In a story posted on Tuesday night, The New York Times, citing unnamed government officials, said that special counsel Patrick Fitzgerald, “is not expected to take any action” in the CIA leak case this week. That’s good news for me; I have tickets to see U2 on Wednesday night. But it’s also bad news, I am scheduled to go to Arkansas at the end of next week to deliver a speech at Arkansas State University-Jonesboro. (Longtime readers of this blog will recall that I was supposed to speak at Arkansas State University-Mountain Home last April but then the gig was canceled for what appeared to be political reasons. But after a mighty controversy erupted–in which the state legislature decried this apparent act of censorship–the faculty senate at ASU-Jonesboro voted for a resolution requesting that I be invited to speak at the Jonesboro campus, the main hub of the ASU system. The president of ASU took the faculty’s recommendation, and I accepted his invitation.) So I am now hoping that if anything happens it happens early next week. The grand jury is scheduled to expire October 28, and lawyers tell me that most prosecutors do not like to wait until the last day of a grand jury’s term to announce indictments. But it’s possible. It’s also possible that new information could cause Fitzgerald to extend his inquiry and impanel a new grand jury. Bottom line: we don’t know. On Tuesday, The Washington Post reported Fitzgerald might announce his findings on Wednesday. The Times then reported that would not be likely. What’s your hunch?
Most of the Times piece was devoted to the question of whether Fitzgerald would issue a report if he declines to indict anyone. In the old days–that is, when there was an independent counsel law–independent counsels were obligated to issue final reports detailing what they had uncovered and explaining any decisions not to prosecute. Fitzgerald is not an independent counsel but a special prosecutor, appointed in 2003 by then-Deputy Attorney General James Comey because Attorney General John Ashcroft had recused himself. With the independent counsel law expired, there can no longer be independent counsels. Consequently, Fitzgerald is not required to file a final report.
But can he produce such a report if he would like to? As the Times notes, there is a debate among legal experts as to whether he has the authority to do so. Fitzgerald has obtain much of his information through the grand jury process, and grand jury proceedings are supposed to be secret. Some lawyers believe Fitzgerald could issue a report, especially if requested by Congress; others think Justice Department regulations would prohibit that. But you can guess how the political appointees at the Justice Department would interpret the regulations. And would any Republican leaders of Congress ask Fitzgerald for a report? With the Bush administration and congressional Republicans not keen to have a full accounting, it could be difficult for Fitzgerald–if he wants to produce a report–to win a tussle over how to read the regulations. As for whether Fitzgerald wishes to issue a final report, his office has declined to comment on this matter (or any other matter).