[promoted by BooMan because we can’t get a straight answer from the lazy press]
They say the law is a jealous mistress. And I understand the feeling that begat the phrase. I most recently felt it when I was called away from this afternoons vapid speculation about what the heck is going on in the future case of The United States of America v. Karl Rove, A.K.A. Turdblossom, in order to satisfy my own legal curiosity about the subtleties of federal criminal practice.
I’m not sure I have definitive answers. But I feel like I could safely charge someone about $1,500 dollars to advise them that they are in a world of shit, and that they need a really super federal criminal defense attorney. Join me after the flip, if you want to be bored, perhaps informed, and quite likely, no wiser than you are now about above mentioned case.
You all will have to help me with the facts of this ongoing inquiry. I’ve been away from all media for a couple of hours. But I will give you the law I know. And combine it with the paltry facts I know. Resulting in my speculative analysis.
I first found a good overview of the procedure and practice at issue. Skip it if you’re bored. What does it really matter. But I’m writing it all down, because I took notes, man. The old fashioned way.
In the Federal System, the terms “subject” and “target” assume significance because of the Justice Department’s internal regulations governing the treatment that is to be accorded to persons falling within those categories.
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[The U.S.] Attorney’s Manual defines a “subject” of a grand jury investigation as “a person whose conduct is within the scope of the grand jury’s investigation.” A “target” is defined as “a person as to whom the prosecutor or the grand jury has substantial evidence linking him/her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”
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The United States Attorney’s Manual directs that because a subpoena to the target of a grand jury investigation “may carry the appearance of unfairness” in a particular case, the prosecutor should attempt to secure the target’s voluntary appearance before the grand jury before resorting to a subpoena to compel the target to appear. If voluntary appearance cannot be obtained, the Manual provides, a subpoena will be issued only if it is approved by the grand jury and the United States Attorney or the responsible Assistant Attorney General.
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The most significant legal problem arising from the practice of subpoenaing targets and subjects to testify before the grand jury relates to the question whether such witnesses must be appraised of in advance of their status in the investigation, and whether they must be advised of their right to remain silent, their right to consult with counsel, and the risks that they run by appearing before the grand jury.
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The Justice Department guidelines for its attorneys require that modified Miranda warnings be given to targets and subjects of the grand jury investigation.
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The Justice Department Advice of Rights Form, which is attached to subpoenas served on targets or subjects of grand jury investigations reads as follows:
[Advises of crime being investigated, advises of right to take 5th on incriminating questions, advises that testimony may be used against witness, and advises of the right to consult with an attorney outside of the grand jury proceeding.]
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A second form warning that has become the subject of litigation is the so-called “target warning” — a warning to any target who is subpoenaed to testify before the grand jury that he is, in fact, a target of the grand jury’s investigation. The Supreme Court has held that the Constitution does not require that “target warnings” be given, even if the witness is not aware that the grand jury investigation has focused on him, and even if the witness is subsequently indicted for the offense under investigation.
Grand Jury Law and Practice, 2nd ed., Elston, et. al., (2004), Vol 1., Part III, Sections 6.23 – 6.24, pp 6-199 – 6-207, citations omitted.
A good overview. But I wanted a bit more, and found this:
An individual can be subpoenaed to testify before a grand jury even though he is a target or a subject of its investigation. But because bringing a target before a grand jury may “carry the appearance of unfairness,” the Department of Justice has adopted an internal policy which requires prosecutors to seek a “voluntary appearance” before using a subpoena to this end. If a target will not appear voluntarily, making it necessary to issue a subpoena, the subpoena must be approved by “the grand jury and the U.S. Attorney or the responsible Assistant Attorney General.”
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Although prosecutors are not obliged to present exculpatory evidence to a grand jury, the Department of Justice’s policy is to let a target or subject go before a grand jury if she asks to do so.
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Indeed, prosecutors are encouraged to invite targets to appear, at least “in appropriate cases.”
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The prosecutor should extend the invitation to appear in a letter which advises the target that she can appear on a specified date and that she should consult an attorney about the appearance. The letter should also inform the target that if she appears, she will have to waive her privilege against self-incrimination, she will be put under oath and fully examined by the prosecutor and the grand jury, and anything she says can be used against her.
Federal Grand Jury: A Guide to Law and Practice, Bremer, et. al., section 13.4, pp 360-62 (1996). Citations omitted, emphasis added
So what does all this mean?
First, the fact that Rove’s lawyer is quoted today as saying he did not get a “target letter” no longer seems that important, in my analysis. Under Justice Department rules, a target letter would seemingly be required, from Fitzgerald to Rove, if Fitzgerald was issuing a subpoena to Rove, and had substantial evidence Rove committed a crime. But, it seems to me now, that Fitzgerald followed Department guidelines and invited Rove to testify first. Rove accepted, alleviating the need for a subpoena, and also the need for a target letter.
Also, Bremer, supra at p. 362, says that Justice Department policies do not create rights which targets can later use in court to defeat charges, and that Courts would be unlikely to view any lack of a target letter as any barrier to successful prosecution. So even if Fitzgerald should have given a letter and didn’t, it will probably end up being no harm, no foul.
Second, it seems to me that Fitzgerald has been treating Rove like a “target” (a term used by Bremer, supra to identify a person who will almost certainly be indicted) for quite a while. He is doing it by the book.
Fitz invited Rove to talk before the Grand Jury without issuing a subpoena, as is required by DOJ procedures. Rove accepted the invitation, alleviating the need for a subpoena. And with his latest return to the grand jury, Fitz has issued Rove a letter advising him of his rights (as best I can tell from media reports). This would be by the book, assuming he now has substantial evidence Rove committed a crime.
It could also be, that this latest round of testimony is something being pressed for by Rove, in an effort to get his side of the story on the record, and perhaps persuade the grand jury not to indict. In which case, Fitz would be following procedure by allowing the testimony, so long as he did not think it would jeopardize his case. The policy makes the DOJ look fair by giving targets/defendants every chance to present their side of things. And it allows Fitz to pile up more perjury counts and eliminate factual loopholes that might exist.
Getting a sense for the process, I cannot help but conclude that Karl Rove will be frog-marched in some manner or form. Soon. I think turdblossom is fucked.
It is still only my two-cents. Lots of wheeling and dealing could be going on behind the scenes, about which I know nothing, and couldn’t begin to guess. But I am willing to bet real money that Fitz is, at this moment, holding almost all the cards. Rove’s ass is flapping in the wind. And he ain’t going to talk his way out of it, despite what a wizard he thinks he is. A witness stand is not a good place for a political debate. I think this may be the end. And I am a happy camper again.
I think Fitz dictates testimony day, too. If he’s playing hardball, I’d slap Rover in the chair tomorrow at 8:30 a.m. sharp, and have the indictments ready for release on Monday morning. No rush, I guess.
And let the political machinations begin.
