I’m about to open Christmas presents

Was it fun?

From an Illinois perspective, the problem is that this sort of thing is not beyond the pale. It’s a way of life. Impeachment has no staying power. Once he’s impeached, he can begin to rebuild his corrupt life, going to work for an asphalt firm, and everyone can go back to what they’ve been doing. Prison sentences will be more persuasive.

I do think the criminal prosecution is more important, but I can understand why you might feel differently.

I think this is interesting, from two days ago:
http://www.nytimes.com/2008/12…..tml?ref=us

I hadn’t previously noticed – in response to Genson’s request that the committee subpoena two Obama aides and Congressman Jackson, Fitz replied that no, he would prefer if they did not subpoena the two Obama aides, Jackson, nor Nils Larsen, the Trib executive V.P.

The Larsen mention is gratuitous, since Genson hadn’t sought a Larsen subpoena. Why did Fitz mention him? I think Fitz is showing that the case is about more than the Senate seat, and reminding people that the Trib allegations are very serious and very strong. We should remember, it’s the Trib stuff that kept him lying awake at night.

I think you could make a pretty strong case that Fitz sees press freedom as preeminent, but defines it somewhat differently than is traditional. While reporters saw their right to protect sources as an essential part of their personal freedom, Fitz seems to define their freedom in relation to the government … freedom from tampering by the government. So the right to keep sources secret was only an instrumental right, valid till it began to protect the government’s ability to force its own version onto the public. And while many of us see selling the Senate seat as the supreme horror here, he may well believe that selling the Senate seat was a crime, but ultimately a crime whose outcome the voters could judge, while bribing the chief news source in the state to give you favorable coverage was a more heinous crime striking at the right of the voters to know what is happening.

I’m not sure how far I’d be willing to go in characterizing that as a defining part of his world view, or in supporting it. It’s just a thought that occurred to me.

That’s much more reasonable ground.

But here, again we need to frame the prosecutorial issue correctly. A request from a legislative panel of impeachment has a substantial claim on Fitz. He is not “selectively deciding what to release”. Instead, he’s following a standard — he should release what he can, because of the weight of the request, but he should avoid releasing things that “jeopardize the criminal investigation” by tipping off witnesses to what we know and what we don’t know.

He seems to have followed this standard. I think your description of his behavior as “unsavory” and “selective” requires you to demote the claims of the legislature. Perhaps you do, and I could see that as reasonable, though I disagree. But that’s where the issue lies, I think — does the legislature have a strong claim to see evidence?

Think what you like, but you and others have been wildly commingling the legal and legislative processes with no reference to what rules apply and exactly when they come into play.

Impeachment is not a legal process as you know. The rules of evidence do not apply. But the rules of evidence in a trial are about allowing the defense to make their case to a jury. Questions of what the defense should be allowed to see and use relate to the discovery phase of the trial.

That’s a completely separate question from biasing the jury pool, which relates to jury selection, and which has very different remedies.

Fitz simply has no need to consider the rules of evidence at this point — he knows he’ll provide everything during the discovery phase. And the issue of biasing the jury pool is a small one, with specific remedies, that will be decided at a later date. Frankly, the evidence released well before trial relating corruption in Ryan’s office to the death of the Willis children was far more salacious than this stuff, and had a much stronger impact on Illinoisans, yet the trial was held here.

You might notice that in the more carefully phrased write-ups, the issue of what can/should be released is treated as a matter of “jeopardizing the criminal investigation”. In other words, the actual issue Fitz addressed is what to turn over without giving witnesses the ability to coordinate their testimony before they’ve made statements to the US Attorney. For example, he doesn’t want to let Nils Larsen, Zell’s financial adviser, know what has been recorded until Larsen has told him his version. Larsen might discover that the key moment proving guilt came during a 2-minute break required by FBI rules on taping irrelevant conversation, so he’d have no incentive to testify. The prisoner’s dilemma is a harsh one, but no rules of evidence require prosecutors to ease that dilemma.

Even when, in poorly thought through pieces, legal experts commit the same foul of commingling the legal and legislative process, they at least follow through on the thought, as in the Trib’s “we’re fighting shadows” piece, where Polales argues that Fitz’s release might prompt Genson to “argue that the transcripts represent conversations taken out of context and request that more recorded conversations, perhaps beneficial to the defense, be turned over to the panel.”

That’s it. That’s the sole potential legal outcome of providing incomplete tapes (or incomplete transcripts, for that matter) … the legal defense will be able to ask for, see and hear complete versions. There is a time when they can ask for them. That time is the discovery phase of a trial, should any occur. There is no other recourse, just as there is no path for a defense complaint over the partial transcripts provided in the criminal complaint. The patient answer of the US Atty is simply “you’ll get everything in discovery.”

Till then, all is the posturing of a defense attorney who has no legal case to argue, but is being paid to muddy the waters in a political hearing. I do get angry, and perhaps arrogant, at people who help him do so, because I live in the state that’s been on sale for the last 10 years.

One last point, which I think should be a starting point for all of these discussions, a “Fitz!” comment at the top of each thread about the impeachment. That is “Ockham’s Razor!”

In other words, the standard the legislature needs to meet is not “innocent till proven guilty”, but rather “entities should not be multiplied”. If the legislature is convinced there was an impeachable offense, that’s sufficient, and they need not deal with competing but arcane theories of how Blagojevich might have had a conversation demanding a Tribune editor be fired in return for $100 million in state money without actually meaning that the editor needed to be fire in return for the $100 mill. While it is possible within the empire of the air that multiple entities may have conspired to get Blags to say those words, repeatedly, and heatedly, without meaning those words, here on the empire of the earth we need not deal with them all. The simplest explanation is that Blagojevich was offering our money in return for Trib editorial support. At this point, I don’t for the moment care if that’s criminal, because I know it’s impeachable.

99 –

Now, there are a number of folks here who want to draw from circumstances, such as Fitzgerald’s not having brought an indictment against Rove, or such as Fitzgerald’s not having made some public presentation of the overall findings of the investigation into the Plame outing, or such as Fitzgerald’s not having just given over to Waxman the unredacted contents of his interviews of Cheney, and of Bush, or such as his having being a registered Republican, that Fitzgerald acted in those circumstances in some partisan, or sloppy, or unprofessional, or corrupt way.

If you mean me, LD, you aren’t reading what I’m typing (or typed then) Given the way he was appointed and the statements at the time and the issues of confidential treatment of evidence etc. I thought at the time and still do that he not giving unredacted interviews over was within professional standards and was what he had outlined from the beginning that he would be doing for that matter. My dispute isn’t what he did then on those kinds of items, it is what he is doing now and how it compares. That’s why I do keep saying it may be a live and learn situation as well, for that matter. I also think that as information has come out about things that he has to have known and come across in his investigations (although outside of his mandate – such as Pres Rec Act violations and destruction of evidence relating to other congressional investigations and cases pending the judicial branch) he had duties separate and apart from his mandate and there isn’t much evidence that he did anything in respect of those items.

On the legal tactics front, I think I’m quite a bit like bmaz in his assessment at 102.

Where I diverge quite a bit from you and even I think from bmaz, goes to your point here:

Yet I remain loathe to condemn more than one entire generation of colleagues, in the hundreds, for having chosen to try and struggle through a trying period.

Surely you, and bmaz as well, are prepared to concede that Fitzgerald, who finished law school at or near the top of the heap, who walked away from the money from the top firms in order to prosecute, who worked through Bush 41, who worked through two Clinton terms, who has now worked almost through two terms of spectacularly moronic misanthropy, and who appears to want nothing more than to keep on keeping on, falls into that category.

I think you dropped a word or two (something I do all the time in hurried comments here) but I’m guessing the category you mean is something like “one of the good guys” and that’s were I do differ, but not so much because of Rove, Libby, Blago or any of that. When you challenged me on that before I laid ou the response to you, but given my time back to that thread it was way EPU’d so I don’t know if I’m just being repetitive here or not. I can’t put anyone who voluntarily and knowingly has been working for torturers for years in the “good guys” category. You made the “work in the system to save the system” argument and I gave my response. You show up every day to do hair and makeup for snuff films then say at least YOU don’t kill anyone and people should look nice before they die – - it doesn’t really sell me on a “good guy” label, no matter how well you do your job.

“HI! I’m your new compeer…courtesy of the guy who lost that impeachment-investigation vote, 113-0, and who is about to be indicted. Where’s the Bill-Hopper; I got some ideas…”?