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Scooter Libby Was Not Arrested

Some conservative commentators have tried to parallel the odd arrest of Illinois Governor Rod Blagojevich on Dec. 9, 2008, and the indictment of I. Lewis 'Scooter' Libby, Vice President Cheney's Chief of Staff, on Oct. 28, 2005. There may be turn out to be similarities between the two legal matters, both prosecuted by Chicago U.S. Attorney Patrick Fitzgerald, but there is little similarity in the treatment of the two men. To argue that Libby and Blagojevich were treated alike is false.
Scooter Libby Was Not Arrested Fox News Sunday interview with Dick Cheney: Dec 21, 2008, from transcript: "Chris Wallace, HOST: I'm Chris Wallace and this is Fox News Sunday: . . . WALLACE: [Question:] Highest moment the last eight years[?]. CHENEY: Highest moment in the last eight years. Well, I think the most important, the most compelling, was 9/11 itself and what that entailed, what we had to deal with, the way in which that changed the nation and set the agenda for what we've had to deal with as an administration. WALLACE: And I assume that's also your lowest moment. CHENEY: Sure, yeah. WALLACE: Federal prosecutor Patrick Fitzgerald. CHENEY: I'm going to pass on that. WALLACE: What about the criticism that in the Blagojevich case, as in the Libby case, he doesn't just stay within the four corners of the indictment but he makes political comments? CHENEY: I'm going to pass on that. WALLACE: Did you really tell Senator Leahy bleep yourself? CHENEY: I did." As Wallace does here, some conservative commentators have tried to parallel the odd arrest of Illinois Governor Rod Blagojevich on Dec. 9, 2008, and the indictment of I. Lewis 'Scooter' Libby, Vice President Cheney's Chief of Staff, on Oct. 28, 2005. There may be turn out to be similarities between the two legal matters, both prosecuted by Chicago U.S. Attorney Patrick Fitzgerald, but there is little similarity in the treatment of the two men. To argue that Libby and Blagojevich were treated alike is uproariously false. One colossal difference is that the bureaucratic and genteel processing of Scooter Libby did not include arrest. No guns, few badges; no nightsticks; no handcuffs. Libby was not arrested. He was indicted. This is not a news flash: In white-collar criminal cases, indictment is more typical than arrest. The news is not that Libby was indicted. The real news is that Gov. Blagojevich was not. The absence of an indictment, of course, did not make the news, that cold December morning when the U.S. Attorney's FBI allies arrested Blagojevich in a daring pre-dawn raid on his house in Chicago?very quietly, as they assured the public in a press conference the same day, so as not to wake the children. The news item that flashed around the globe, saturating the daily news cycle from its earliest moment, was the governor's arrest. The day before the arrests of Blagojevich and top aide John Harris, the Northern District of Illinois also issued a simultaneous subpoena for the governor's records on 32 other parties. This news item was not mentioned at the gaudy Dec. 9 press conference but has since been retrieved via a FOIA request by reporters at the Chicago Sun-Times. Remarkably, one of the persons mentioned in the Dec. 8 subpoena is Antoin 'Tony' Rezko?the Chicago immigrant fundraiser long since the subject of a lengthy investigation by the NDIL, tried and convicted in a lengthy trial in 2008. In response to questions about the Rezko part of the subpoena--was the Dec 8 subpoena the earliest NDIL subpoena to Gov. Blagojevich about Antoin Rezko? And if so, why wasn't the governor subpoenaed about Rezko earlier, given that Mr. Rezko was investigated for some time and has already undergone trial and conviction??NDIL press spokesman Randall Samborn replies by email, "I'm sorry, we do not comment on subpoenas or investigations." Questioned about the date for Rezko's sentencing and whether Rezko is being held in solitary confinement until his sentencing, Samborn replies, "Rezko has a status hearing on February 4. Thank you." The belated subpoena for Blagojevich, about Rezko, months after Rezko's trial, suggests that the Tony Rezko trial was not envisioned as somehow 'flipping' Rezko to get Blagojevich. Looking at that Dec. 9 arrival of FBI agents to handcuff Blagojevich at his home, the different handling of Libby must strike any rational observer forcibly. Scooter Libby was eventually convicted on four counts in the CIA leak matter, but spared prison time by President Bush, as Fitzgerald surely anticipated he would be?that notion that Libby would somehow by 'flipped' to incriminate the Vice President was always wishful thinking in the blogosphere. Meanwhile, he was extended every courtesy. At no time was he yanked out of his office or his home. He was unhindered in the performance of all three of his remarkable government positions; he was given ample notice of the investigation at every juncture. Sensibly enough from a prosecutor's point of view, he was politely invited to appear before a grand jury, to make statements that resulted in his conviction. That grand jury was the second one in the case, convened by Fitzgerald immediately after the first grand jury disbanded?when Washington Post reporter Bob Woodward belatedly revealed that he was a leakee of that tip about Valerie Plame Wilson's being CIA, and that Deputy Secretary of State Richard Armitage was his leaker. You have to appreciate the way Woodward and Armitage were slammed into a side pocket just when they presumably felt they had stymied investigation. Their macho-man discussion of the item is preserved for history in the Libby trial exhibits, on tape and in transcript. But the point here is that there were two grand juries on the matter, and Libby never had to go through a humiliating ordeal with investigators. Notwithstanding wishful thinking in the blogosphere about 'perp walks' and seeing Karl Rove et al. 'cuffed' or 'frog-marched', etc., the entire process was handled with punctilio. In fact, prosecutorial courtesy extended so far as to postpone Libby's trial until after the 2006 congressional elections. This move, reportedly at defense counsel's request, blunted political damage to the GOP, which lost seats but would have lost more had the Libby trial been held beforehand. Remarkably, the Special Counsel acquiesced in the postponement although on May 4, 2006, Vice President Cheney and his people were given permission to see and hear everything relative to the CIA leak investigation, and this permission was indicated to Fitzgerald via the Justice Department. At every juncture of the CIA leak investigation from at least May 4, 2006, onward, in other words?as Sen. Sheldon Whitehouse revealed to the public?Cheney had official free rein to be informed of anything transpiring. [I HAVE A FACSIMILE OF THE ONE-PAGE JUSTICE DEPARTMENT DOCUMENT AUTHORIZING THIS ACCESS FOR THE OVP AND OTHER PERSONNEL. UNDOUBTEDLY SEN. WHITEHOUSE AND THE SENATE JUDICIARY COMMITTEE ALSO POSSESS IT IF NEEDED.] This was the investigation praised, at least in the center-left part of the political spectrum, as independent. The contrast to the Blagojevich matter is striking. The Libby case involved extensive professional courtesy and frequent delays at the request of high-priced and well-funded counsel. No showing up at the alleged perp's doorstep, no unannounced invasion of his home space, no FBI chat about him at press conferences, no leaks from sources 'close to the investigation', nobody wearing a wire, no traced telephone calls, no electronic surveillance. Libby's wife was not humiliated; no personal or informal conversations, secretly taped, were aired for public ridicule with as much animus and meanness as possible. Nobody said that even the 'most cynical' personnel in some federal agency were 'shocked' by Libby's actions. Instead the investigation ground on, in its sedate white-collar way--while all the governmental policies upheld by Libby's office continued. Libby had ample time to round up highly placed supporters, who financed his large team of defense attorneys--with open consent and encouragement at the highest levels of the Bush administration up to and including the White House. In the Blagojevich matter, on the other hand--well, exactly where does the public, as represented by its federal law enforcement officials, stand? There was, as mentioned, no indictment, and the prosecutor has since asked for and received a three-month extension to bring one. The Dec. 9, 2008, charging document in the arrest of Gov. Rod Blagojevich and John Harris contains two counts. The first count is a broad statement about "honest services," based on material gathered 2002-2004 and on the wiretaps of fall 2008. It skips years 2005-2007: (a) ROD BLAGOJEVICH and JOHN HARRIS, and others have conspired with each other and with others to commit offenses against the United States, namely to devise and participate in a scheme to defraud the State of Illinois and the people of the State of Illinois of the honest services of ROD BLAGOJEVICH and JOHN HARRIS . . . The second count is about the Chicago Tribune: (b) ROD BLAGOJEVICH and JOHN HARRIS, being agents of the State of Illinois, a State government which during a one-year period, beginning January 1, 2008 and continuing to the present, received federal benefits in excess of $10,000, corruptly solicited and demanded a thing of value, namely, the firing of certain Chicago Tribune editorial members responsible for widely-circulated editorials critical of ROD BLAGOJEVICH, intending to be influenced and rewarded in connection with business and transactions of the State of Illinois involving a thing of value of $5,000 or more, namely, the provision of millions of dollars in financial assistance by the State of Illinois, including through the Illinois Finance Authority, to the Tribune Company involving the Wrigley Field baseball stadium . . .": The arrest was followed by an immediate press conference in Chicago, which U.S. Attorney Patrick J. Fitzgerald opened with maximum effect: "This is a sad day for government. It's a very sad day for Illinois government. Governor Blagojevich has taken us to a truly new low. Governor Blagojevich has been arrested in the middle of what we can only describe as a political corruption crime spree. We acted to stop that crime spree. "The most appalling conduct Governor Blagojevich engaged in, according to the complaint filed today or unsealed today, is that he attempted to sell the Senate seat--the Senate seat he had the sole right, under Illinois, to appoint to replace President-elect Obama." There is no count specifically charging the selling or attempting to sell a Senate seat. The wiretap excerpts pertaining to the Senate seat are part of the underlying 76-page affidavit included in the document over the signature of an FBI agent. Opening with the Senate seat, Fitzgerald went on to make clear his intense concern about the Tribune: "There's a hospital--a children's memorial hospital--believing that it's getting $8 million, but its CEO has not coughed up a campaign contribution, and the thought that that money may get pulled back from a children's memorial hospital is something that you cannot abide. There is an editor that they'd like fired from the Tribune, and I laid awake at night, worried whether I'd read in the paper in the morning that when there were lay-offs, that we'd find out that that person was laid off." The complaint--the complaint lays out, in there in fact, when there were layoffs, there were conversations to find out whether the editor who should of--they thought should be fired, and he wasn't. And the governor was asking whether there would be more layoffs. So we have a governor in this modern times, the only one who's looking for more layoffs. You take that, what's going on and add it to the fact that we have a Senate seat that seemed to be, as recently as days ago, auctioned off to, you know, to the highest bidder for campaign contributions." In further comments at the press conference, FBI agent Robert Grant took pains to assure the public that the Blagojevich children were being considered. Apparently not realizing that they could have waited to arrest the governor after his children were at school, or arrested the governor at his office, Grant said that he phoned the governor, "advising him that . . . there were two FBI agents outside his door; asked him to open the door so we could do this as quietly . . . without waking the children": "QUESTION: Could Mr. Grant describe the arrest? There were no cameras there, no witnesses apparently. Can you explain how it happened? MR. GRANT: It occurred about six o'clock in the morning, and it was a phone call from me to the governor, advising him that we had a warrant for his arrest, that there were two FBI agents outside his door; asked him to open the door so we could do this as quietly, without the media finding out about it, without waking the children. He was very cooperative, and that's it." Apparently these clean-language types in the feds' office also overlooked the alternative of just calling Blagojevich and telling him to show up at the courthouse: "QUESTION: Was he handcuffed? MR. GRANT: Yes, which is normal, standard practice for us. QUESTION: What did he say on the phone? MR. GRANT: First question? QUESTION: What did he say to you? MR. GRANT: Well, I woke him up. So the first thing was, was this a joke? But I'll leave the rest--you know, he tried to make sure this was an honest call. So . . . QUESTION: How about his family? Was his wife there when this happened? And his children, did they wake up? MR. GRANT: They did not wake up that I know of. They were beginning to stir as we left, but they were not awake and not aware. But his wife was awake." Perhaps a group of FBI agents and attorneys was too shocked by all that reiteration of a four-letter word to think clearly. If only the late great George Carlin were still alive. Meanwhile, any parent who could find this narrative credible?the bit about arriving at dawn to evade the children's notice, for instance--should probably be reported to Child Social Services. Following press reports of the favorable attention given to the Tribune in the charging document and the press conference, Fitzgerald's people then leaked to the Wall Street Journal that really the arrest was because the Tribune broke the story of the investigation (wiretapping) rather than to prevent a crime spree. Revising that item promptly, a day or so later the NDIL office exonerated the Tribune: "The specific timing of the arrest of Rod Blagojevich wasn't affected by a Chicago Tribune article revealing that the Illinois governor was being secretly recorded." These are the times we live in. Prominent reporters sit on stories of significant public concern, timing their release for political effect?or lack of same, as in that Sen. Bob Packwood sexual harrassment matter some years back?or holding them for publication in books. Litigators sit on settlements in civil cases, timing them in the attorney's financial interest rather than the client's interest, as described in A Civil Action, Jonathan Harr's nonfiction book about attorney Jan Schlichtmann, played by John Travolta in the movie. Evidently prosecutors can also sit on cases, timing them in the interests of political or professional strategizing. Margie Burns is a journalist in Washington, D.C. She covered the spring 2007 trial of I. Lewis 'Scooter' Libby.