strike!

Last night a little shiver went through the threads in reaction to the letter sent by Special Counsel Patrick J. Fitzgerald to the Honorable Henry Waxman, Chairman of the House Committee on Oversight and Government Reform. Apparently, there was some confusion stemming from Chairman Waxman's letter of March 8th(PDF) inviting PatFitz to come in for a chat and people thought that meant Fitz was going to testify tomorrow.

No, my little chickadees, that's not how it works.

You see, our big guy is a real honest to gosh professional prosecutor. That means he is hemmed in by all sorts of restrictions on his conduct. Among those restrictions are two that deserve mention here and both form the underpinnings of the letter which Fitzgerald sent in reply to Chairman Waxman (PDF).

The first are the restrictions placed upon US Attorneys when they are asked to give testimony or briefings to Congress. They are required to get their testimony pre-approved, usually by the Counsel to the Executive Director of the Office of US Attorneys (CTD = Counsel to Director). This is a relevant excerpt from the US Attorney's Manual:

1-8.030 Reference of Other Requests to CTD
All other Congressional requests for information or assistance should be immediately referred to CTD either by contacting CTD or politely informing the requestor that you are required to refer all such inquiries to CTD and providing them with information on how to contact CTD by phone, mail or fax.
Examples of requests that should be referred to CTD include but are not limited to requests for non-public documents or information, discussion of or briefings on case status (other than as set out in 1-8.020), attendance at settlement conferences, specific suggestions on case disposition or other treatment, discussion of or requests for information on problems under existing law or suggestions for changes in existing law, requests for interviews, statements or appearances to or before Congressional, members, staff and committees. Follow this standard in both open and closed cases and never provide information on pending investigations, closed investigations that did not become public, that involves Grand Jury, tax or other restricted information, that would reveal the identity of confidential informants, sensitive investigative techniques, deliberative process or the exercise of prosecutorial discretion, or the identity of individuals who may have been investigated but not indicted, without consulting CTD and obtaining authorization from the proper Department authorities. Any Congressional request that involves Privacy Act considerations should also be referred to CTD as special rules apply to Congress in this area.

As you can see, no prior approval, no testimony. Fitzgerald's letter to Waxman (cc'd to former Arlan Specter staffer and former apologist for exempting the Department of Homeland Security from FOIA Richard A. Hertling now Acting Assistant Attorney General for Legislative Affairs, but NOT CTD) makes this clear in the 3rd paragraph:

Based upon consultation with the Department of Justice, I have been advised of its long-standing policy of declining to provide non-public information about pending law enforcement matters, including briefings.

More importantly, Fitzgerald is bound by Rule 6(e) of the Federal Rules of Criminal Procedure which requires that grand jury information remain secret, at least until after indictment. All true, and all in PatFitz's letter.

Several things that Congress needs to take notice of:

-Just as with the Pearl Harbor Day massacred US Attorneys who asked for and received subpoenas to testify before the Judiciary Committee, in the current climate the only way a DOJ employee can talk to Congress without being insubordinate (in which case they can legitimately be fired "for cause") is if Congress compels the testimony and frames the request in such a way that DOJ cannot refuse permission. Congress are going to have to peel this onion layer by layer and force DOJ at each step of the way.  This is hard work. I get that. There will not be one glorious day of testimony tomorrow where all will be revealed and we will suddenly know the answers to all our questions. This is the real world. There will be months of backbreaking labor as day after day the steady drip, drip, drip of one awful revelation after another. Hill staffers are going to have to dig deep and work hard if these Committees actually want to get at the truth.

- Even without the grand jury material there may be a considerable body of evidence that Chairman Waxman can procure for his Committee's review. First of all, as The Fitzgerald response letter points out, there is a vast body of information already publicly available in the form of trial testimony, and exhibits including the wonderland of information included in the unsealed grand jury testimony of Scooter Libby-in fact Pat highlights that in his letter. Parsing that information will be a goldmine I'm sure.

- Remember the way Pat has framed the DOJ policy in his letter "non-public information about pending law enforcement matters" in a paragraph that is talking about Libby's motion for a new trial and planned appeal.  So, I read that to mean any crimes not charged or any suspects not indicted are not involved in "pending law enforcement matters." Remember, Pat said unless something changed, they were all going home to their day jobs.

-This is where things might get good. You may recall that there is some significant information that came to the investigation outside of the presence of the grand jury and not as a direct result of a grand jury subpoena. So, even if the material was later presented to the grand jury, if you knew of its existence from another source you could ask for it. Shorter version- you can't ask for "everything you presented to the grand jury but got from a none grand jury method", but you can ask for "the notes of that interview I know you had with so and so before the grand jury was empanelled." See the difference? It's a little subtle, but very significant.

Let me give you an example, we know (because it was in the newspapers) that PatFitz interviewed the President and Vice-President outside the presence of the grand jury. IIRC there was no GJ subpoena. I assume, that the focus of the interview was not whether or not Libby had committed perjury, but rather the possible "underlying crimes" (OT- somewhere in the vast FDL post reservoir is a post from me explaining just how silly the "no underlying crime" canard really is. We may see it soon) so although "non public" the information would not at this juncture be related to a "law enforcement matter" and therefore would not fall under this DOJ policy-which BTW is ONLY a policy and does not have the effect of a rule of law and does not trump a Congressional subpoena-if Rep. Waxman or anybody else on the Hill was in the mood to show a heavy dose of testosterone.

I don't know how many FBI interviews and other interviews of this sort were conducted outside the presence of the grand jury and not in connection with a grand jury subpoena, but I am having a hard time thinking of a reason why DOJ would be justified in prohibiting PatFitz from briefing Congress about the existence of such material especially since some of it may never even have been presented to the GJ.

There may also be documents that were turned over in advance of the empanelling of the GJ or turned over voluntarily not in connection with a GJ subpoena. Do you see where I am going with this?

But, but you say with quavering voice and trembling lip, what about the Grand Jury testimony???? Fear not firepups, there is succor on that front as well!

-Rule 6(e)(3)(E)(i) Allows for the unsealing of grand jury material for use "preliminary to or in connection with a judicial proceeding"
In order to do that a motion would be made before Judge Walton and there would have to be a showing that Congress had a "particularized need" for the GJ information and that it would be used preliminary to or in connection with a judicial proceeding.

So now you are thinking, but how does that help Henry Waxman? Where is the trial? No, no my darling firepups, you do not appreciate how flexible the term judicial proceeding really is! I love being a lawyer!

There is prior case law, for example Halderman v. Sirica, and a bunch of "in re grand jury..." cases that hold that a Congressional investigation in furtherance of a possible impeachment is indeed a judicial proceeding. I'll give you a good analogy and if I were writing the brief on this motion (would I give my right arm to write that brief or what?) I would make an argument based on this analogy. Elsewhere in Rule 6 it says an Attorney for the government can (without asking anybody's permission) disclose GJ material to another GJ.

When Congress investigates impeachable offenses, it is acting like a grand jury. In fact, in the case of the President, the only body that can return an "indictment" against him, called a Bill of Impeachment, is the House of Representatives. So, a Congressional investigation which could lead to either impeachment or referral of cases for prosecution by DOJ or by a Special Prosecutor, is like a big non secret GJ. Rule 6 recognizes this, but since it is an unusual deviation from the normal GJ secrecy rules, quite appropriately, requires that an additional showing of particularized need be made.

-So, Congressman Waxman and his Committee or any other Committee that wishes to hold hearings into whether any of the underlying crimes may have been committed need only frame both their investigations and their requests for information with the strictures of Rule 6 in mind. Just make a record demonstrating why you have a particularized need and go place your proof in front of Judge Walton. Do a good job of it, and I believe the process, though slow, will be effective. And everybody will have the added satisfaction of knowing that we did it all without subverting the rule of law.