. Here is their duty...
It is the responsibility of the grand jury to weigh the evidence presented to it in order to determine whether this evidence, usually without any explanation being offered by the accused, persuades it that there is probable cause to believe that a crime has been committed and that the accused was the person who committed it. Remember that the grand jury is not responsible for determining whether the accused is guilty beyond a reasonable doubt, but only whether there is sufficient evidence of probable cause to justify bringing the accused to trial. Only the evidence presented to the grand jury in the grand jury room may be considered in determining whether to vote an indictment..
IT SAYS THAT RIGHT IN THE HANDBOOK! So once they have evaluated all of the evidence and are prepared to determine whether PROBABLE CAUSE exists (and NOT necessarily guilt beyond a reasonable doubt). What do they do?
When the grand jury has received all the evidence on a given charge, all persons other than the members of the grand jury must leave the room so that the grand jury may begin its deliberations. The presence of any other person in the grand jury room while the grand jury deliberates or votes may nullify an indictment returned on the accusation. After all persons other than the grand jury members have left the room, the foreperson will ask the grand jury members to discuss and vote upon the question of whether the evidence persuades the grand jury that a crime has probably been committed by the person accused and that an indictment should be returned. Every grand juror has the right to express his or her view of the matter under consideration, and grand jurors should listen to the comments of all their fellow grand jurors before making up their mind. Only after each grand juror has been given the opportunity to be heard will the vote be taken. It should be remembered that at least 16 jurors must be present and 12 members must vote in favor of the indictment before it may be returned.
The question is now how high will it go?