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Standing on the Shoulders of Perjury Law
By Richard B. Schmitt
Los Angeles Times
Monday 15 August 2005
Washington - When Al Qaeda operative Wadih El-Hage blamed false testimony he had given to a federal grand jury on confusion and jet lag, then-assistant US Atty. Patrick J. Fitzgerald was not impressed. "I submit to you," Fitzgerald told jurors at El-Hage's 2001 trial in New York, "you heard 10 of the most pathetic excuses of perjury ever known."
El-Hage, once Osama bin Laden's personal secretary, is serving life in prison without the possibility of parole - convicted of perjury, among other things.
Things tend to work out that way when Patrick J. Fitzgerald is prosecuting a case.
Fitzgerald, 44, has a history of invoking perjury laws and related statutes to buttress his investigations.
So it may not be surprising that he is considering perjury charges in his current assignment - as a special prosecutor investigating whether anyone in the Bush administration illegally leaked the name of CIA operative Valerie Plame to journalists.
Plame's identity was first disclosed by syndicated newspaper columnist Robert Novak in what was widely seen as an attempt to discredit her husband, former diplomat Joseph C. Wilson IV, for criticizing President Bush's rationale for attacking Iraq.
Fitzgerald's 20-month-long investigation initially focused on whether administration officials had broken a federal law that made it a felony to knowingly disclose the identity of covert agents. But more recently, the inquiry is believed to have shifted to the question of whether officials - including White House Deputy Chief of Staff Karl Rove - who discussed Plame with journalists may have misled Fitzgerald and his investigators.
Fitzgerald's tendency to invoke the laws against lying comes from two things, colleagues say: the particular way he uses grand jury testimony when he conducts an investigation, and his deep-seated aversion to being lied to.
Many prosecutors go before a grand jury only after they have a case pretty well wrapped up. But Fitzgerald's approach is to use the grand jury as a tool for compelling witnesses to disclose information. And if he thinks a witness has fiddled with the truth, associates say, he becomes indignant.
"He is an aggressive prosecutor," said Joshua Dratel, a New York lawyer who represented El-Hage. "If he feels someone is lying to him, he takes it personally."
Perjury charges can buttress an overall prosecution. They also enable prosecutors to bring charges against people when it may be difficult or impossible to prove them guilty of what are seen as their underlying crimes.
The perjury rap was "like using tax prosecutions for Al Capone," said Matthew Piers, a Chicago lawyer who represented a defendant Fitzgerald prosecuted for perjury after an investigation into possible terrorism.
Those considerations may come into play in the Plame case.
A lawyer for Rove has said that his client testified truthfully and that there is no reason to believe prosecutors think otherwise.
But a year ago, Rove publicly denied that he knew who Plame was - although recent revelations about his grand jury testimony indicated he did have that information.
Questions also exist about vice presidential aide I. Lewis "Scooter" Libby. He has indicated that he did not know Plame's identity until he heard it from journalists, but one of Libby's suspected sources, reporter Tim Russert of NBC, has denied giving it to him. Libby's lawyer has declined to comment.
Fitzgerald has used perjury indictments in several terrorism cases.
El-Hage was found guilty of lying to protect Al Qaeda members and operations in connection with plots to kill Americans around the world.
And a suspected Al Qaeda sympathizer, Mustafa Elnore, was sent to prison on similar grounds. Elnore had been caught up in the investigation of the first World Trade Center bombing in 1993.
But by the time prosecutors obtained his testimony before a federal grand jury, the statute of limitations on the underlying charges was expiring.
Fitzgerald charged him with perjury, and Elnore ended up being sentenced to nearly six years in prison, even though the government had no firm evidence that he was directly involved in the plot.
Perjury prosecutions in federal court are fairly rare - and somewhat controversial. Defense lawyers say they are used in cases to manufacture crimes where the government has no evidence to support more substantive charges.
The idea of a "perjury trap," where prosecutors ask questions of witnesses knowing they will lie, and without genuinely seeking evidence, is recognized as a defense to perjury charges by some courts, said Stuart Green, a professor at Louisiana State University law school. But in general, abuses are hard to prove, he said, because prosecutors can nearly always establish that they had a legitimate motive in asking their questions.
Fitzgerald has overseen myriad perjury prosecutions in Chicago, where he is the US attorney.
His office went after one federal prisoner for lying about helping another inmate escape, and ended up getting 20 years tacked onto his sentence.
Robert Burke had sold a handcuff key to the prisoner, who used it to unlock his handcuffs as marshals were leading him from court during his bank robbery trial. The prisoner grabbed a gun from one of the guards and killed two law enforcement officers before taking his own life.
Burke was convicted of perjury, but his sentence was enhanced because the judge found that he should have foreseen the slayings.
"It is a pretty startling concept that someone can get convicted of perjury and end up being sentenced effectively for a murder," said Thomas A. Durkin, Burke's lawyer. "That's exactly what happened here." An appeal is pending.
Fitzgerald's spokesman, Randy Sanborn, declined to comment for this article.
Fitzgerald is an unusually aggressive and exhaustively thorough investigator. Because he is so deeply involved in his investigations, he also knows firsthand the damage that lying witnesses can cause, former associates said.
Although some prosecutors use grand juries to rubber stamp charges based on testimony from government witnesses, such as FBI agents, Fitzgerald views the grand jury process as a wide-ranging search for facts, an effect of which is to reveal people who have been less than truthful. The Plame investigation has involved dozens of witnesses.
"Pat definitely uses it as an inquisitorial body," said Joshua Berman, a former federal prosecutor who worked with Fitzgerald in New York and who is a partner with the law firm of Sonnenschein, Nath and Rosenthal in Washington. "He uses the grand jury as an apparatus to seek the truth. When people are not truthful ... he believes those people should be punished."
Andrew McCarthy, another former federal prosecutor who has worked with Fitzgerald, said: "He knows the energy you expend from trying to get from point A to point B to point C. And when somebody lies and that throws your trail off a million miles from where it ought to be ... the lie is a lot more consequential."