ROBERT SIEGEL, host:
One thing you have to say for Patrick Fitzgerald: He runs a very tight ship. We have no idea what his plans are in terms of possible indictments, but lawyers familiar with criminal law know that there's a limited universe of offenses that might have been committed and might be the subject of indictments. Irvin Nathan is a Washington defense lawyer and formerly deputy assistant attorney general in the Criminal Division of the Justice Department.
Welcome to the program.
Mr. IRVIN NATHAN (Former Deputy Assistant Attorney General): Thank you. It's good to be here.
SIEGEL: One of the areas of possible wrongdoing that we read references to is a person being less than forthright with either the FBI or the grand jury about what he said about Valerie Plame Wilson. What's the range of offenses that a prosecutor would be thinking of in that regard?
Mr. NATHAN: Well, as you mentioned, I have no inside information from Mr. Fitzgerald or from his staff, and I think he's done an excellent job of maintaining this in confidence what his plans are.
It is quite often the case that with respect to investigations that start on one basis, they end up going off on false statements to the FBI or false statements at the grand jury. There also could be obstruction of justice, and there can be a conspiracy to obstruct justice, both by agreeing with others as to false statements or false testimony to make and encouraging others to make false statements could also be included as an offense.
SIEGEL: And is it really common for various kinds of lying to be brought as criminal charges, lying about saying or doing something, without charging somebody for saying or doing that, that is without the underlying offense also being charged in some way?
Mr. NATHAN: Yes. And I, you know, point to the example of Martha Stewart as a good example. She was not charged with insider trading, but she was charged for misleading the SEC concerning that matter, and she was convicted. It is quite common to bring those kinds of charges. They're easier to prove. And there are a lot of details on other statutes that might be difficult to prove the substantive offenses.
SIEGEL: Disclosing Valerie Plame Wilson's identity as a CIA agent brings both a narrow law into play, one that's just about CIA agents, but doesn't it also raise alarms about the unauthorized release of classified information as covered by other laws?
Mr. NATHAN: Yes, absolutely. It's not just, by the way, CIA agents; it's covert agents that is part of it...
SIEGEL: Covert agents.
Mr. NATHAN: ...and that is a difficult statute to prove. It's rarely been used because you'd have to prove that the person who identified the agent knew that the agent was a covert agent and that the United States was taking actions to protect the identity of such a covert agent. But with respect to classified information, the statutes are broader and the leaking of classified information is also an offense.
SIEGEL: If, in fact, getting Valerie Plame's connection to the CIA proved to be the basis for some kind of criminal charge, whether it was a violation of the use of classified materials or even the narrower law, could a reporter conceivably be named as an unindicted co-conspirator or indicted?
Mr. NATHAN: I think it is possible. I don't think that it would be consistent with the policies of the Department of Justice to bring charges against the reporters, but it is not impossible to conceive of such circumstances or to conceive of a reporter in the situation as an unindicted co-conspirator.
I do want to make one further point, however, and that is that there's, of course, the possibility that no charges will be brought here...
SIEGEL: Mm-hmm. Mm-hmm.
Mr. NATHAN: ...and there will be a declination. And the difference here between Mr. Fitzgerald's position and the independent counsel--which no longer exists and that statute has expired--is that under the independent counsel law, there was a report that could be issued in the case of a declination. In the case of a prosecutor at the Department of Justice such as Mr. Fitzgerald, it would be quite unusual to have any report. And so if there's a declination, we may never get to the bottom of this story.
SIEGEL: What I hear from you--again, based on no inside information at all...
Mr. NATHAN: That's true.
SIEGEL: ...is that what we're likely to hear over the next couple of weeks is either indictments, or, if not, then the tight ship that Patrick Fitzgerald has been running will just sail off, and we'll never know what happened aboard.
Mr. NATHAN: Well, that is certainly a possibility, that there'll be a declination and no explanation. This has a peculiar situation, of course, because a number of the witnesses before the grand jury are journalists who undoubtedly will want to write about their experiences, and obviously some have. But if there's a declination, we are not likely to get the official reason and the version of events that the prosecutor and his staff have put together.
SIEGEL: Irvin Nathan, thanks a lot for talking today with us.
Mr. NATHAN: My pleasure.
SIEGEL: Irvin Nathan is a Washington defense lawyer, formerly deputy assistant attorney general in the Criminal Division of the Justice Department.
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