Monday, July 25, 2005
The LATimes here discusses whether possible perjury and obstruction of justice will be the main focus of the special prosecutor in evaluating the evidence received in the investigation of the leak that caused the name of a CIA agent to be released to the press. Often "short-cut" type offenses, like obstruction of justice, are used by the government because they are easier to prove. I have often maintained that it should not be proper for the government to avoid a thorough investigation just because they think there might be an easier course to pursue. Justice demands more than mere efficiency. As such obstruction of justice, perjury, false statements, and false declarations should not be used to avoid a thorough investigation of possible criminal activity. In the case of Arthur Andersen, LLP, the government learned that taking shortcuts is not always effective. In Andersen the Supreme Court struck down the conviction in a case in which the government proceeded with a single obstruction charge.
Short-cuts should be frowned upon when the government is able to investigate the underlying offense. If the underlying offense is impossible to investigate because of the destruction of evidence, intimidation of witnesses, or there is an inability to obtain the underlying evidence, charges such as obstruction of justice may be warranted. With a journalist in jail (Judith Miller of the New York Times) because she has not been released to disclose her source, these type of charges may in fact be proper if there is conduct found by the prosecutor to be false, obstructive, or intimidating. The question will certainly be whether the conduct meets the elements of one of these crimes, and more importantly "who," if anyone, engaged in such activity.
The NYTimes reports here that some may even believe that the rules regarding outing CIA agents needs review and change, to loosen the requirements placed on existing secrecy of CIA agents. If a congressional hearing proceeds this way, it may prove to be interesting, as the NYTimes notes that the CIA was the one that called for the investigation upon the disclosure of one of their operative's names. Would Congress wish to provide less protection to the CIA then they desire?
In any event, this investigation may not be on page one of all newspapers, but it continues to be prominent. (See, e.g., A4 Wall Street Jrl here). Certainly not an easy position for any prosecutor.