Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

I know everyone is atwitter at the moment over today's events and poring over the just-published pieces in the Times (an outfit still in denial about its institutional guilt) and the Post about the Rove-Fitzgerald developments. But I would like to take a moment to remind everyone of the severe health risks associated with schadenfreude toxicity (ST), in both its chronic and acute forms. It doesn't take a lifetime of exposure to guilty pleasure at the suffering of others. In rare cases, even a few hours of euphoria watching poetic justice being meted out to evil-doers can prove fatal. Today walking down Sixth Avenue, in fact, I saw several apparently healthy and able-bodied Democrats just go poof! into thin air. Even a few Republicans who just believed in good government were taken ill. It can happen that quick.

A longtime reader gently, or not so gently, puts me in my place ...

Don't be a lawyer! This is simple. The manual is not law, it is a manual. Prosecutors need to avoid being accused of abuse of grand jury process. Rove has testified so often to this grand jury they must be bored with him. There's no chance of abuse. So why is he testifying again? Because the case has gotten refined. Now it is about conspiracy. It is about the cover up not the crime. I assume. So he's come in to explain what he knew, when he knew it, how he didn't really cover up. Grand jurors will ask him q's. So will prosecutor. Record will be made. Then they can indict him if they want. Simple.

'nuff said.

More on the topic of the day: 'target letters'.

Like many other bloggers and reporters, I've spent a good bit of time this afternoon reading over the section of the US Attorney's Manual that deals with grand juries.

I had read over 9-11.153 earlier today, in addition to a bunch of other sections. But I don't think I caught its significance on the first run through.

A source, who is an attorney with relevant knowledge, tells me that there are many cases where a target letter simply isn't required. And this person points to 9-11.153, which does seem to say pretty clearly that Rove's is one of those cases. I quote (emphasis added) ...

9-11.153 Notification of Targets

When a target is not called to testify pursuant to USAM 9-11.150, and does not request to testify on his or her own motion (see USAM 9-11.152), the prosecutor, in appropriate cases, is encouraged to notify such person a reasonable time before seeking an indictment in order to afford him or her an opportunity to testify before the grand jury, subject to the conditions set forth in USAM 9-11.152. Notification would not be appropriate in routine clear cases or when such action might jeopardize the investigation or prosecution because of the likelihood of flight, destruction or fabrication of evidence, endangerment of other witnesses, undue delay or otherwise would be inconsistent with the ends of justice.

Add here the standard preface that I'm not a lawyer. And many errors are possible when a layman cherry-picks portions of a legal code or manual without reading the thing in its entirety. But this seems to be the portion of the manual which outlines cases where a 'target letter' is called for. And if I'm not mistaken, Rove has already testified three times.

So are we even sure Fitzgerald is under any obligation at all to send one to Karl?

Roll Call (sub. req.): On October 18th, the Senate Judiciary Committee wil hold hearings on Deputy Attorney General nominee Timothy Flanigan's ties to Jack Abramoff. Flanigan will attend and Roll Call reports that Tyco has waived the attorney-client privilege Flanigan invoked to avoid answering Abramoff questions in his September 29th appearance.

A bit more parsing of Ronald "GB" Luskin's remarks on whether Karl Rove is a 'target' of the Fitzgerald investigation -- under the known bamboozler's standard of 'strict scrutiny' (KB-triple-S) noted below.

First off, is it a legal requirement that you get a 'target letter' before you get indicted? Many press outlets are claiming that it is. For instance, CNN says, "Rove would first have to receive what is known as a target letter if he is about to be indicted."

As near as I can tell, though, that is simply false. There's no legal requirement that you get a letter before you get indicted. Standard procedure, yes. A requirement, no.

As for parsing of Luskin's remarks and the significance of a letter (see below), several sources confirm that for a known bamboozler like Luskin, his statements are basically meaningless. Notification that you're a target can be oral. And the letter probably wouldn't be sent to Rove himself but rather to Luskin. So even if Fitzgerald sent a letter Karl Rove wouldn't have received it. Suffice it say that Luskin's statement gives him plenty of wiggle room.

As for what this all means, basically what we have here is Rove's attempt to go in and make his own case directly to the grand jury, going over Fitzgerald's head, as it were. My sources tell me that such a strategy is the equivalent of a Hail Mary pass, the sort of choice that only makes sense as one source told me, in situations "where the indictment is as bad as the conviction" -- something that certainly applies to Rove.

The crafty ways of our man, Robert "Gold Bars" Luskin, lawyer for tadpole-on-deck Karl Rove.

As we noted a short time ago, the AP is now reporting that Karl Rove has availed himself of a last-minute and seemingly last ditch effort to avoid indictment.

Yesterday Luskin cut some blood loose in the water when he refused to deny that Rove had received a 'target letter'. In the past, Luskin had quite volubly insisted that Patrick Fitzgerald had assured him that Rove was not a target. But no more.

Today he told the AP: "I can say categorically that Karl has not received a target letter from the special counsel. The special counsel has confirmed that he has not made any charging decisions in respect to Karl."

Here Luskin appears to be availing himself of the transitive property of hyper-parsification. To any reasonable person Luskin's statement should settle the matter of whether Rove is a target. But Luskin's own record of slithery parsification forces us to assume that these words are carefully chosen to conceal rather than elucidate. If you come from the con interp world, think of this as the journalists' version of 'strict scrutiny' which is called for in the case of a bamboozler like Luskin.

With that in mind, Luskin's second sentence means nothing. Being a target may mean you're likely to get indicted. But it doesn't mean that the prosecutor has decided that in fact you will be indicted. So that's just a showy statement that means nothing. Then there's the matter of the letter. Karl hasn't gotten one. Luskin earlier approach was to say that Fitzgerald had assured him that Rove was 'not a target'. Now we're hung up on the letter.

Can you be notified that you're a target in any way beside a letter? I really don't know. But it's hard to see where a prosecutor wouldn't cross every t and dot every i in a case of such import.

Karl plays for time. AP: "Federal prosecutors have accepted an offer from presidential adviser Karl Rove to give 11th hour testimony in the case of a CIA officer's leaked identity but have warned they cannot guarantee he won't be indicted, according to people directly familiar with the investigation. The persons, who spoke only on condition of anonymity because of grand jury secrecy, said Special Prosecutor Patrick Fitzgerald has not made any decision yet on whether to file criminal charges against the longtime confidant of President Bush or others."

More Grade A Freeh Bashing: Advance word on Arch-Failure Louis Freeh's new book apparently has Freeh complaining that it was hard for him to get anything done because Bill Clinton, the president and his nominal boss, was such a source of scandal and bad acts.

Drudge quotes him saying: "The problem was with Bill Clinton -- the scandals and the rumored scandals, the incubating ones and the dying ones never ended. Whatever moral compass the president was consulting was leading him in the wrong direction. His closets were full of skeletons just waiting to burst out."

Aren't there some logical problems with this excuse making?

How is it that Bill Clinton was such a bad actor that Freeh couldn't get anything else done because he had to spend so much investigating him and yet Freeh never caught him doing anything? Which of Clinton's associates did Freeh indict?

Think about it. Either Freeh is just as big a buck-passer and liar as we think or he is a self-confessed incompetent. It's genuinely funny.

Even if you want to consider Bill Clinton's affair with Monica Lewinsky as a legitimate legal bad act, Freeh didn't have anything to do with catching him on that one. Give the credit where it's due: that was the work of Republican political operatives.

Can't Freeh keep himself busy as chief bill collector for the credit card companies?

Reuters: "Top officials who managed U.S. reconstruction projects in Iraq have been hired by some of the same big companies that received those contracts and which are now involved in a rush of deals to rebuild after Hurricane Katrina."

So Arch-Failure Louis Freeh is coming out with a book, apparently aimed largely at attacking Bill Clinton. I assume we're going to get a lot of stories about how Freeh was perhaps the worst manager the FBI ever had? Didn't believe in using computers to aid crime fighting? Was a complete zero in fighting terrorism?

Who cares about Bill Clinton. Let Freeh attack him all he wants. Truly, who cares? But Freeh is a walking glass house. Please everyone collect your rocks.