Jason Leopold and Marc Ash come out swinging

Jason Leopold and Marc Ash at Truthout come out swinging:

Indictment Still Sealed, Fitzgerald Still Busy
By Jason Leopold and Marc Ash
t r u t h o u t | Report

Monday 21 August 2006

An indictment first reported by Truthout said to be connected to Special Counsel Patrick Fitzgerald's Plame investigation remains sealed, and Fitzgerald continues to work on the leak case.

The indictment, 06 cr 128, was returned by the grand jury hearing evidence in the CIA leak case between May 10 and May 17 - right around the time that Truthout reported, based on sources close to the investigation, that Karl Rove had been indicted on charges of perjury and lying to investigators.

However, that indictment remains under seal more than three months after it was filed - an unusually lengthy period of time, according to experts in the field of federal law. The indictment could be dismissed down the road, meaning the public may never get the opportunity to learn the identity of the defendant or the substance of the criminal case.

These experts said the length of time the indictment has been under seal suggests that the defendant named in the complaint is cooperating with an ongoing investigation and may have accepted a plea agreement.
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During numerous interviews with Truthout, sources with direct knowledge of the behind-the-scenes legal wrangling in the CIA leak case said the indictment specifically relates to the 2½-year-old leak probe. Other sources who have also been involved in the investigation confirmed this information.

The sources said that it was Karl Rove who led Fitzgerald's office to additional documentary evidence that was not turned over to the Special Prosecutor's staff in the early days of the investigation.

With Rove cooperating, the probe has once again shifted, and the focus now is on another high-level official in the executive branch: Vice President Dick Cheney.

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In the case of Vice President Cheney there are, according to the sources familiar with the case, "Constitutional issues that must be researched." Sources familiar with the ongoing probe said that Constitutional experts are deliberating with the Plame investigators, and that the vice president views his status as shielded, to some extent, by executive privilege.

Fitzgerald's investigation into the Plame matter is still active and ongoing, sources said, and will be for some time.
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Attempting to gain a clearer picture of the events leading up to the June 12 letter sent by Patrick Fitzgerald to Luskin, our two-month investigation led to several interesting revelations that were communicated to us by well-placed sources. The letter is constructed in a manner consistent with what would be expected when a federal prosecutor writes a letter to a subject's attorney. The letter, we are told, spelled out what was expected of Rove, and made clear the ramifications should he fail to honor the terms of his verbal cooperation agreement with Fitzgerald. According to experts in federal criminal law, that approach is fairly standard given the circumstances.

It was Luskin, sources said, who seized on the single phrase from Fitzgerald's letter that gave the appearance of exoneration trumpeted by the US commercial press. In fact, the letter, taken as a whole, paints no such picture. According to those familiar with the letter sent to Luskin, it details the obligations of a subject, Karl Rove, who must choose between cooperation and further prosecution. If the document were made public it would indicate those obligations, the sources said.

Michael Clark, a former federal prosecutor now in private practice in Houston, Texas, said that he has never heard of a sealed indictment referred to as "Sealed vs. Sealed" despite the fact that more than two dozen cases are filed under that heading in US District Court.

"Two dozen out of hundreds of cases that are filed under 'US vs. [blank]' are still unusual," Clark said. "If this sealed indictment involves a government official, you wouldn't expect that to happen unless you're talking about a high level official and there has been a fair amount of behind the scenes negotiating going on. To have a federal indictment sealed for three months is very unusual."

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Clark added that if the indictment continues to remain under seal in the weeks ahead it begins to raise important questions about the transparency of the judicial process.

"If it's still under seal at the end of next month it will start pushing the envelope a bit," he said. "Two months is starting to get unusual. But three months is very unusual."

let the games begin. again.