What Does the Government Really Want from Miller and Cooper?
Saturday :: July 02, 2005
http://talkleft.com/new_archives/011281.html
What Does the Government Really Want from Miller and Cooper?
Special Prosecutor Fitzgerald has stated in court pleadings that he already knows the identity of Judith Miller and Matthew Cooper's sources regarding the senior white house official who leaked the identity of CIA operative Valerie Plame to Robert Novak.
Miller did some reporting for a story but never wrote an article. She has maintained she intends to go to jail rather than reveal her source -- though Fitzgerald has indicated in court filings that he already knows that official's identity.
So, why is it so necessary for them to provide the information?
As the Wapo article suggests, the investigation has moved from one involving the identity of the White House official to one involving perjury - i.e., a cover-up. The source may have been questioned in front of the grand jury and lied.
Knowing the identity of the source is not enough for a perjury conviction. There must be two witnesses to the perjurious statement. Telephone records would not be enough, because they only provide the number dialed, not the identity of the person speaking. Matthew Cooper's and Judith Miller's e-mails and notes may provide that corroboration.
Remember when former President Clinton was investigated for perjury?
The law is clear that in a perjury prosecution under 18 U.S.C. ' 1621, the falsity of a statement alleged to be perjurious cannot be established by the testimony of just one witness. This ancient common law rule, referred to as the "two-witness rule, " has survived repeated challenges to its legitimacy, and has been judicially recognized as the standard of proof for perjury prosecutions brought under ' 1621. See, e.g., Weiler v. United States, 323 U.S. 606, 608-610 (1945) (discussing the history and policy rationales of the two-witness rule); United States v. Chaplin, 25 F.3d 1373, 1377-78 (7th Cir. 1994) (two-witness rule applies to perjury prosecutions).
The Department of Justice recognizes the applicability of the two-witness rule to perjury prosecutions brought under Section 1621. See Department of Justice Manual, 1997 Supplement, at 9-69.265.
The "two witness" rule, derived from common law, governs the proof required for a perjury conviction under Section 1621. Weiler v. United States, 323 U.S. 606, 609 (1945). The rule means that a perjury conviction may not rest solely on the uncorroborated testimony of one witness. United States v. Hammer, 271 U.S. 620, 626 (1926). The two witness rule, however, does not require two witnesses to every perjurious statement. The falsity of the perjurious statement may be established either by the testimony of two independent witnesses or by one witness and independent corroborating evidence that is inconsistent with the innocence of the accused. Weiler, 323 U.S. at 610. Also, the second witness need not fully corroborate the first, but must substantiate the other's testimony concerning the defendant's perjurious statement. United States v. Chaplin, 25 F.3d 1373, 1381-82 (7th Cir. 1994).
I don't know who the White House official is, but the higher up he is, the more likely the prosecutor would want two live witnesses, not just documents, to support a perjury charge. What do you think of this possibility, from American Prospect in 2004?
Rove also adamantly insisted to the FBI that he was not the administration official who leaked the information that Plame was a covert CIA operative to conservative columnist Robert Novak last July. Rather, Rove insisted, he had only circulated information about Plame after it had appeared in Novak's column. He also told the FBI, the same sources said, that circulating the information was a legitimate means to counter what he claimed was politically motivated criticism of the Bush administration by Plame's husband, former Ambassador Joseph Wilson.
