Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

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.

Share your thoughts here.

Rep. Jerry Nadler (D-NY) speaks out on his call to expand the Fitzgerald investigation to look at a possible White House conspiracy to deceive Congress.

Good Counsel?

A reader points out this little graf down near the bottom of a Reuters article on Rove and his possibly-imminent indictment.

In advance of any possible indictment against Rove, his legal team consulted with former Justice Department spokesman Mark Corallo on legal and public relations strategy, a source close to the matter said.

Carollo was named Director of Public Affairs at the Justice Department on September 23rd, 2003, just a few days before the CIA made its initial referral to the Justice Department for an investigation into the disclosure of Valerie Plame's identity.

I assume that that timing is merely a coincidence. Carollo had previously been Principal Deputy Director of Public Affairs since March 2002. But this does mean that Carollo was the top communications person at Justice and one of John Ashcroft's close aides during the entire time Ashcroft was supervising the investigation. And he remained so until about a year ago -- in other words, through most of the life of the Fitzgerald investigation. Now he's working for Rove, the target of the investigation.

Murray Waas in National Journal: "Vice President Cheney and his chief of staff, I. Lewis "Scooter" Libby, overruling advice from some White House political staffers and lawyers, decided to withhold crucial documents from the Senate Intelligence Committee in 2004 when the panel was investigating the use of pre-war intelligence that erroneously concluded Saddam Hussein had weapons of mass destruction, according to Bush administration and congressional sources."

We'll have more on this shortly. But there's more to be said about why this is coming out now, especially since the chairman of the committee, Sen. Roberts (R-KS) was doing his best already to cover for the vice-president.

Okay, no Fitzgerald indictments today. But maybe a few Coingate indictments as a tide-me-over?

Unite the Base Because I've Gotta Have Someone on My Side When I Can Pat Fitzgerald's Ass Watch (UBBIGHSMSWICPFAW) ...

Proposed title for new SCOTUS nomination waiting game.

Boy, this one's delicious on like twenty different levels.

There's a great line from Peter Novick's book That Noble Dream in which he quotes Gene Genovese explaining how he got kicked out of the Communist Party for 'having zigged when I was supposed to zag'.

The quote is from memory. So I may not have it precisely right; but that's the gist. And I am often reminded of it when I see examples of party-liners cut off at the knees churning out the claptrap of the day while the party leaders are themselves about to shift course entirely.

And see here this clip from today's Washington Times, sent on to me by reader JI, apparently picked up by The Corner ...

Conservative activist Michael D. Brown said internal GOP polling being cited by party and administration emissaries purports to show that "70 percent of self-identified conservative voters have a favorable impression of Harriet Miers."

The emissaries are warning that ordinary Republicans beyond the Washington Beltway continue to support the nomination because they trust President Bush, even after several weeks of conservative opposition to her, according to several conservative Miers critics who have been courted by the White House.

The administration is "disappointed that conservatives inside the Beltway are fighting among ourselves over this nomination, and it fuels the fires for our enemies, for Democrats," said Mr. Brown, the former Federal Emergency Management Agency director.

So in just sixty days Brown goes from FEMA Director to disgraced crony to "conservative activist". Who says there are no second acts?