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clarice

Revised Intro and Draft

Draft III

(I will be gone for several days beginning on Sat. Those who wish to participate please move it. In the meantime, I've redone the first bits and post this as Draft III)


.In his April 27 , 2006 opinion denying Libby's Motion to Dismiss, Judge Walton made clear that the special counsel, though not appointed under the Department's normal regulations regarding special counsl, is nevertheless bound to the sum and substance of the Depaartment's rules and regulations regarding the prosecution of criminal matters.
Here are the relevant portions of the opinion on that score:
"In fact, because the Special Counsel must comply with Department of Justice policies, many of which provide direction for how to proceed in prosecuting cases, the AG, at least in an abstract sense, continues to direct and supervise the investigation and prosecution of this matter."
"But even if violations[of Department policies] as alleged occurred, that does not mean they were authorized by the authority given to the Special Counsel(p. 25, fn 12) ."
"It would be illogical to ignore well-established Department of Justice policies without any clear authorization to otherwise do so.(p. 24) "

"In fact, because the Special Counsel must comply with Department of Justice policies, many of which provide direction for how to proceed in prosecuting cases, the Attorney General, at least in an abstract sense, continues to direct and supervise the investigation and prosecution of this matter(fn. 13)."


It would thus appear that regardless of the singular nature of this counsel's appointment he is bound by the rules of conduct set forth by the Department, rules it is the task of your office to enforce.
In any event, by appointing as special counsel a man who simultaneously serves as a U.S. attorney the Attorney General has not stripped your office of jurisdiction to consider whether his conduct in this matter violates Department rules and regulations governing ethical professional standards.

2.. If we are wrong and the OPR feels that under the particular circumstances of the appointment it has no jurisdiction, we'd appreciate a public statement to that affect for we believe it is relevant to the trial court's ruling and to any which may be made subsequently by a reviewing court.
3. We believe that to date Mr. Fitzgerald has violated the rules and regulations and his ethical obligations as an attorney representing the government in the following respects:
(a) the false statements in the press release announcing the Libby indictement which misstated the facts and represented an effort to smear Mr. Libby and poison public opinion against him [detail misrepresentations0;
(b) the misleading representations to the Miller Court, including the footnote upon which Tatel relied;[detail]
(c) the setting up of a perjury trap by reading out of all sense his mission (to protect a whistleblower, rather than to find a leaker).I'd quote his good leak/bad leak statement. His mission was to find the leaker and he had found that person before he compelled the testimony of Ms.Miller.His statement of the law in the footnote to the Miller court was misleading and wrong. He knew at the time he went to the Ct of Appeals that he has no grounds to believe there had been a violation of IIPA or the Espionage Act. Both statutes were inapplicable.
(d) that he has conflated normal testimonial variances into perjury,conspiracy and false statements acts
(e) he is engaged in selective prosecution, charging Libby with false statements and conspiracy and not charging the leaker who, it appears, was really "the first to leak", someone who it seems disclosed Plame's identity to two reporters both of whom told others and one of whom, in fact, published that information leading to this investigation;
(f) He has improperly criminalized a political dispute.[Let's quote lots of his stuff..including that bit about good leaks/bad leaks to show that he is not impartial, but in deciding what is a good leak selects the anti-Administration statements of a serial liar (cite SSCI report) and a bad leak anyone who quite understandably sought to set the record straight. Wilson was a partisan with deep ties to the President's opponent, he publicized his false charges widely and they were charges of significant moment and import.The Administration had every right and reason to respond and Fitz' singular interpretation of what he is doing is proof that he has politicized this matter.
(g) He has gratuitously used the proceedings to smear the Administration for reasons unrelated to the advancement of the case:
(i) the NIE claim in his pleadings which he waited a week to correct.
(ii) the Cheney annotations assertion which he knew to be false and certainly not probative of Libby's state of mind
Above and beyond this, what he do know on the public record is that the investigation he oversaw was a one-sided one, designed to target Libby and Rove and not to get at the truth. PUK on Fitz' idee fix and notation about never apparently having asked Wilson if he himself had ever told anyone about his wife's employmentThere is substantial public record evidence, for example,that Plame's identity was well known to many reporters (including, for example, David Corn of the Nation who first floated the "revenge outing" and Plame was "covert" fables) and the only reporters who were questioned were those who had spoken to Libby and Rove.
moreover, in questioning selective reporters he limited his questioning of them to discussions with Libby and Rove, leaving out that they had other sources, thus skewing and distorting the investigation to a predictable end. One example of this is the questioning of Mr. Cooper who does not seem to be asked if he had knowledge of Plame outside any discussion with these two. As his wife was a prominent Clinton appointee that seems a reasonable likelihood. As his co-author ,Mr. Calabresi, spoke to Wilson before and after Mr. Cooper's discussion with Mr. Libby that seems a virtual certainty.That Cooper's call, in fact, was pretextual seems a certainty for his written account is at complete odds with his testimony.
Indeed, the agreement that the prosecutor made with reporters to only reveal certain sources was certain to skew the record. Here is but one example:
Judith Miller statement on agreement with Special Counsel to limit testimony to Libby.
Published: September 30, 2005
Following is the transcript of a statement by Judith Miller on Friday afternoon, as recorded by The New York Times
"Once I got a personal, voluntary waiver my lawyer, Mr. Bennett, approached the special counsel to see if my grand jury testimony could be limited to the communications with the source from whom I had received that personal and voluntary waiver. The special counsel agreed to this and that was very important to me."
http://www.nytimes.com/2005/09/30/politics/30transcript-miller.html?ex=1148270400&en=6f361ab70706e9ad&ei=5070
Walter Pincus also received information from someone revealing Plame’s identity and position and was not required to testify:
The Washington Post reported last year:
[quote] "I understand that my source has already spoken to the special prosecutor about our conversation on July 12 [2003], and that the special prosecutor has dropped his demand that I reveal my source. Even so, I will not testify about his or her identity," Pincus said in a prepared statement.
"The source has not discharged us from the confidentiality pledge," said The Post's executive editor, Leonard Downie Jr. [/quote]
Subsequently, Bob Woodward says , he too, conveyed this information to Pincus which he’d received from his source.News reports say that Pincus has no recollection of that discussion. But because the Prosecution never questioned Pincus we do not have on the record confirmation of that.In any event in that instance the Prosecutor seems untroubled by the memory lapse whereas in any variance in memory between Mr. Libby and others Mr. Fitzgerald claims evidence of wrongdoing, not normal human behavior. In any event, perhaps if he had been questioned about other sources, the Prosecution may have learned earlier about Mr. Woodward’s source.
In sum and substance you have a prosecutor who is misusing his office in a way which violated ethical standards and the department's rules and regulations which codify those standards of conduct


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