Rove and Libby Indictment Probability

Courtesy of John Tierney, the website Intrade will allow you "trade futures" (gamble to most of us) on the whether that Karl Rove and/or Scooter Libby will be indicted by Patrick Fitzgerald before the end of the year. (From the pick-list on the left side of the page, click on "legal" and then "indictments"). This morning, the "odds" were 70-to-30 for a Libby indictment and 56-to-44 for a Rove indictment.

This sort of stuff is fun, but Tierney has a different point: The odds are this high because everyone realizes that a prosecutor armed with virtually unlimited time and resources will always find a crime. In many cases, it will not be the crime that originally launched the investigation, but something else, frequently a crime that is committed as a part of the investigation itself (e.g. lying to a federal official, obstruction of justice, perjury, etc.) or a common practices that can be made out to be a technical violation of some other statute (e.g. disclosure of classified information).

Tierney thinks there is something wrong with this, and so do I. But Tierney's solution is to quit appointing special prosecutors:

The lesson for the public would be: stop appointing special prosecutors. The job can turn a reasonable lawyer into an inquisitor with the zeal of Captain Ahab - even more zeal, actually, because he'll keep hunting even after he learns there's no whale. He'll settle for anything else he can scare up.

But that is not the answer. Absent a special prosecutor, we would have to rely on the Administration to investigate itself. Can you imagine relying on the Nixon Administration investigating Watergate, for instance? Vowing never to appoint a special prosecutor is, effectively, vowing give up on investigating wrongdoing by high federal officials altogether.

But Tierney's general point is well taken. Sooner or later, if the full investigatory power of the government is directed at any individual, a "crime" will be uncovered. For ordinary citizens, the prosecutor will frequently determine that the crime is so minor or technical as to not warrant prosecution. But when the person in the cross hairs is a public figure, especially one as controversial as Karl Rove or Scooter Libby, "ignoring" evidence of a crime becomes very difficult to do, even if the Prosecutor is not someone trying to make a name for himself -- which is itself a rare thing.

Part of the answer, of course, is to not appoint so many special prosecutors. There ought to be some evidence that a "real" crime was actually committed before moving to a special prosecutor. I don't think "outing" Valerie Plame rises to that level.

In the end, though, we have to rely on the ability and willingness of the Prosecutor to exercise some judgment as to when to indict and when not to. One of Tierny's sources believes that Fitzgerald, at least, may have and be willing to exercise such judgment:

Maybe we're all misreading Fitzgerald's diligence. One former federal prosecutor now in private practice told me that Fitzgerald might just be protecting himself, investigating every conceivable offense before concluding that whatever corners were cut, there's no reason to indict.

"Fitzgerald is a lot more solid and experienced than Ken Starr," the former prosecutor told me. "He knows that if you investigate any case long enough, you'll end up with a bunch of witnesses you could accuse of perjury and obstruction of justice. But that doesn't mean you indict them. Real crime is what happens before the investigation starts."

As much as I would like to see Rove and/or Libby go down, I do not want them to go down for a slip of the tongue, or a lapse in memory, or for a "crime" for which anyone in government might just as easily be convicted if subject to the same level of scrutiny. If they go down, I want it to be for something that the man in the street will look at and say, "if those allegations are true, that guy should be in jail."