Sunday, October 30, 2005
Enough With the Baseball Analogies! Are you Ready for Some Football?
Some on the left have expressed disappointment that Patrick Fitzgerald didn’t issue indictments for revealing the identity of a CIA operative instead of perjury and obstruction of justice. Conservatives are pushing hard the idea that the less specific charges are somehow weaker and less significant.
However, as I sit here on the couch on a Sunday morning, watching my beloved Raiders kick another field goal against the Titans, I can’t help but think about how the role of a prosecutor is similar to the role of a football coach calling plays during a game.
As the Raiders have proven time and again, it is much easier to call plays when you have the whole field in front of you than when you are in the “red zone.” It is much easier to move the ball when you have your whole playbook available to you. You can grind away with the running game, you can throw the ball downfield, or anything in between. And the defense has to worry about all of it! This gives you a huge advantage that you don’t have when you, and the defense, know that you only have to move the ball a few yards.
So what does this have to do with Fitzgerald’s case?
If he had filed charges for revealing the identity of a CIA operative, what would he have to prove to a jury? What would the defense be? For this type of charge, testimony would revolve around fairly narrow, technical issues such as whether Libby knew Valerie Plame was an undercover CIA agent, whether Libby knew the reporters didn’t already know about her, and whether it was revealed with specific intent. Lots of little details, and both sides would have to focus specifically on advancing or defending them. The whole trial would end up taking place in the red zone!
A perjury charge, on the other hand, is wide open! To prove to a jury that Libby lied and knew it at the time, there is the narrow task of showing there was a false statement. That's the running game! Libby’s defense will be something like, “Oops, I forgot what I said!” That's putting everyone up on the defensive line!
But in convincing a jury that Libby lied, Fitzgerald can also look deep. That is, he can focus on convincing the jury that there was a reason to lie. That’s what will allow him to open up the playbook! He can look at everything that was going on in the Vice President’s office surrounding Joseph Wilson trip to Niger. He can look at everything related to intelligence on the war in Iraq. Everything is potentially related to the reason Libby lied. Unlike the specific underlying charges that started the investigation, the perjury and obstruction charges keep the whole paying field wide open!
Now, excuse me, the Raiders just tossed a long touchdown pass!