Justice Rules Requires Fitzgerald to Throw Out Libby Indictment: Jed Babbin says to John Batchelor

http://johnbatchelorshow.com/ ^ | November 16, 2005

[new yorker 77]

This comes in the wake of the Woodward revelation that a former administration official discussed Plame/Flame with Bob Woodward before Libby ever spoke to a reporter. Also, that Woodward can not recall if he revealed the information to Libby.

I am paraphrasing what I heard on tonight's John Batchelor Program during the 10:30 p.m. to 10:45 p.m. EST time slot on 770 WABC here in New York.

Keep in mind that the last time I posted iformation from this program it was regarding John Fund saying Harriet Meirs Harriet Meirs nomination will be pulled. My post was two weeks before it actually happened.

FYI: I just heard Jed Babbin, a contributing editor for The American Spectator, say that Justice Department rules will force Fitzgerald to throw out the Libby Indictments. The Justice Department rule in question states that a prosecutor under juristdiction of the Justic Department can not proceed with an indictment if that prosecutor finds that facts material to the indictment are proven to be false in a continuing investgation by the prosecitor after the indictment was handed down.

Options Given By Babbin:

Either, 1)He throws out the indictment or it will be thrown out for him by a judge.

2)If he's stupid, he takes it to trial only to lose. Or.

3)He must start from scratch with a new Grand Jury with Justice Department permission that may take years to reinvestigate everyone and their mother.

[Marine_Uncle]

"Chris Matthews will hang himself off the Tappan Zee Bridge."
Can we arrange to get some boats loaded with Freepers to watch.

[PhilipFreneau]

>>>I just heard Jed Babbin, a contributing editor for The American Spectator, say that Justice Department rules will force Fitzgerald to throw out the Libby Indictments. The Justice Department rule in question states that a prosecutor under juristdiction of the Justic Department can not proceed with an indictment if that prosecutor finds that facts material to the indictment are proven to be false in a continuing investgation by the prosecitor after the indictment was handed down. <<<

Two words: Martha Stewart. There was no underlying crime, but she went to prison anyway for lying to investigators.

[Mr Cobol]

Looks good that it will be thrown out, hope so.

[middie]

There's an old rubric that fits this: " Your wish has become father to your conclusion."

[Fledermaus]

Jeb forgot: 4) Continue to drag this out regardless of the law because the back-stabbers in government and the press will stop at nothing to "get Bush" for actually pointing out they are worthless bureaucrats and he's going to do what it takes to fight fascist Islam whether they want to appease it or not.

[Sen Jack S. Fogbound]

"reinvestigate everyone and their mother."

Don't forget the Proctoscope!

[new yorker 77]

Wait, that may not be the rule.

The Grand Jury can not be reconvened under another Justice Department rule.

By dragging this out so long, Fitzgerald can not even bring back the old Grand Jury to add new information. He must get permission to convene a new one and repeat the entire process. Only, the obstruction charge could not apply, since Libby was not the initial source and his conflicting statements with reporters under the basis that he learned the info from reporters would now be true to an extent.

Bob Woodward told me is a very nice defense.

[Don'tMessWithTexas]

Exculpatory Evidence

Legal standards

No provision of the Constitution, statute, or court rule imposes a legal obligation on the prosecutor to present exculpatory evidence (substantial evidence which directly negates guilt) to the grand jury. The majority of courts that have addressed the question have found no obligation to present exculpatory evidence.(176) However, some courts have suggested that in some circumstances a prosecutor has a limited duty to present exculpatory evidence to the grand jury, based on constitutional, legal or ethical principles.

In United States v. Page, 808 F.2d 723, 727-28 (10th Cir.), cert. denied, 482 U.S. 918 (1987), the court found that a prosecutor had a duty to disclose evidence that clearly negates the guilt of the target of the grand jury investigation.(177) The Second Circuit, in United States v. Ciambrone, 601 F.2d 616, 622-23 (2d Cir. 1979), recognized that there is no obligation to present such evidence, but advised that prosecutors should make exculpatory evidence known to the grand jury, citing ABA Project on Standards for Criminal Justice - The Prosecution Function, § 3.6, pp. 90-91.(178) More recently, the court in United States v. Dorfman, 532 F. Supp. 1118, 1131-33 (N.D. Ill. 1981), dismissed an indictment, holding that a prosecutor has a constitutional duty to present evidence that clearly negates guilt. At least one panel of the Seventh Circuit has expressed its concurrence with the principle enunciated in Dorfman.(179)

Department of Justice policy

Department of Justice policy regarding the presentation of exculpatory evidence is contained in U.S.A.M. 9-11.233 which states:

[W]hen a prosecutor conducting a grand jury investigation is personally aware of substantial evidence which directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person.

If it is unclear whether known evidence is exculpatory, a prosecutor should err on the side of disclosure.

Division attorneys should carefully consider whether the grand jury should be advised of inconsistent statements made by material witnesses. If appropriate, the grand jury should be provided with the substance of such statements. The attorney should also evaluate any statements made by the defendant to determine if they are exculpatory.

Source: Grand Jury Manual

http://www.usdoj.gov/atr/public/guidelines/206826.htm#IVG1

[new yorker 77]

But ZERO information came out showing that any of the prosecutor's allegations in the Stewart case were false.

This case just did.

[Don'tMessWithTexas]

Check #48

[CFC__VRWC]

Woodward writes: "When asked by Fitzgerald if it was possible I told Libby I knew Wilson's wife worked for the CIA and was involved in his assignment, I testified that it was possible I asked a question about Wilson or his wife, but that I had no recollection of doing so. My notes do not include all the questions I asked, but I testified that if Libby had said anything on the subject, I would have recorded it in my notes. "

Even the most incompetent bottom-of-his-law-school-class public defender you can imagine could kick the legs out from under Fitz's "perjury case" with that.

[demlosers]

"Exculpatory Evidence"

The prosecution better not go forth with a case when they know
their case got blown to bits.

[Don'tMessWithTexas]

Grand Jury Abuse

Nature of the problem and its effect

A grand jury possesses extraordinary investigative powers that are dependent on and supervised by the prosecuting attorney. Prosecutors should not abuse this serious responsibility or otherwise engage in prosecutorial misconduct before the grand jury. Attorneys should not violate the Federal Rules of Criminal Procedure, the local rules nor the case law as it applies to grand jury practice. Attorneys should also follow all appropriate Division and Department guidelines, although, failure to do so does not create any enforceable rights for a defendant or putative defendant.(185) Further, to the extent possible, attorneys should attempt to avoid even the appearance of impropriety before the grand jury. Given the wide range of permissible conduct that defendants allege as an abuse, the latter is often impossible.

As a general matter, the Department of Justice tries to maintain the highest standards for its attorneys and, therefore, its attorneys should abide by all of the appropriate rules. More specifically, misconduct before the grand jury can adversely affect the conduct of the grand jury and any subsequent prosecution. Although there is a strong presumption of regularity surrounding a grand jury proceeding,(186) sufficiently outrageous misconduct may lead a court to dismiss an indictment on due process grounds(187) or as an exercise of its supervisory powers.(188) Even if the misconduct is insufficient to justify dismissing an indictment, it may be sufficient to delay a trial while abuse motions are resolved or to justify providing a defendant with discovery of grand jury materials under Fed. R. Crim. P. 6(e)(3)(C)(ii), to which the defendant would not otherwise be entitled. Other sanctions used by the courts to remedy grand jury abuse include: quashing subpoenas or issuing protective orders,(189) suppressing grand jury testimony,(190) expunging prejudicial language from indictments,(191) and recommending disciplinary actions against the prosecutor.(192) In any event, engaging in abusive conduct inevitably leads to defending abuse motions and puts a prosecutor's credibility in issue at the outset of a case.

Another reference to the Grand Jury Handbook

If the indictment is not dismissed, could it be held up indefinitely?

[new yorker 77]

Hey Tex,

The fact that I have to read your post to understand what is going on here speaks volumes about the general public interest in this case.

Thank you.

Here's the bottom line.

The public has been lead to believe that the WHITE HOUSE OUTED A COVERT CIA AGENT.

The press continues to LIE for Wilson, but once Libby's attorney gets people to say under oath in court, if it comes to that, that FLAME WAS NOT A COVERT AGENT. That will be blasted and echoed nationwide by Libby's attorney and the public reaction will be a backfire on the libs. They will see this as a complete waste of time.

Until then, busy people have absorbed the LIE. When busy people hear they have been LIED to by libs, they will fire back at the libs.

[Don'tMessWithTexas]

Precisely. If the prosecutor knows of exculpatory evidence it may throw out any future indictment. I am not familiar with Grand Juries, but it looks like Libby could be in the clear.

[Don'tMessWithTexas]

Check #53

[new yorker 77]

You're killing me logic and information.

Let me guess.

You are not Chairman of the DNC?

[new yorker 77]

Keep in mind though that a prosecutor does not need a Grand Jury to indict someone.

If I am not mistaken, Martha Stewart lied to investigators. She never appeared before an actual Grand Jury.

That being said, I think this non-story about a non-covert agent has turned into a circle of stupidity and media hypocrisy.

[CFC__VRWC]

Even if the Dims were fool enough to pursue this after Woodward just peed all over the presents under the Fitzmas tree, they'd have to find another prosecutor willing to run with it. Fitzgerald just got his pants pulled down around his ankles in front of the world. He already looks like a poltroon, especially after that October press conference where he was quivering with outrage and making like he had the greatest case ever. There's no excuse for a halfway competent prosecutor to get blindsided like this, not after two years and 20 million bucks.

[libill]

Thanks I listened to Jed and the DiGenova interview was just on. This is better entertainment than television.