なぜ仮定的かと言いますと、検察がリークしているかどうかまたはどんな情報をリークしているのか確証が全くないからです。
「これはリークじゃないんじゃない（追記 これはどうかな）」の「追記 これはどうかな（3月14日）」でも指摘しましたが、供述内容だからといって検察がリークしたとは限らないのです。
しかし、検察からリークされることなどありえないと考えるほど私も脳天気ではありませんので、検察によるリークの可能性を仮定して考えてみることにします。
今回の小沢氏の秘書の逮捕については国策捜査という批判が加えられていますし、検察による情報リークは「特定の世論形成」だとか一定の政治的な意図に基づくリークだという指摘がなされています（例えば、la_causette）。
で、論者の言う「国策」とか「一定の政治的意図」というのは何かというと、一言でいうと、「民主党の政権奪取を妨害すること」以外に考えられません。
民主党の皆さんの言う「国策捜査」がそれ以外の意味であるとは到底考えられませんし、他の論者も特にことわらない限り、その意味で言っていると考えるのが自然でしょう。もちろんla_causetteのブログ主の小倉秀夫弁護士もそういう意味で「一定の政治的な意図」と言っているのだろうと思います。
これは一見すると、非常にわかりやすい批判です。
なぜならば、特捜部が小沢氏の秘書を逮捕したという事実は、民主党にとって不利な事実ですし、秘書の容疑事実に関する報道も容疑事実の裏付けとなるものであるならばこれも民主党にとって不利な事実の報道になるからです。
しかし、秘書の逮捕や容疑事実に関する報道が民主党にとって不利な事実である、ということ以外に「国策」とか「一定の政治的意図」を推測させる根拠は何もありません。
結果的に、民主党に不利益になっているという事実だけです。
別の観点から見てみましょう。
検察に、民主党の政権奪取を妨害するメリットがあるのかという問題です。
逆からいれば、検察にとって自公政権を維持することにメリットがあるのかという問題です。
私の感覚では、少なくとも秘書逮捕の時点においては、検察にとっては自公政権であろうと民主党政権であろうとたいした問題ではなかったと思います。
つまり、検察が自公政権を維持しなければならないという動機がありません。
なんで自分たちと関係のない政党のために動かにゃならんのかということです。
この問題について、先日紹介した「おおやにき」で
私自身も「検察は正義のみに忠実である」とか「検察は政治的動きをしない」とか断言する気はない。ただ私は、検察が政治的に動くとすればそれは検察自身のためだろうと思っているので(*4)、陰謀説については否定的である。と指摘されているのは３分の２くらい賛成です。
検察が自分の利益を度外視して自民党や公明党のために動くことなど考えられないという意味で３分の２賛成で、政治的に動く場合が想定困難という意味で３分の１賛成しないという感じです。
私には、検察の動きを政治の観点でしか見ることをしないという態度が理解できません。
検察が、どうして自民党や公明党の論理または利益のために動かにゃならんのですか？
民主党に不利な結果が生じているから、というのでは分析・検討の努力を放棄した短絡的思考としか言えません。
検察の行動を分析・検討するのであれば、検察にとって有利か不利かという観点で考えるのが最も自然であると思うのですが、当事者としての民主党の反応は当然としても、客観的に判断すべきマスコミも某弁護士も少しは頭を使ったらどうかと思えてしまいます。
で、検察にとっての最大の不利益は何かと言いますと、既出ですが、強制捜査に着手したのに起訴できなかったり、起訴したけど無罪になった場合の世間からの批判・非難や政治家側からなめられるという点です。
その観点で、（仮定的に）検察はなぜリークするのかを考えますと、捜査と公判維持を有利にすすめようとしているからだと考えるのが最も自然です。
つまり、検察がリークする相手方は誰かと言いますと、被疑者および準被疑者の弁護人たる弁護士だというのが私の推測です。
弁護人に対して、無駄な抵抗をするなという恫喝的な情報提供ではないかと私は考えています。
そうでない考え方も当然ありますが。
そして、そのような意図があるなしにかかわらず、捜査段階における情報リークを国民の皆さんがどうみるかが問題です。
国民的なニーズはあると思います。
しかし、ニーズがあるからといってリークという非公式な形での情報流通があるべき形かどうかは別問題です。
情報提供をするにしてももっと明確なルールがあったほうがいいという考えは当然あると思います。
しかし、この問題は、検察捜査だけの問題ではありません。
小倉弁護士が指摘するような弊害は警察捜査についても問題になります。
となると、小倉弁護士が指摘するような自公連立政権が検察に借りを作るとかどうかというような矮小な問題ではなく、捜査情報の情報コントロール全般の問題として検討されるべき問題だと思います。
ここまで書いた範囲では、小倉弁護士に対する批判にとどまらず、本件における検察のスタンスをどう見るかという問題ですので、こちらのブログにアップすることにします。
今回の事件の場合において、情報リークが検察の利益になるとすれば、
タイミング的に「国策捜査」であるという誹りを激しく受けることは免れない。
→
しっかりとした証拠に基づいて捜査に着手したことを早い段階で公にすることにより、批判をトーンダウンさせることが出来る。
という側面はあるのではないでしょうか？
秘密捜査を貫いていると、根拠のない疑惑がどんどん拡大して世論による批判が高まっていく恐れがあったように思います。
たぶん、本件については無印粗品さんの理解が最も素直な理解だと思います。
私のは一般論的意味合いが強いです。
＞ 弁護人に対して、無駄な抵抗をするなという恫喝的な情報提供ではないかと私は考えています。
検察といえど国民の支持が結果として得られないようでは、誰のための検察か？ ということになってしまうのと思うのです。民主主義国家の検察って何なのさ？という政治哲学的な話になっちゃいますが。
したがって逆説的なのですが、検察の政治がらみの事件捜査というのは、国民世論の支持を得るためにこうした手法をとる。ということは別に不思議でもなんでのない。とも思えます。
ただ、モトケンさんも主張されているように、好ましくないというか、ちょっとみっともないですよね。
一方で、法の番人、無法な人間は許さない！ といいつつ、自分たちは法律を破ることは許されるのか？（守秘義務違反ですよね？）
－－－もちろん検察がリークしているという過程ですが。
こういうのを世間ではダブルスタンダードと言って、信頼を失う理由の一つだと思うのです。
検事総長も、後半で明らかにするので記者会見の必要はない。といいつつ、一方でこれだけ民主党が大騒ぎしているのに、一向にリークが止まない。よほど感度が鈍いのか？ それとも俺様状態に陥っている捜査関係者がいるのか？
もう一つ考えられるのは、記者会見だと将来もし国会の証人喚問が開かれたときのことを考え、発言者と発言内容を特定されるのでそれを避けているのでは？ などとも邪推してしまいます。
どれも考えすぎだといいと思うのですが。
＞一方で、法の番人、無法な人間は許さない！ といいつつ、自分たちは法律を破ることは許されるのか？（守秘義務違反ですよね？）
捜査状況を明らかにすることが常に守秘義務違反になるかどうかについては考え中です。
もし、守秘義務違反になるのであれば、どんな形式をとっても違法になるはずです。
つまり、公式の記者会見の形でも違反は違反になるはずなのですが、特捜事件なら起訴時点で必ず次席検事が記者会見をしているはずです。
そしてそれを違法だという意見は聞きません。
内容によると思いますが、そのボーダーラインは明確ではなさそうです。
検察に限らず、警察もそうですが、公式な記者発表で公開されている内容の中にも、例えば容疑者の氏名などを実名で公開されたりしますが、事件の発生した事実・逮捕の事実・事件の概要、それ自体が守秘義務の対象である「職務上知り得た秘密」の範疇に含まれるという解釈が極論ながら出来ない訳ではないと思っています。
それ故に、公式・非公式問わず、捜査情報は裁判所の中で初めて公開されるという取扱も、極論ながら、守秘義務の観点からは一つの方策なのではないかと。
しかしながら、そんな事をしたら、報道関係者が「関係者の話で判った」という形式で報道されたりするのでしょう。ただ、この「関係者への取材で判った」と掲載される内容の確度については、本当の関係者なら絶対にそんなことは言わないし、そんな事実はそもそもないという事まで、まことしやかに書かれたりすることも日常的にあるわけです。
「関係者の話で判った」ではなく「関係者の話で記者である私がその様に解釈・再構成した」の間違いでないの？というような話を一方的に報道されるのも問題が大きいので、難しい問題を含んでいると思います。
モトケンさん＞
thx-1138さん＞
お二人の文章を読んでいて、守秘義務違反といっても色々なレベルがあるのだなぁ。ということに気がつきました。＜＝いまごろ気がつくな！という突っ込みはご容赦を（汗）。
で私なりに考えると、
1. 国家公務員の品位、信頼を損なう守秘義務違反
2. 特定の個人に利益を供する守秘義務違反
3. 法律家として守るべき守秘義務
なのかなぁ。と考えてみました。
1. の観点で見た場合、記者会見では組織の中で公にすべき内容が検討され、発言者も発言内容も完璧に特定できます。したがって反対意見があった場合に、正しく批判を行うことが出来ます。しかしリークの場合には、それが本当に該当組織からの情報なのか？ 発言内容は、報道された内容そのままなのか？ 誰が発言をしたのか？ などが不明です。反対意見を封じ込めているように感じ、民主主義的でないなぁ。と思うわけです。またこの行為は、どこに反対意見をぶつけたらいいのかがあいまいになるため、反対意見が該当組織全体に向かうことなり、信頼を損なう行為につながりますし、組織に不利益を与えているとも考えられます。
たとえ、組織の中でリークしてもかまわない内容ということで、コンセンサスが得られていたとしても、そうであるのか、ないのか？ を判断する材料がないですよね？
2. の観点では、リークの場合この情報を得たのはただ記者だけ。発言内容も記事にする段階でゆがめられるかも知れないし、発言者も伝わらない。極論をすると個人に利益を与える行為ともみなさせる。一方記者会見では、広く国民全体がその情報を得ることが出来るわけだから、これにはあたらない。
3. の観点では、絶対に守られなければならないのは、被疑者・被告人のプライバシーだと思います。次に公判に影響を与えるかもしれない情報のリークですが、これにより不利益を受けるのは検察自身。しかし、その結果極悪人が無罪になるようなことになると、これは国民の不利益にもなる。
以上のように考えたとき、1、2､の観点で見ると、記者会見はシロ。リークはマックロ。3.の観点ではどのような方法であってもマックロ。と考えてみました。
国民のための組織（検察庁法でも、国益のため。という文言があります。そして国とは国民と同義であると思います）である以上、情報を国民に提供しない。ということはあってはならないし、特に政治がらみの事件捜査では、志布志の冤罪事件のように、一つ間違うと国民の公民権への侵害になりかねないから、こまめに民意を問うという手法があってもよさそうだ。とも考えます。
会見で発言する内容をどこまでにするか？というのは悩ましい問題だとは思いますが、まったく応じないというのは、ちょっとねぇ。などと思っています。
2.に関して特定の記者に対する利益供与も問題ですが、
「特定の記者にだけ情報を流さない」ということもできますよね。
このプレッシャーは国民の知る権利にとってマイナスだと思います。
＞「特定の記者にだけ情報を流さない」ということもできますよね。
これは気がつきませんでした。まさしくおっしゃるとおり。
自分たちに都合の良い記事を書いてくれそうな（どんな、報道機関でもカラーがありますからね。）記者を選択してリークする。となると....悪質性がどんどん高くなりますね（とほほ）。
それと自己フォローです。
”マックロ”という言葉を使っていますが、厳密な法律解釈では違うのかもしれません。しかし道徳的に見れば”マックロ”。そして法律が、国民が共有すべき道徳観のうち最低限の事柄で、しかも国民すべてが共通認識しておくべき事柄とするならば（高校生のとき公民の授業で、このように習ったように記憶しています）、やはり”マックロ”なんじゃない？ という気持ちで書いています。
いつも、拝見しております。示唆に富むご意見、とても刺激的です。今回の問題についての、私なりの意見です。
今回、「国策捜査」という言葉が、小沢を擁護する側から出ている。
こういう陰謀論めいた言葉は、嫌いである。
西松建設サイドを外為法で取り調べる過程で、西松サイドの違法な献金手法が確定し、そのなかで最も大きな金額が小沢サイドに渡っていた。問題は違法な手法を大久保氏が認識していたかということだ。認識していたのなら大久保氏は政治資金規正法では有罪である。
また、西松サイドから大久保氏有罪と推定される何らかの物証（テープ、動画・画像・音声・テキストなどのデジタルデータ、あるいは手書きのドキュメントなど）や証言を得ていると推測される。
小沢サイド以外にも西松の金は流れているが、金額の多さと物証証言の厚みの違いにより大久保氏逮捕に踏みきったと考えるのが妥当であろう。
検察自体の内的論理により、検察は検察の仕事を遂行しているだけだ。
次に、「国策捜査」の根拠となる時期の問題である。これは、選挙後の方が総理の公設第一秘書逮捕といった更に大きな事件と化ける。また、昨年の１０月か１１月に行われる蓋然性が強かった総選挙が先送りになり、今にずれ込んだといった説明もある。いずれにしても証拠を固めた上で起訴に持ち込めると判断した場合、検察が捜査に踏み切るのは当然のことである。
検察も社会の一部である。社会の一部でありかつ人を拘束し取り調べ有罪を立証するという大きな力を持った組織である。その行為は当然反作用を含む巨大な乱反射を起こすことになる。特に政治家、いわんや次期総理と目されている野党の党首へその力を行使したのだから。
攻撃された側は、あらゆる言論を駆使し、あらゆるメディアをもって抵抗することは明らかである。そのことを踏まえているからからこそ、主体を現さずに「漏らす」といった形式で、検察もあらゆるメディアを利用している。今のところ情報戦では検察サイドが優勢であるようだ。
子細に報道を読んでいるが、関係者には大きく分けて三種類ある。検察、与党サイド、西松関係である。
面白いことは、「関係者筋の話によると」といった記事を削除すると小沢サイドについては「小沢議員公設第一秘書が政治資金規正法虚偽記載の疑いで逮捕」といった事実しか残らない。
後は西松サイドの裏金作りの実態だけである。
「西松サイドの裏金作りの実態を認識していない」と突っ張れば、政治資金報告書の修正といった事案と化してしまう。これは現在までなら行政指導の範疇で行われていた事案である。検察の狙いがどこにあるのか。
政治資金規正法の厳格な適用により、政治家及び会計担当者の逮捕はとても簡単になる。そして国政も地方政界も政治資金収支報告書に傷のない政治家はごく少ない。推測だが政権交代という大きな節目を期に「検察はいつでも司直の手を入れることが可能だ」というメッセージが込められている。つまり国策ではなく、検察の自己保存に無意識に根ざした捜査である。
と、思われますが、いかがでしょうか。
＞つまり国策ではなく、検察の自己保存に無意識に根ざした捜査である。
自己保存と言うより、自負心、つまり政治家の犯罪を摘発できるのは自分たちだけだという意識はあるのだろうと思います。
それだけではないと思いますが。
ただし、検察の中にはしょうもない犯罪で政治家の政治生命を奪うことについてはまずいことだという考えもあります。
逆にいうと、今回の事件は秘書の逮捕だけで小沢氏に対して多大なダメージを与えることになるわけですが、そしてそのことを検察が分かっていないと言うことなどあり得ないのですが、それでも手を付けたということは、今回の事件を、政治資金規制法違反だけを捉えても、「しょうもない犯罪」とは見ていないと思われます。
そして私は、そういう理解を支持します。
日本の総理になるかも知れない政治家が、政治資金規制法の趣旨を潜脱して影響力を行使しているということであれば、これはかなり「重大な事件」だと思います。
そして、他の（例えば自民党の）多くの政治家たちも似たようなことをしているとしても、今回の事件が「しょうもない犯罪」になるわけではありません。
ご多忙にも限らず、ご返答ありがとございました。
この事件は、今後も注視していきます。また、色々とご教示ください。
日本の総理になるかも知れない政治家が、政治資金規制法の趣旨を潜脱して影響力を行使しているということであれば、
上記は小沢蹴落としを喜ぶ人たちの勝手な推測だと思います。
検察は上記を立証できなければ、（出来ても小沢狙い撃ちの意図への疑念は消えませんが）蹴落としが目的だったことになりますね。報道された理由での秘書逮捕の前例がありませんから。
数年後これが立証できないことが分かっても、既に蹴落としの成果は挙げた事実だけが残る。
（このブログはダブハン禁止です。 モトケン）
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