Citizenspook's take on Rove - he didn't skate

[bmcatt]

Not sure if anyone follows CS, but he does provide some interest insight into the outing of Valerie Plame. He's got a new blog up that he admits is pure supposition, but, based on reading it, it seems to be a pretty good "fit" for the facts and, in fact, provides for everyone (including Truthout) being factually (and *literally*) correct in what they've said.

STRONG INDICATIONS ROVE HAS BEEN INDICTED BY RUNAWAY GRAND JURY IN "SEALED VS. SEALED"

I'll begin by telling you straight up, Citizenspook has no sources for this headline. But I believe it is the most likely explanation for all of the anomolies, strange quotes and secretive actions invoved with the official Special Counsel investigation by Patrick Fitzgerald. The following argument is my analysis of the LAW and FACTS. Unlike previous disserations by this author, the following is short and firmly based upon the evidence. I am attorney so let me argue the case based on the following mysterious indicators:

1. The "Sealed vs. Sealed" matter.
2. Luskin's carefully worded statement from this morning.
3. The carefully worded statements of Randal Samborn, Fitzgerald's press officer.
4. The strange case of Jason Leopold
5. The Constitutitional grant of authority to Grand Jurors to indict on their own volition without requiring a US Attorney "seek charges".

Read more at: Strong Indications Rove Has Been....

[Virginia Dare]

1. If the source was a member of of G.J., that would make sense...n/t

[Norquist Nemesis]

7. Except he states he has no sources

He's using his professional experience to speculate.

It's very strange Fitzie hasn't had a press conference. That indicates to me that no final decision has been made that the public is allowed to know. Also, Luskin hasn't produced any proof...he made a 'statement' then said he won't make any further comments.

So, more things that make you go hmmmmm.....

[Virginia Dare]

8. Sorry, I meant the Leopold source...n/t

[theboss]

2. So, he's indicted but he's not going to be indicted

Yea...makes perfect sense.

[bmcatt]

4. Indicted, but not over Fitz's signature

*channeling Citizen Spook*

The difference being that the Grand Jury can, on its own, hand down an indictment that the prosecutor didn't request.

Then the (presumptive) letter that Fitzgerald sent to Luskin is factually true. Fitz has *not* sought, and did not ask the GJ for, an indictment against Rove. The GJ handed one down all by itself.

It's a case of reading what everyone says *literally* and looking for the wiggle-room.

[wakeme2008]

3. Blog reading Wayne Madsen.. sorry Truthout

:shrug:

[KoKo]

5. well...this is interesting and would make some sense, I guess.

Hopefully we will learn more as time goes by...

[Garbo 2004]

6. Fed grand jury indictment requires prosecutor's signature to go forward

and charges to be filed:

"In the 1970's, a federal court of appeals (the court just below the Supreme Court) held that charges cannot be brought except in an indictment signed by a prosecutor. According to this court, if the prosecutor won't sign the charging document (which has to be an indictment), no case results. That decision effectively stymies federal grand juries from bringing charges on their own."
http://www.udayton.edu/~grandjur/faq/faq3.htm

Without Fitzgerald's signature there are no charges, no case, regardless what the grand jury might do on its own.

Luskin's public statement regarding the "pending case?" Well there's that Libby matter that is currently pending in court. A case in which Rove might be called as a witness.

[bmcatt]

10. CS has a follow-up blog post

Randall Samborn Indicates...

He makes specific notice of this with:

I have seen various commentary about yesterday’s Citizenspook report alleging that the runaway Grand Jury scenario is not possible since lower courts have held that a prosecution cannot move forward without the signature of a U.S. Attorney. I submit that any lower court ruling which states that is in direct contradiction with the Constitution.

Neither the Supreme Court nor Congress has ever removed the right of Grand Jurors to return charges without a US Attorney’s acquiescence. Far from it.

Please read my previous report on the Constitutional independent authority of Grand Jurors:

TREASONGATE: The Federal Grand Jury, FOURTH BRANCH of the US Government

link

Given that CS has stated he *is* an attorney (and has provided nothing that would indicate otherwise), I'm inclined to grant him the benefit of the doubt here.

[Garbo 2004]

11. OK, so what is the practice followed in Fed courts? Do they file charges

brought by a fed grand jury without a prosecutor's signature? If they don't and won't, based on rules, rulings and procedures that they follow, there's still no case unless the prosecutor signs off.

From the Fed grand jury manual:

Power of grand jury limited by prosecutor

Fed. R. Crim. P. 7(c) provides, in part:
The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. . . .

The grand jury cannot indict without the signature of the prosecutor. As stated in United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied, 381 U.S. 935 (1965):
The role of the grand jury is restricted to a finding as to whether or not there is probable cause to believe that an offense has been committed. The discretionary power of the attorney for the United States in determining whether a prosecution shall be commenced or maintained may well depend upon matters of policy wholly apart from any question of probable cause. . . . It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions. The provision of Rule 7, requiring the signing of the indictment by the attorney for the government, is a recognition of the power of government counsel to permit or not to permit the bringing of an indictment. If the attorney refuses to sign, as he has the discretionary power of doing, we conclude that there is no valid indictment. . . .
http://www.usdoj.gov/atr/public/guidelines/206542.htm

CitizenSpook claims to be a lawyer. Fine, FWIW on the internet, but what is the procedure actually followed by DOJ and the Fed courts? He should know that. It appears to be the one noted in the various legal sources one can cite, including the Fed Rules of Criminal procedure, that the there will be no charges filed, no case, without the prosecutor's signature. If the court overseeing the grand jury will not proceed with an indictment not authorized by the prosecutor, there is no case, there are no charges. Spook can argue con law all he wants, but it won't "prove" the validity or likelihood of his previous speculation. He can cite the Constitution, but the procedure actually followed in the courts is another matter. No Fed charges are filed without the prosecutor's signature.

[bmcatt]

12. I'm not an attorney...

so I really can't comment from the perspective of knowledge.

Reading through CS' other posts, though, he believes that the power of the grand jury to hand up an indictment or a presentment is unrestrictable except by Constitutional amendment. At least, that's the way I read what he's written.

It then follows, at least potentially, as CS says, that the reason for "Sealed vs. Sealed" is that the judge needs to rule on exactly how to read the powers of the grand jury (as, theoretically, at least, described in the Constitution) vs. what's written into federal code.

[Garbo 2004]

13. A fed judge doesn't need to decide because it's already been established

by legal precedent and Fed criminal procedure rules that without a prosecutor's signature there are no charges, no case. What CS "believes" because he's read the Constitution is one thing, the legal procedure followed in federal courts is another. In practice, based on established case law and Fed rules of criminal procedure, the power of Fed grand juries is indeed limited and an indictment without the approval of the prosecutor does not go forward.

And as for sealed vs sealed, it's pure speculation without any evidence or reason to assume that it has anything to do with the Plame matter. It could be any "garden variety" criminal case, as noted by a real criminal defense attorney who isn't anonymous, Jeralyn Merritt. And CS has no credible basis except his own speculation to assert otherwise.

[bmcatt]

14. Did you even read CS' blog?

Note - I'm not trying to defend CS. I have no expertise in this realm. Nor am I trying to make a case that Rove has / hasn't been charged by the grand jury.

By the same token, though, CS makes what seems, on the face of it at least, to be a reasonable explanation for what's occurred and does so in the face of all of the statements and actions taken by all involved parties. No one else has provided anything that comes close to being able to explain everything without needing to fall back on "someone lied about what they were saying".

As for "standard practice", how often does a grand jury hand down a presentment instead of an indictment? Heck, I'm still puzzling through that one myself. CS provides supporting federal case law (federal) with supporting state case law that indicates that the power of grand juries *is* wider than some might believe.

If you wish to be dismissive of CS, then go right ahead. But, please, don't do so on the basis that he doesn't seem to have a clue about what he's talking about, because I don't believe that's valid. He's explicitly covered why he feels that a grand jury could issue charges without requiring a prosecutor's signature as well as how such a task would be accomplished.

He's not stating that he's absolutely sure about this. He freely admits that he's in the dark and is speculating. I don't see his speculation as less worthy or less well-founded than anyone else's.

[Garbo 2004]

16. I've read it. As I recall he also put stock in RW claims that Wilson

outed his own wife. Citing a RW source, of course.

OK doke here's the relevant bit of the 5th Amendment:

"Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury..."

Now, where in the Constitution (the law of the land) does it say that this requirement doesn't apply to the states? It doesn't. Was the Constitution amended to say the states can dispense with grand juries? Which amendment was that? And yet, some states do not require grand juries for a capital crime.

Yes, a court decided that the Constitutional requirement for grand juries did not apply to the states. That was the SCOTUS. Consequently, that's now the law of the land.

But to get a SCOTUS determination on the constitutionality of a law, procedure or lower court decision, a case has to be taken to, accepted by the SCOTUS and a ruling made. Has the SCOTUS ruled that the case law and procedures used by Fed courts in this sort of matter are unconstitutional? Evidently not or surely CS would be able to assert that and cite the specific SCOTUS decision. And such a SCOTUS decision would be noted in a variety of legal sources widely available to us. And yet....such a SCOTUS decision appears not to exist. Which means the Court has not ruled on the matter and the lower court decision stands.

The way it works is until the SCOTUS takes a case on the matter and rules the procedure/rule/decisions unconstitutional, the lower court rulings stand: i.e., a federal grand jury cannot indict without the approval and signature of the prosecutor.

CS may claim to be a lawyer, but clearly con law isn't his area of expertise, IF he is a lawyer. And given the quality of his analyses, I would not take him at his word as to his bona fides.

[watercolors]

9. Does this mean that the judge will open sealed vs sealed

when it all goes to trial? I think remember reading such a statement.

[dogday]

15. This has been the strangest story

I think I have ever encountered and I can't wait to see the ending...:popcorn: