Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

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Fitzgerald tells members of Congress he believes "there is no legal authority to issue a public report in the Special Counsel matter", also confirms that the Plame grand jury is not a 'special grand jury'.

Now, about that FBI investigation into the origins of the Niger forgeries, discussed by Doug Jehl in his piece in today's Times.

(Apologies to longtime readers of the site who will be familiar with much of what follows.)

Jehl reports that a "counterespionage official said Wednesday that the inquiry into the documents ... had yielded some intriguing but unproved theories."

That's not a lot for an investigation that began two and a half years ago.

And, remember, the existence of the supposed FBI investigation was the basis on which Sen. Roberts' Senate intel committee agreed not to examine anything about the origins of the documents or how they came into American hands.

So how serious has that investigation been? And what is known by the two senators -- Roberts and Rockefeller -- who've been regularly briefed on it?

Consider this: As is now all over the papers in the US and Italy, the 'security consultant' who tried to peddle the forgeries to a reporter for the Italian magazine Panorama in October 2002 is a man named Rocco Martino. FBI sources continue to tell reporters that they have not been able to question Martino because they have not been able to secure the permission of the Italian government to speak with him.

Given the gravity of the case, it seems difficult to believe that the United States would tolerate Italy's non-cooperation. But what about when Martino came to the United States?

Martino travelled to the United States twice last year. He travelled under his own name and stayed in New York City where he provided interviews to me and two other journalists. By the time Martino made his second visit to the United States his name and his central role in the case had been reported in several Italian and two major British papers. Yet no effort was made to contact him or question him when he was in the US for several days.

Surely US law enforcement wouldn't need the permission of the Italian government to speak to Martino when he was on US soil.

How serious can an investigation be when there is no attempt to speak to the central person in the case?

Another indication.

Elisabetta Burba is the Italian journalist, who works for the Berlusconi-owned magazine Panorama, to whom Martino tried to sell the forgeries. She was interviewed by the FBI not long after Sen. Roberts agreed to co-sign Sen. Rockefeller's request for an FBI investigation in the spring of 2003. But she describes the interviews and follow-ups as cursory at best.

There are various other reasons to doubt that the Justice Department has made a serious effort to solve the mystery of the Niger forgeries. But the apparent lack of interest in even speaking to the man at the center of the scheme is a decent place to start.

As Chairman of the senate intel committee, Sen. Roberts is in a position to receive detailed briefings on the status of the investigation. And his spokespersons say he's received them. So what does he know? More reporting needed.

Today's LA Times story on the Niger forgeries contains the following passage ...

The murky saga involves one Rocco Martino, an occasional Italian spy and businessman who initially peddled the documents. He has told reporters over the last few years that he obtained the papers through a contact at the Niger Embassy in Rome (which, incidentally, was burglarized in 2001) with the help of another officer from Italian military intelligence, and that he sold them to a French intelligence agency with which he occasionally traded.

Through his lawyer, Martino declined an interview this week. "The less I say, the better," the lawyer, Giuseppe Placidi, quoted Martino as saying. The lawyer would only say that Martino, who was questioned by Italian prosecutors, did not realize the material was fake and did not obtain it from military intelligence.

Martino is a problematic figure. La Repubblica described him as a "failed carabiniere [policeman] and dishonest spy" and a "double-dealer" who plays many sides of every fence and was fired from his job in the Italian secret service.

There's actually a bit more to it than this. There are year-old and as yet unbroadcast taped interviews with Martino in which he describes the arrangement with SISMI officer Antonio Nucera and a female SISMI asset who works at the Niger embassy in Rome. In addition, there are interviews with another party to scheme which confirm Nucera's role. Thus, while Martino himself is what a lit prof might call an untrustworthy narrator, other evidence confirms his claims about SISMI involvement.

It's funny how things become news a year or more after they're first reported.

About that long ago, this site first reported that while the Niger forgeries themselves first appeared in Rome in October 2002 that the foreign intelligence service reports in late 2001 and early 2002 were themselves text transcriptions of those same forged documents.

Today the Times reports the following as news ...

The United States government did not receive the papers until October 2002, eight months after the Central Intelligence Agency sent Joseph C. Wilson IV, a retired ambassador, to Niger on the fact-finding mission, according to a review completed last year by the Senate intelligence committee. The C.I.A. decided in March 2003 that the papers were forgeries.

But a little-noticed passage in another government report said the C.I.A. had determined that foreign intelligence passed to the agency in the months before Mr. Wilson's trip also contained information that was "based on the forged documents and was thus itself unreliable."

That early foreign reporting, never endorsed by American intelligence analysts, prompted questions from the office of Vice President Dick Cheney, which in turn led to Mr. Wilson's trip, a chain of events spelled out in the reviews of prewar intelligence issued this year and last year.

The LA Times also has a story to do about the now-just-breaking-into-the-open story of the Italian government's role in the Niger forgeries hoax.

More soon.

Tom DeLay: "We are witnessing the criminalization of conservative politics."

Seems to me that sentence can be read more than one way.

Maybe Tom is finally seeing the light.

The Times got there first with a report that Karl Rove will supposedly not be indicted tomorrow. But the AP and the Wall Street Journal seem to have more details.

Says AP ...

A person outside the legal profession familiar with recent developments in the case said Thursday night that Rove's team does not believe he is out of legal jeopardy yet but likely would be spared bad news Friday when the White House fears the first indictments will be issued.

Fitzgerald signaled Thursday he might keep Rove under continuing investigation, sparing him from immediate charges, the person said, speaking only on condition of anonymity because of the secrecy of the grand jury probe.

And from the Journal (sub.req.) ...

Karl Rove, President Bush's chief political adviser and deputy White House chief of staff, was informed yesterday evening that he may not be charged today but remains in legal jeopardy, according to a person briefed on the matter. Mr. Fitzgerald, who meets with jurors this morning, has zeroed in on potential wrongdoing by I. Lewis Libby, Vice President Dick Cheney's chief of staff, and is likely to charge Mr. Libby at least with making false statements. The testimony of reporters who have been witnesses in the case has contradicted Mr. Libby's public statements.

Mr. Fitzgerald appeared still to be pondering whether to charge Mr. Rove and has notified the political strategist that he remains under investigation.

It seems pretty clear from these reports that Rove is not at all out of the woods. He just won't get bad news tomorrow.

Here's my question. As Kevin Drum notes here, Pat Fitzgerald has been at this for almost two years. He's interviewed or brought before the grand jury numerous witnesses and had Rove in there no fewer than four times. You'd assume he's got as many facts as he's going to get.

So why he's waiting? Does he need more facts? More time to think about it? Or is there some process of negotiation going on? Is there something else Fitzgerald expects will soon break free?

A question in need of an answer.

Numerous recent press reports have stated that the term of the current Plame grand jury, having been extended once, cannot be extended again. Thus, if Fitzgerald is not done with his investigation tomorrow, he must impanel a new grand jury.

But tomorrow's big Times piece says Fitzgerald is "likely to extend the term of the federal grand jury beyond its scheduled expiration on Friday."

Does the Times just have the terminology wrong? Do they actually mean to say he plans to impanel a new grand jury? Is some very short extension of this grand jury actually possible, notwithstanding earlier reports to the contrary?

TPM counts quite a few lawyers among its readership. And this should be a fairly straightforward question for people who are familiar with the federal court system. Who can clear this up for us.

Late Update: Perhaps this is part of the explanation. Yesterday on NPR's All Things Considered, Professor Daniel Richman of Fordham Law School was asked to explain what grand juries do. Here was the exchange ...

BLOCK: First, though, some explanation about the role of the grand jury. Daniel Richman is a former federal prosecutor in New York and now a professor at Fordham Law School. He says federal grand juries have two functions.

Professor DANIEL RICHMAN (Fordham Law School): One is to investigate, which many grand juries really don't do much of, but special grand juries can be expected to do a lot of. The other is to screen, to determine whether the government has met its burden of having sufficient evidence to pursue a case formally before a court.

It's a little unclear from the context in what way he's using the word 'special'. But the DOJ Criminal Resource manual contains a section on impaneling "Special Grand Juries". And this resource guide at the University of Dayton website makes the following distinction about the terms federal grand juries can serve (emphasis added) ...

Federal grand juries are of two types--regular and special. Regular grand juries sit for a basic term of 18 months, but that term can be extended up to another 6 months, which means their total possible term is 24 months. Special grand juries sit for 18 months, but their term can be extended for up to another 18 months; a court can extend a special grand jury's term for 6 months, and can enter up to three such extensions, totaling 18 months.

Several TPM Reader lawyers have written in to say that Fitzgerald's grand jury is just such a "special grand jury". And if that's so it would seem that he has a good deal more latitude to seek extensions -- specifically, a year's more latitude -- than we've been led to believe. Others tell me that it's a six month extension and that's it.

USCourts.gov describes the difference between the two sorts of grand juries like this ...

Today, there are two main types of grand juries: regular and special. A federal judge officially convenes both types of grand juries, though a prosecutor (someone from a U.S. Attorney's office) actually conducts the proceedings. Regular grand juries are called to decide whether or not a prosecutor has presented enough evidence that a crime has been committed. Regular grand juries are convened for a period of 18 months, but may be required to sit as long as 24 months.

Special grand juries are called to investigate a particular crime, usually one that is of some importance. Special grand juries are convened for a period of 18 months, and may be extended for six month intervals for a total of an additional 18 months.

If you're knowledgable on this subject and have more to add please drop me a line.

Even Late Update: Another question. Did Fitzgerald a new grand jury in January 2004 when he took over the case? This brief from the case says the following (emphasis added) ...

In late December 2003, the Attorney General recused himself from the investigation, and delegated his authority in connection with the investigation to Deputy Attorney General James B. Comey as Acting Attorney General. Id. at 4a, 192a-193a. Deputy Attorney General Comey, in turn, appointed Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, as Special Counsel, and delegated full authority concerning the investigation to him. Ibid. The grand jury investigation began in January 2004.

That last passage is courtesy of TPM Reader SB.

Early word from the Times: Libby to be indicted; Rove not to face indictment tomorrow but to remain under investigation; Fitzgerald likely to extend the term of the grand jury.

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