Indictment Still Sealed, Fitzgerald Still Busy

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.

Former federal prosecutor Laurie Levenson said it's very likely that the indictment was sealed in the first place because the "defendant is cooperating with an investigation and the government wants to keep that person's identity secret" to protect the integrity of the investigation.

"It would be extraordinary to keep it sealed as the process goes on," said Levenson, now a law professor at Loyola Law School in Los Angeles.

A two-month investigation undertaken by Truthout into the circumstances that led to Karl Rove's alleged exoneration in the leak probe has once again put the spotlight back on Sealed vs. Sealed, the heading under which 06 cr 128 was filed in US District Court between May 10 and May 17.

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.

Vice President Dick Cheney is a figure of keen interest to investigators working on the outing of Ambassador Joseph Wilson's wife, former undercover CIA agent Valerie Plame. Sources directly familiar with the investigation said Special Counsel Patrick Fitzgerald and his closest confidants suspect that Cheney was "involved in orchestrating a plot to discredit former ambassador Wilson."

Wilson's editorial, "What I Didn't Find in Africa," which was published in the New York Times, raised direct questions about the administration's willingness to manipulate intelligence to facilitate its march to war. In addition, Wilson raised specific questions regarding an alleged attempt by the Hussein government to acquire uranium yellowcake, a component that could be used in the construction of nuclear weapons, from the African nation of Niger. Directly contradicting statements made by George W. Bush only months earlier in his State of the Union address, Wilson not only contended that the statements by Bush regarding the Niger claims were based on highly flawed intelligence, but questioned how the administration could have allowed the debunked claims to be included in Mr. Bush's State of the Union address at all.

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. Fitzgerald has long considered bringing additional charges against other individuals in the administration. However, it's unknown whether Fitzgerald's strategy will change as the investigation moves forward. Fitzgerald has yet to comment on the status of the probe or specifically on high profile figures his investigators have focused on. The only public comments that have surfaced thus far on the direction of the investigation have come from Karl Rove's attorney, Robert Luskin, and syndicated columnist Bob Novak, who revealed Plame's CIA status in a July 14, 2003, column.

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."

When told that the federal indictment was returned by the same grand jury hearing evidence in the CIA leak case, Clark said, "There is a good chance there is some linkage there. There aren't any other high profile cases coming out of that court that we know of, so chances are that the indictment involves someone important, and that keeping the identity of the case under seal has to do with the fact that the investigation is ongoing. It's entirely likely that if the person in the indictment is cooperating, the indictment could be dismissed down the road. It's not unheard of."

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."

Loyola's Laurie Levenson agreed, saying that it was unusual to keep federal indictments sealed for a lengthy period of time, such as three months. She added that under the current administration there has been an upswing in keeping federal dockets under seal because of the so-called threat to national security.

However, Levenson added that it also appears as though that line of reasoning has been abused by some officials in order to maintain a level of secrecy

"You now get the sense that it is happening more frequently with the current administration," she said. "We live in interesting times. We do have secret dockets going on in the federal courts, and I never heard of it until this war on terrorism. The longer something is sealed the more curious it is."

John Moustakas, another former federal prosecutor in private practice in Washington, DC, said an indictment could be returned by a grand jury even if the prosecutor did not intend on seeking one.

"The grand jury could have said 'We want to vote,' and they are allowed to return an indictment over the US attorney's objections," Moustakas said. As far as keeping an indictment under seal, he said "it may be that the parties were negotiating a disposition of the case and the defendant and the prosecutor are happy not to have the defendant's name in the press."

Moustakas described a hypothetical scenario that federal prosecutors often use when convincing a defendant under investigation to cooperate:

"Typically what I would do is get evidence of wrongdoing and develop it sufficiently to get an indictment," Moustakas said. "Then I would send a target letter to the defendant. Then you put on a dog and pony show. I would bring him into my office and say, 'Here's the case, here's what you did.' Lay out main evidence against him. I would encourage a pre-indictment plea, which essentially means that it took the indictment to get him to cooperate. It wouldn't be surprising. If the sealed indictment is Karl Rove, there is a really big story there. But my view, generally, is if it's Rove, it smells bad that it's under seal still. It feels like it's intended to benefit the administration. I think the truth is, if he is cooperating against [Scooter] Libby, there is going to come a time soon that the government will have to disclose that fact to Libby's attorneys."

Dan Richman, a former federal prosecutor who is now a law professor at Fordham University in New York, had a somewhat different view. He said that he didn't find it "spectacularly strange" that 06 cr 128 has been under seal for nearly three months.

But, he added that indictments are sealed because if they're made public, "Someone is going to be shocked and upset," and that can hurt the integrity of an ongoing investigation.

You can send comments to t r u t h o u t Executive Director Marc Ash at: director @ truthout.org.

Jason Leopold spent two years covering California's electricity crisis as Los Angeles bureau chief of Dow Jones Newswires. Jason has spent the last year cultivating sources close to the CIA leak investigation, and is a regular contributor to Truthout. He is the author of the new book NEWS JUNKIE. Visit www.newsjunkiebook.com for a preview.

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