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Patrick Fitzgerald Rebuts Judy Miller in Statement on Libby Pardon

Update: I’ve got an op-ed in the NYT on the pardon this morning. It starts and ends this way:

“There is a cloud over the White House as to what happened. Don’t you think the F.B.I., the grand jury, the American people are entitled to a straight answer?”

With those words, uttered over a decade ago, Patrick Fitzgerald, a prosecutor appointed as special counsel to investigate whether the president and his closest aides had broken the rules of espionage for their own political gain, sealed the conviction of I. Lewis Libby Jr., known as Scooter, for obstructing his investigation into the White House.

[snip]

Mr. Trump’s pardon of Mr. Libby makes it crystal clear that he thinks even the crime of making the country less safe can be excused if done in the service of protecting the president. But it doesn’t mean the pardon will protect him.

In his statement on Scooter Libby’s pardon, Trump pointed to a purported retraction from Judy Miller to justify the pardon.

In 2015, one of the key witnesses against Mr. Libby recanted her testimony, stating publicly that she believes the prosecutor withheld relevant information from her during interviews that would have altered significantly what she said.  The next year, the District of Columbia Court of Appeals unanimously reinstated Mr. Libby to the bar, reauthorizing him to practice law.  The Court agreed with the District of Columbia Disciplinary Counsel, who stated that Mr. Libby had presented “credible evidence” in support of his innocence, including evidence that a key prosecution witness had “changed her recollection of the events in question.”

Fitz released his own statement on the pardon, which I’ve reproduced in full below. In it, he debunks both the substance of Judy’s claims about her retraction (basically, that Armitage leaked the information and no damage was done) and that her testimony was that central to the guilty verdict.

While the President has the constitutional power to pardon, the decision to do so in this case purports to be premised on the notion that Libby was an innocent man convicted on the basis of inaccurate testimony caused by the prosecution. That is false. There was no impropriety in the preparation of any witness, and we did not tell witnesses what to say or withhold any information that should have been disclosed. Mr. Libby’s conviction was based upon the testimony of multiple witnesses, including the grand jury testimony of Mr. Libby himself, as well as numerous documents.

Years ago I pointed out that Libby could have been convicted based solely on his own notes and David Addington’s testimony. What Judy’s testimony added was confirmation that Libby repeatedly provided details about Plame’s CIA status, which her retraction doesn’t affect.

And I’d add that Judy protected some of her other sources, and Cheney protected any journalists he spoke with. That’s the trick with obstruction — it prevents people from learning what really happened.


Fitzgerald statement

While the President has the constitutional power to pardon, the decision to do so in this case purports to be premised on the notion that Libby was an innocent man convicted on the basis of inaccurate testimony caused by the prosecution. That is false. There was no impropriety in the preparation of any witness, and we did not tell witnesses what to say or withhold any information that should have been disclosed. Mr. Libby’s conviction was based upon the testimony of multiple witnesses, including the grand jury testimony of Mr. Libby himself, as well as numerous documents.

I considered it an honor to work with the agents and prosecutors who conducted the investigation and trial with integrity and professionalism. Mr. Libby, represented by able counsel, received a fair trial before an exacting trial judge and a jury who found the facts clearly established that Libby committed the crimes he was charged with. That was true yesterday. It remains true today.

The issues at stake in this case were important. As was stated in a government sentencing memo more than a decade ago:

Mr. Libby, a high-ranking public official and experienced lawyer, lied repeatedly and blatantly about matters at the heart of a criminal investigation concerning the disclosure of a covert intelligence officer’s identity. He has shown no regret for his actions, which significantly impeded the investigation. Mr. Libby’s prosecution was based not upon politics but upon his own conduct, as well as upon a principle fundamental to preserving our judicial system’s independence from politics: that any witness, whatever his political affiliation, whatever his views on any policy or national issue, whether he works in the White House or drives a truck to earn a living, must tell the truth when he raises his hand and takes an oath in a judicial proceeding, or gives a statement to federal law enforcement officers. The judicial system has not corruptly mistreated Mr. Libby; Mr. Libby has been found by a jury of his peers to have corrupted the judicial system.

That statement rings true to this day. The President has the right to pardon Mr. Libby and Mr. Libby has been pardoned. But the facts have not changed.

I have made this statement in my personal capacity.

There Are Almost Certainly Other DAG Rosenstein Memos

As I noted in this post, Robert Mueller’s team of “Attorneys for the United States of America” responded to Paul Manafort’s claim that Rod Rosenstein’s grant of authority to the Special Counsel did not extend to the money laundering he is currently being prosecuted for by revealing an August 2, 2017 memo from Rosenstein authorizing Mueller to investigate, along with a bunch of redacted stuff,

Allegations that Paul Manafort:

  • Committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law;
  • Committed a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych.

As the filing notes, this memo has not been revealed before, neither to us nor to Manafort.

That’s all very interesting (and has the DC press corps running around claiming this is a big scoop, when it is instead predictable). More interesting, however, is the date, which strongly suggests that there are more of these memos out there.

Mueller is unlikely to have waited two and a half months to memorialize his scope

I say that, first of all, because Rosenstein wrote the August 2 memo two and a half months after he appointed Mueller. Given Trump’s raging attacks on the investigation, it’d be imprudent not to get memorialization of the scope of the investigation at each step. Indeed, as I’ve noted, in the filing Mueller points to the Libby precedent, arguing that this memo “has the same legal significance” as the two memos Jim Comey used to (publicly) memorialize the scope of Patrick Fitzgerald’s investigation.

The August 2 Scope Memorandum is precisely the type of material that has previously been considered in evaluating a Special Counsel’s jurisdiction. United States v. Libby, 429 F. Supp. 2d 27 (D.D.C. 2006), involved a statutory and constitutional challenge to the authority of a Special Counsel who was appointed outside the framework of 28 C.F.R. Part 600. In rejecting that challenge, Judge Walton considered similar materials that defined the scope of the Special Counsel’s authority. See id. at 28-29, 31-32, 39 (considering the Acting Attorney General’s letter of appointment and clarification of jurisdiction as “concrete evidence * * * that delineates the Special Counsel’s authority,” and “conclud[ing] that the Special Counsel’s delegated authority is described within the four corners of the December 30, 2003 and February 6, 2004 letters”). The August 2 Scope Memorandum has the same legal significance as the original Appointment Order on the question of scope.

The first of those Comey letters, dated December 30, 2003, authorized Fitz to investigate the leak of Valerie Plame’s identity. The second of those, dated February 6, 2004, memorialized that Fitz could also investigate,

federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; to conduct appeals arising out of the matter being investigated and/or prosecuted; and to pursue administrative remedies and civil sanctions (such as civil contempt) that are within the Attorney General’s authority to impose or pursue.

It’s the second memo that memorialized Fitz’ authority to prosecute Scooter Libby for protecting Dick Cheney’s role in outing Valerie Plame.

Mueller, then the acting FBI Director, would presumably have been in the loop of the Fitz investigation (as Christopher Wray is in Mueller’s) and would have known how these two letters proceeded. So it would stand to reason he’d ask for a memo from the start, particularly given that the investigation already included multiple known targets and that Trump is even more hostile to this investigation than George Bush and Dick Cheney were to Fitz’s.

Admittedly, unlike the Comey memo, which was designed for public release, there’s no obvious, unredacted reference to a prior memo. Though something that might imply a prior memo is redacted at the top of the released memo (though this is probably a classification marking).

And, given that this memo was designed to be secret, Rosenstein may have written the memo to obscure whether there are prior ones and if so how many.

The memo closely follows two key dates

That said, the date of the memo, August 2, is mighty curious. It is six days after the July 27 Papadopoulos arrest at Dulles airport. And seven days after the July 26 no knock search of Paul Manafort’s Alexandria home.

That timing might suggest any of several things. It’s certainly possible (though unlikely) the timing is unrelated.

It’s possible that Rosenstein wrote the memo to ensure those two recent steps were covered by his grant. That wouldn’t mean that the search and arrest wouldn’t have been authorized. The memo itself notes that Mueller would be obliged to inform Rosenstein before each major investigative step.

The Special Counsel has an explicit notification obligation to the Attorney General: he “shall notify the Attorney General of events in the course of his or her investigation in conformity with the Departmental guidelines with respect to Urgent Reports.” 28 C.F.R. § 600.8(b). Those reports cover “[m]ajor developments in significant investigations and litigation,” which may include commencing an investigation; filing criminal charges; executing a search warrant; interviewing an important witness; and arresting a defendant.

Both Papadopoulos’ arrest and that dramatic search would fit this criteria. So it’s virtually certain Rosenstein reviewed Urgent Memos on both these events before they happened. Plus, his memo makes it clear that the allegations included in his memo “were within the scope of the Investigation at the time of your appointment and are within the scope of the Order,” meaning that the inclusion of them in the memo would retroactively authorize any activities that had already taken place, such as the collection of evidence at Manafort’s home outside the scope of the election inquiry.

As I noted, the memo also asserts that Special Counsels’ investigative authority, generally, extends to investigating obstruction and crimes the prosecutor might use to flip witnesses.

The filing is perhaps most interesting for the other authorities casually asserted, which are not necessarily directly relevant in this prosecution, but are for others. First, Mueller includes this footnote, making it clear his authority includes obstruction, including witness tampering.

The Special Counsel also has “the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses” and has the authority “to conduct appeals arising out of the matter being investigated and/or prosecuted.” 28 C.F.R. § 600.4(a). Those authorities are not at issue here.

Those authorities are not at issue here, but they are for the Flynn, Papadopoulos, Gates, and Van der Zwaan prosecutions, and for any obstruction the White House has been engaging in. But because it is relevant for the Gates and Van der Zwaan prosecutions, that mention should preempt any Manafort attempt to discredit their pleas for the way they expose him.

The filing includes a quotation from DOJ’s discussion of special counsels making it clear that it’s normal to investigate crimes that might lead someone to flip.

[I]n deciding when additional jurisdiction is needed, the Special Counsel can draw guidance from the Department’s discussion accompanying the issuance of the Special Counsel regulations. That discussion illustrated the type of “adjustments to jurisdiction” that fall within Section 600.4(b). “For example,” the discussion stated, “a Special Counsel assigned responsibility for an alleged false statement about a government program may request additional jurisdiction to investigate allegations of misconduct with respect to the administration of that program; [or] a Special Counsel may conclude that investigating otherwise unrelated allegations against a central witness in the matter is necessary to obtain cooperation.”

That one is technically relevant here — one thing Mueller is doing with the Manafort prosecution (and successfully did with the Gates one) is to flip witnesses against Trump. But it also makes it clear that Mueller could do so more generally.

Mueller used the false statements charges against Papadopoulos to flip him. He surely hopes to use the money laundering charges against Manafort to flip him, too. Both issues may have been at issue in any memo written to newly cover the events of late July.

Mueller may not have revealed the scope of the Manafort investigation at that time

Now consider this detail: the second bullet describing the extent of the investigation into Manafort has a semi-colon, not a period.

It’s possible Mueller used semi-colons after all these bullets (of which Manafort’s is the second or third entry). But that, plus the resumption of the redaction without a double space suggests there may be another bulleted allegation in the Manafort allegation.

There are two other (known) things that might merit a special bullet. First, while it would seem to fall under the general election collusion bullet, Rosenstein may have included a bullet describing collusion with Aras Agalarov and friends in the wake of learning about the June 9 Trump Tower meeting with his employees. More likely, Rosenstein may have included a bullet specifically authorizing an investigation of Manafort’s ties with Oleg Deripaska and Konstantin Kilimnik.

The Mueller memo actually includes a specific reference to that, which as I’ve noted I will return to.

Open-source reporting also has described business arrangements between Manafort and “a Russian oligarch, Oleg Deripaska, a close ally of President Vladimir V. Putin.”

The latter might be of particular import, given that we know a bunch of fall 2017 interviews focused on Manafort’s ties to Deripaska and the ongoing cover-up with Kilimnik regarding the Skadden Arps report on the Yulia Tymoshenko prosecution.

All of which is to say that this memo may reflect a new expansion of the Manafort investigation, perhaps pursuant to whatever the FBI discovered in that raid on Manafort’s home. If so, that should be apparent to him, as he and his lawyers know what was seized.

Still, I wouldn’t be surprised if he inquired about what authorized that July 26 raid, if for no other reason than to sustain his effort to make more information on Mueller’s investigation public.

The redactions almost certainly hide two expansions to the investigation as it existed in October 2016

Now let’s turn to what else (besides another possible Manafort bullet) the redactions might show, and what may have been added since.

The unredacted description of the Manafort investigation takes up very roughly about one fifth of the section describing allegations Mueller was pursuing.

The Schiff Memo revealed that DOJ had sub-investigations into four individuals in October 2016.

Endnote 7 made it clear that, in addition to Page, this included Flynn and Papadopoulos, probably not Rick Gates, and one other person, possibly Roger Stone.

In August 2017, all four of those would have been included in a Rosenstein memo, possibly with a bullet dedicated to Gates alone added. That said, not all of these would require two or more bullets (and therefore as much space as the Manafort description). Papadopoulos’ description might include two, one dedicated to the collusion and one to the lying about collusion, or just one encompassing both the collusion and the lying. Flynn’s might include three, one dedicated to the collusion, one to the lying about it, and one to the unregistered foreign agent work, including with Turkey, that we know Mueller to have been investigating; or, as with Papadopoulos, the lying about the collusion might be incorporated into that bullet. Stone’s bullet would likely have only reflected the collusion, an investigation that is currently very active. Carter Page’s suspected role as a foreign agent might be one bullet or two.

That suggests, though doesn’t confirm, that there are a few other things included in those redacted bullets, things not included in the investigation in October 2016 as reflected in the Schiff memo.

Indeed, we should expect two more things to be included in the bullet points: First, the name of any suspect, including the President, associated with the obstruction of justice. Rosenstein himself had already been interviewed with respect to that aspect of the investigation by August 2, so surely Rosenstein had already authorized that aspect of the investigation.

The redactions most likely also include the names of Don Jr and Jared Kushner (and Paul Manafort), for their suspected collusion with Russia as reflected in the June 9 meeting. At least according to public reporting, Mueller may have first learned of this in June when Manafort and Kushner confirmed it in turning over evidence to Congress and Mueller. The first revelations that Mueller was obtaining subpoenas from a dedicated grand jury were on August 3, just one day after this memo. That same day, reports described Mueller issuing subpoenas related to the June 9 meeting.

Indeed, it’s quite possible Rosenstein issued this memo to memorialize the inclusion of the President’s spawn among the suspects of the investigation.

Rosenstein has almost certainly updated this memo since August 2

All that said, there’s not enough redacted space to include the known expanded current scope of the investigation, and given that the newly expanded scope gets closer to the President, Rosenstein has surely issued an update to this memo since then. These things are all definitively included in the current scope of the investigation and might warrant special mention in any update to Rosenstein’s authorizing memo:

Many of these — particularly the ones that affect only Russians — might be included under a generic “collusion with Russia” bullet. The closer scrutiny on Jared, however, surely would get an update, as would any special focus on the Attorney General.

More importantly, to the extent Mueller really is investigating Trump’s business interests (whether that investigation is limited just to Russian business, or more broadly) — the red line the NYT helpfully set for the President — that would necessarily be included in the most up-to-date memo authorizing Mueller’s activities. There is no way Mueller would take actions involving the President personally without having the authorization to do so in writing.

Which is why we can be virtually certain the August 2 memo is not the last memo Rosenstein has written to authorize Mueller’s actions.

Mind you, Mueller probably wouldn’t want to release a memo with several pages of redacted allegations. Which may be why we’re looking at the redacted version of an almost certainly superseded memo.

Updated: Later today Mueller’s team asked to file a copy of an exhibit–which given Judge Berman Jackson’s description of it as released in redacted form, has to be the Rosenstein memo–under seal. Which suggests they’re going to show Manafort what else they’re investigating (which I bet is the Deripaska stuff).

Trump FBI Nominee Christopher Wray Gave Inappropriate Briefings to John Ashcroft During Plame Investigation

Donald Trump has tweeted that he will nominate Christopher Wray, who worked in Bush’s DOJ, to head the FBI.

While most people are noting that Wray is Chris Christie’s personal lawyer in Bridgegate, I’m at least as interested in some of the things he did while at DOJ, as Assistant Attorney General for the Criminal Division.

Wray was on the border of a lot of torture decisions in 2004 — the ACLU database of torture documents is full of entirely redacted documents involving him.

Wray was involved in one of the noted field trips to Gitmo to watch torture.

And he also charged David Passaro, the only CIA person (Passaro was a contractor training Afghans to be paramilitaries) ever charged for torture. DOJ seized a bunch of documents Passaro had which would have shown that CIA’s chain of command had approved torture. Whatever you think of Passaro, I strongly believe he was denied due process in a number of ways.

To Wray’s credit, he was the first to review Stellar Wind data for information that might need to be disclosed as discovery to defendants.

While Assistant Attorney General for the Criminal Division, Wray was involved in negotiations with lawyers for Chiquita (including Eric Holder) that resulted in Chiquita’s executives avoiding all penalties for materially supporting Colombian terrorists.

Finally and probably most importantly, also while AAG DOJ in the early days of the Plame investigation, Wray provided inappropriate briefings to John Ashcroft about what Ashcroft’s buddies had said during FBI interviews.

Among other things, the sources said, Ashcroft was provided extensive details of an FBI interview of Karl Rove, President George W. Bush’s chief political advisor. The two men have enjoyed a close relationship ever since Rove advised the Attorney General during the course of three of Ashcroft’s political campaigns.

The briefings for Ashcroft were conducted by Christopher Wray, a political appointee in charge of the Justice Department’s criminal division, and John Dion, a 30-year career prosecutor who was in charge of the investigation at the time. Neither Wray nor Dion returned phone calls seeking comment for this story.

The briefings raise questions about the appropriateness of Ashcroft’s involvement in the investigation, especially given his longstanding ties to Rove. Senior federal law-enforcement officials have expressed serious concerns among themselves that Ashcroft spent months overseeing the probe and receiving regular briefings regarding a criminal investigation in which the stakes were so high for the Attorney General’s personal friends, political allies, and political party. One told me, “Attorneys General and U.S. Attorneys in the past traditionally recused for far less than this.”

This is what led to Ashcroft’s recusal and the appointment, by Deputy Attorney General Jim Comey, of Patrick Fitzgerald as special counsel.

In short, it seems Wray is likely to ensure that highers up never see any consequences for their actions. And he sure seems likely to keep Trump in the loop on the investigation of Trump.

Update: Jack Goldsmith, who of course worked closely with Wray while at DOJ, thinks he is a “a good choice, a much better choice than any name I previously saw floated, and a much better choice than I expected Trump to make,” though notes there will be a “probing confirmation process” ahead.

Update: Here’s a hearing in which Wray got questioned about inappropriate briefings. h/t NW

Update: LOLOL. DOJ released a list of endorsements for Wray, about which I’ll have more to say. But they included an endorsement from the guy who made Wray give him inappropriate briefings.

“Chris Wray is a man of integrity with a deep commitment to the rule of law. His substantial experience, particularly in serving on our Justice Department team fighting terrorism after 9/11, uniquely qualifies him to protect America as FBI Director.”
–Former Attorney General John Ashcroft

The Last USA: Dana Boente Is the Best Short Term Solution

In the wake of the Comey firing, particularly given the way Deputy Attorney General Rod Rosenstein let himself serve as a pawn, many people have renewed their call for “a special prosecutor.” In the short term, however, I believe Dana Boente — that is, the status quo — is a better solution.

As a reminder, Dana Boente is the US Attorney of Eastern District of VA. With Rosenstein’s confirmation as DAG, Boente is the last remaining confirmed US Attorney in the United States. Boente’s office is overseeing at least two parts of the Russian investigation: the generalized investigation into Wikileaks, and the investigation into Trump’s campaign. The latter investigation recently issued subpoenas to Mike Flynn associates. There are reportedly parts of the investigation in three other places: some work being done in Main Justice, as well a a team investigating Guccifer 2.0/Shadow Brokers in San Francisco, and a team investigating the Russian hackers in Pittsburgh.

But the bulk of what people think of as “the Russian investigation” — the investigation into Trump’s cronies — is happening in EDVA, overseen by The Last USA.

In addition to reporting up to Rosenstein as DAG and Rosenstein as Acting AG for the Russian investigation, Boente just took over as Acting Assistant Attorney General for National Security Division — the office that reviews things like FISA orders. That means Boente — for better and worse — has more authority, on several levels, than a “Special Counsel” would have.

First, note I use the term “Special Counsel,” not “Special Prosecutor.” Ken Starr was a Special Prosecutor, but in the wake of his fiasco and given persistent questions about the constitutionality of having someone who was totally independent from the structure of DOJ prosecuting people, Congress got rid of the provision supporting Special Prosecutors.

So if Rod Rosenstein wanted to appoint someone “independent” to oversee the Russian investigation, he’d have to use the Special Counsel provision.

While I think it is permissible to hire someone from outside of DOJ to do that job (so it is possible he could call up corporate lawyer Pat Fitzgerald for his third ride on the Special Counsel merry-go-round to, in dramatic fashion, save the investigation undercut by the firing of his good friend Jim Comey), in practice the recent Special Counsel appointments (the UndieBomb 2.0 leak investigation, the StuxNet leak investigation, the John Kiriakou prosecution, the Torture investigation, and the Plame investigation) have all been DOJ prosecutors, either US Attorneys (in all but one case) or an Assistant USA Attorney, in the case of John Durham’s whitewash of torture. Plus, while Fitz is still well-loved at DOJ and FBI as far as I know, if Rosenstein appointed him, I bet Trump would fire him within minutes because he’s sure as hell not going to be “loyal.” And because of Fitz’ past gunning hard for Cheney and Bush, many Republicans might not put up much of a stink there.

If Rosenstein were to adhere to the practice of naming existing DOJ prosecutors, though, it’d mean he’d be choosing between Boente, The Last USA, or an AUSA (perhaps one of the ones who recently reported to him in MD). In both cases, the Special Counsel would report to Rosenstein for AG approvals (as Pat Fitz reported to Jim Comey for the Plame case).

You can see quickly why Boente is the preferable option. First, there’s no reason to believe he isn’t pursuing the investigation (both investigations, into Wikileaks and Trump’s associates) with real vigor. He is a hard ass prosecutor and if that’s what you want that’s what you’d get. His grand jury pool is likely to be full of people with national security backgrounds or at least a predisposition to be hawks.

But — for better and worse — Boente actually has more power than a Special Counsel would have (and more power than Fitz had for the Plame investigation), because he is also in charge of NSD, doing things like approving FISA orders on suspected Russian agents. I think there are problems with that, particularly in the case of a possible Wikileaks prosecution. But if you want concentrated power, Boente is a better option than any AUSA. With the added benefit that he’s The Last USA, which commands some real respect.

Sure. If next week Trump calls Boente to dinner and demands his loyalty on threat of firing, this may change. But the same logic that people are using with a Special Counsel (that if Trump fired that person, maybe then Republicans in Congress would want something more independent) holds for Boente. Firing The Last USA ought to be as incendiary as firing an AUSA, assuming anything will be.

Where the Bodies Are Buried: A Constitutional Crisis Feinstein Better Be Ready To Win

In a piece at MoJo, David Corn argues the Senate Intelligence Committee – CIA fight has grown into a Constitutional crisis.

What Feinstein didn’t say—but it’s surely implied—is that without effective monitoring, secret government cannot be justified in a democracy. This is indeed a defining moment. It’s a big deal for President Barack Obama, who, as is often noted in these situations, once upon a time taught constitutional law. Feinstein has ripped open a scab to reveal a deep wound that has been festering for decades. The president needs to respond in a way that demonstrates he is serious about making the system work and restoring faith in the oversight of the intelligence establishment. This is more than a spies-versus-pols DC turf battle. It is a constitutional crisis.

I absolutely agree those are the stakes. But I’m not sure the crisis stems from Feinstein “going nuclear” on the floor of the Senate today. Rather, I think whether Feinstein recognized it or not, we had already reached that crisis point, and John Brennan simply figured he had prepared adequately to face and win that crisis.

Which is why I disagree with the assessment of Feinstein’s available options as laid out by Shane Harris and John Hudson in FP.

If she chooses to play hardball, Feinstein can make the tenure of CIA Director John Brennan a living nightmare. From her perch on the intelligence committee, she could drag top spies before the panel for months on end. She could place holds on White House nominees to key agency positions. She could launch a broader investigation into the CIA’s relations with Congress and she could hit the agency where it really hurts: its pocketbook. One of the senator’s other committee assignments is the Senate Appropriations Committee, which allocates funds to Langley.

Take these suggestions one by one: Feinstein can only “drag top spies” before Congress if she is able to wield subpoena power. Not only won’t her counterpart, Saxby Chambliss (who generally sides with the CIA in this dispute) go along with that, but recent legal battles have largely gutted Congress’ subpoena power.

Feinstein can place a hold on CIA-related nominees. There’s even one before the Senate right now, CIA General Counsel nominee Caroline Krass, though Feinstein’s own committee just voted Krass out of Committee, where Feinstein could have wielded her power as Chair to bottle Krass up. In the Senate, given the new filibuster rules, Feinstein would have to get a lot of cooperation from her Democratic colleagues  to impose any hold if ever she lost Senate Majority Leader Harry Reid’s support (though she seems to have that so far).

But with Krass, what’s the point? So long as Krass remains unconfirmed, Robert Eatinger — the guy who ratcheted up this fight in the first place by referring Feinstein’s staffers for criminal investigation — will remain Acting General Counsel. So in fact, Feinstein has real reason to rush the one active CIA nomination through, if only to diminish Eatinger’s relative power.

Feinstein could launch a broader investigation into the CIA’s relations with Congress. But that would again require either subpoenas (and the willingness of DOJ to enforce them, which is not at all clear she’d have) or cooperation.

Or Feinstein could cut CIA’s funding. But on Appropriations, she’ll need Barb Mikulski’s cooperation, and Mikulski has been one of the more lukewarm Democrats on this issue. (And all that’s assuming you’re only targeting CIA; as soon as you target Mikulski’s constituent agency, NSA, Maryland’s Senator would likely ditch Feinstein in a second.)

Then FP turns to DOJ’s potential role in this dispute.

The Justice Department is reportedly looking into whether the CIA inappropriately monitored congressional staff, as well as whether those staff inappropriately accessed documents that lay behind a firewall that segregated classified information that the CIA hadn’t yet cleared for release. And according to reports, the FBI has opened an investigation into committee staff who removed classified documents from the CIA facility and brought them back to the committee’s offices on Capitol Hill.

Even ignoring all the petty cover-ups DOJ engages in for intelligence agencies on a routine basis (DEA at least as much as CIA), DOJ has twice done CIA’s bidding on major scale on the torture issue in recent years. First when John Durham declined to prosecute both the torturers and Jose Rodriguez for destroying evidence of torture. And then when Pat Fitzgerald delivered John Kiriakou’s head on a platter for CIA because Kiriakou and the Gitmo detainee lawyers attempted to learn the identities of those who tortured.

There’s no reason to believe this DOJ will depart from its recent solicitous ways in covering up torture. Jim Comey admittedly might conduct an honest investigation, but he’s no longer a US Attorney and he needs someone at DOJ to actually prosecute anyone, especially if that person is a public official.

Implicitly, Feinstein and her colleagues could channel Mike Gravel and read the 6,000 page report into the Senate record. But one of CIA’s goals is to ensure that if the Report ever does come out, it has no claim to objectivity. Especially if the Democrats release the Report without the consent of Susan Collins, it will be child’s play for Brennan to spin the Report as one more version of what happened, no more valid than Jose Rodriguez’ version.

And all this assumes Democrats retain control of the Senate. That’s an uphill battle in any case. But CIA has many ways to influence events. Even assuming CIA would never encourage false flags attacks or leak compromising information about Democrats, the Agency can ratchet up the fear mongering and call Democrats weak on security. That always works and it ought to be worth a Senate seat or three.

If Democrats lose the Senate, you can be sure that newly ascendant Senate Intelligence Chair Richard Burr would be all too happy to bury the Torture Report, just for starters. Earlier today, after all, he scolded Feinstein for airing this fight.

“I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly,”

Burr’s a guy who has joked about waterboarding in the past. Burying the Torture Report would be just the start of things, I fear.

And then, finally, there’s the President, whose spokesperson affirmed the President’s support for his CIA Director and who doesn’t need any Democrats help to win another election. As Brennan said earlier today, Obama “is the one who can ask me to stay or to go.” And I suspect Brennan has confidence that Obama won’t do that.

Which brings me to my comment above, on AJE, that Brennan knows where the literal bodies are buried.

I meant that very, very literally.

Not only does Brennan know firsthand that JSOC attempted to kill Anwar al-Awlaki on December 24, 2009, solely on the President’s authority, before the FBI considered him to be operational. But he also knows that the evidence against Awlaki was far dodgier than it should have been before the President authorized the unilateral execution of an American citizen.

Worse still, Feinstein not only okayed that killing, either before or just as it happened. But even the SSCI dissidents Ron Wyden, Mark Udall, and Martin Heinrich declared the Awlaki killing “a legitimate use of the authority granted the President” in November.

I do think there are ways the (Legislative) Democrats might win this fight. But they’re not well situated in the least, even assuming they’re willing and able to match Brennan’s bureaucratic maneuvering.

Again, I don’t blame Feinstein for precipitating this fight. We were all already in it, and she has only now come around to it.

I just hope she and her colleagues realize how well prepared Brennan is to fight it in time to wage an adequate battle.

Dear Eric Holder: You’re Doing Recusal Wrong

Let me start this post by saying I think it is absolutely appropriate for Eric Holder to have recused himself from the UndieBomb 2.0 investigation, in part because — as someone read into the UndieBomb 2.0 operation, he was interviewed by the FBI (though so was James Cole, who is now in charge of the investigation), and he turned over his own phone contacts to the FBI — but also because top Administration officials like John Brennan at least should be under close scrutiny in this investigation.

Nor do I think, in his recusal, Eric Holder did anything in bad faith. I have zero reason to believe Holder is tampering with this investigation, in any way shape or form.

But Jeebus, Holder is doing this entire recusal thing wrong.

That’s true, first of all, because with a rabid Congress (at the time he recused from the investigation and now) accusing him of wrongly delegating this investigation to Ronald Machen in an investigation that could net incredibly powerful people as suspects, Holder did not write his recusal — or a delegation of authority of Attorney General powers — to James Cole, who is overseeing the investigation.

Now, Holder claims not to remember whether he memorialized his recusal in past cases, including the John Edwards investigation — the most high profile case in which he has recused. And though George Holding, who conducted that investigation and now represents the Raleigh, NC, area in Congress, was in the room, I’m not sure they clarified whether he had written anything down there, either. Holder was, however, very clear about what authorities he delegated to Patrick Fitzgerald when he investigated the John Adams Society, which led to the prosecution of John Kiriakou, having sent 3 letters (1, 2, 3) memorializing the limits of Fitz’ authority.

I think part of the problem is that Holder didn’t really appoint special counsels to investigate this matter, even while he made a big deal of appointing the people who — US Attorney for DC Ronald Machen’s appointment rather then US Attorney for Eastern District of VA Neil MacBride aside — would have been investigating it anyway. Dumb. Congress was screaming for some kind of formality, and Holder didn’t establish that formality.

And then there’s the journalist-subpoenaing precedent of the Plame investigation where Fitz several times got letters clarifying his authority. The first of those reads,

By the authority vested in the Attorney General by law, including 28 U. S .C. §§ 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. § 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department’s investigation into the alleged unauthorized disclosure of a CIA employee’s identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department.

This came in handy later in the investigation when Libby’s lawyers challenged Fitz’ authority.

Then, Holder’s recusal hasn’t been very strict. Most troublingly, Eric Holder reviewed the letter James Cole sent to the AP (though Holder saw a draft which, according to his press conference, included things like details on the specific scope of the subpoena that don’t appear in the final letter). NPR’s Carrie Johnson asked him about this.

Johnson: Is that normal practice when you’re recused from a case?

Holder: No, I just wanted to see the le–I saw I mean I saw saw the draft letter this morning. And I just wanted to have an opportunity to see what it looked like so I’d have at least some sense of the case in case there were things in the letter that I could talk about with the press.

Reviewing this letter — particularly before changes got made to it!! (changes which appear to have deprived the AP of full notice of the call record grab) — simply isn’t appropriate for someone recused from the case!

Again, I’m not suggesting malice here.

But the AP has already — rightly, in my opinion — challenged whether DOJ complied with its own guidelines on media subpoenas. In particular, AP complained that they had not been given notice and an opportunity to cooperate. That’s one of the guidelines that requires AG involvement.

Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought. Such determination shall be reviewed by the Attorney General when considering a subpoena authorized under paragraph (e) of this section.

Yet the guy who signed this subpoena and with it signed off on the claim that alerting AP to the subpoena would do grave damage to the investigation  — James Cole — apparently has no piece of paper giving him authority to sign it.

If DOJ ultimately decides to charge the AP’s sources, if that person has the kind of legal representation DC bigwigs often have, I fully expect them to challenge every bit of their prosecution. After all, by subpoenaing the AP, Cole claimed that DOJ could not get the information from any other source. So if AP’s sources are indicted, they can rest assured that their prosecution went through this bottleneck of an Acting AG who had no paperwork to prove he had the authority to sign off on the claims he was making to get information he was certifying was absolutely necessary to find them. And from this subpoena forward, everything else will be fruit of a tainted AG, at least if you’ve got fancy lawyers.

Dumb.

One last thing. Also in today’s hearing, Holder admitted that it probably would have been a good idea to write down this recusal thing in public. Which, if they do ever charge AP’s sources and if said sources have the resources to make this obvious challenge, they’ll cite in court to document that even the guy who delegated this authority thinks it would be smarter if he did so in writing.

Seriously, this entire recusal process has been an own goal. As I said, I don’t think DOJ is pulling anything fishy. But the entire point of recusing is to ensure there’s proof nothing fishy happened. And in this case, DOJ has anything but.

John Brennan’s Kangaroo Court

Congratulations to Barack Obama, whose invisible hand censor has made Gitmo even more of a kangaroo court than it was under Bush.

As Jim laid out, over the last two days of Gitmo hearings, we saw (thanks to livetweeters like Carol Rosenberg, Jason Leopold, and Daphne Eviatar) someone improperly cut the feed from the court room to the journalists for 3 minutes, just as Khalid Sheikh Mohammed’s lawyer, David Nevin, started to read from his unclassified motion to preserve the black sites. After it happened, Judge James Pohl was rather angry about what he saw as an improper use of the censorship system. Today, it became clear that the OCA–the original classification authority–pressed the censor button, via some AV means that Judge Pohl either didn’t fully understand or want to discuss.

In other words, CIA has ultimate control over his court room.

For the last day, I’ve been predicting that Moral Rectitude Transparency and Assassination Czar John Brennan was responsible for the improper censorship. It was almost certainly some CIA minion Brennan will manage not long after his February 7 confirmation hearing rather than Brennan himself. Though remember–the legal record indicates that the National Security Council, and not CIA, asked to have torture made into a Special Access Program in the first place, though before most of the 9/11 detainees being tried were tortured (the exception, I think, is Ramzi bin al-Shibh). So either John Brennan in his guise as Obama’s NSC counterterrorism advisor or his rising CIA Director–ultimately, it was his portfolio censorsing unclassified information in the trial.

But it’s worth noting that this is the second time in a week that CIA has managed to dictate our legal process. Last Friday, John Kiriakou was sentenced for indirectly revealing to these same defense lawyers the identity of two of their client’s interrogators (one who actually engaged in the torture itself). DOJ originally decided that knowledge, by itself, did not merit charges. But CIA appealed to … John Brennan, and Patrick Fitzgerald was brought in and ultimately Kiriakou was delivered up as an example to cow others who might expose details of the torture program.

And then yesterday, you had a lawfully cleared defense motion being discussed in court, and CIA overruled the determination the trial judge had made, and ensured that journalists could not hear even that unclassified motion. Judge Pohl has deferred the discussion about preserving the black sites as evidence until next month, and it’s not clear whether the defendants or the journalists will be permitted to attend that hearing.

We shall see, next month, whether the CIA has taken over this judicial determination, as they did the judgement on the John Adams Project.

The Top Unmentioned Obama Replacement: Robert Mueller

A slew of second-term cabinet speculation articles have come out (National Journal, first posted before the election, and NYT and USAT today).

And while they seem to indicate Jack Lew is likely to replace TurboTaxTimmeh Geithner and Secretary of State will be the subject of active speculation for some time (with intriguing speculation that Howard Berman, who lost to Brad Sherman in CA, might be under consideration), one key role–albeit not of cabinet level–is missing:

FBI Director.

After all, Robert Mueller is already 2 years beyond his sell by date; Obama extended his term to get past the election (he said). And regardless of rank, the FBI Director is one of the most important figures in the increasingly powerful surveillance state.

And there have been some very troubling names mentioned in discussions to replace him, including NYPD’s Ray Kelly, who would really be the second incarnation of J Edgar Hoover’s abusive power. There had been speculation that Patrick Fitzgerald wanted the job, but his decision to join Skadden Arps just before the election suggests he knew he wasn’t going to get that job.

Particularly given Eric Holder’s apparent increasing doubt that he’ll stick around, we have the possibility of seeing something worse–all the capitulation we got from Holder in the first term, plus and FBI Director who has none of the claimed measure of Mueller (though I’ve always had my doubts about those claims).

A new FBI Director (which is guaranteed), particularly if it came with a new Attorney General, could either set a dramatic new course or harden in the old course. And I fear it is most likely to be the latter.

The US Attorney for CIA Scrambles to Cover-Up CIA’s Torture, Again

Bmaz just wrote a long post talking about the dilemma John Kiriakou faces as the government and his defense lawyers attempt to get him to accept a plea deal rather than go to trial for leaking the names of people–Thomas Donahue Fletcher and Deuce Martinez–associated with the torture program.

I’d like to look at four more aspects of this case:

  • The timing of this plea deal–reflecting a realization on the part of DOJ that their efforts to shield Fletcher would fail
  • CIA’s demand for a head
  • The improper cession of a special counsel investigation to the US Attorney for Eastern Virginia
  • The ongoing efforts to cover-up torture

The timing of the plea deal

Intelligence Identities Protection Act cases will always be risky to bring. By trying someone for leaking a CIA Agent’s identity, you call more attention to that identity. You risk exposing sources and methods in the course of proving the purportedly covert agent was really covert. And–as the case against Scooter Libby proved–IIPA often requires the testimony of spooks who lie to protect their own secrets.

There is a tremendous irony about this case in that John Kiriakou’s testimony in the Libby case would have gone a long way to prove that Libby knew Valerie Plame was covert when he started leaking her name, but now-Assistant Attorney General Lanny Breuer talked Patrick Fitzgerald out of having Kiriakou testify. Small world.

Bmaz notes that the docket suggests the rush to make a plea deal came after Leonie Brinkema ruled, on October 16, that the government didn’t need to prove Kiriakou intended to damage the country by leaking the names of a bunch of torturers. That ruling effectively made it difficult for Kiriakou to prove he was whistleblowing, by helping lawyers defending those who have been tortured figure out who the torturers were.

But the rush for a plea deal also comes after Matthew Cole and Julie Tate filed initial responses to Kiriakou’s subpoena on October 11. And after the government filed a sealed supplement to their CIPA motion that same day.

While both Cole and Tate argued that if they testified they’d have to reveal their confidential sources, Tate also had this to say in her declaration.

In 2008, my colleagues and I were investigating the CIA’s counterterrorism program now known as Rendition, Detention and Interrogation Program” (the “RDI Program”).

[snip]

I understand that defense counsel has subpoenaed me to testify about the methods I may have used to obtain the identity of CIA officers during 2008 while I was researching the RDI program.

Tate doesn’t say it explicitly, but it’s fairly clear she was able to get the identity of CIA officers involved in the torture program. Her use of the plural suggests she may have been able to get the identity of more than just Thomas Fletcher and Deuce Martinez. And she says she would have to reveal the research methods by which she was able to identify CIA officers who were supposedly covert.

Read more

Cheney’s Thugs Win the Prize for Leak Hypocrisy

I wasn’t much interested in Mitt Romney’s latest efforts to change the narrative from the evil things he profited off of at Bain Capital and the tax havens he stashed the money he got as a result. Not only don’t I think journalists will be all that interested in Mitt’s claim that Obama’s White House is a leaky sieve. But I’m not about to defend the Most Fucking Transparent™ White House in Fucking History against such accusations.

Until Cheney’s thugs start leading the attack.

Such as Eric Edelman, who says we need “change” because Obama’s Administration leaked details of the Osama bin Laden raid.

Eric Edelman is this guy:

Shortly after publication of the article in The New Republic, LIBBY spoke by telephone with his then Principal Deputy [Edelman] and discussed the article. That official asked LIBBY whether information about Wilson’s trip could be shared with the press to rebut the allegations that the Vice President had sent Wilson. LIBBY responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line

Four days after Edelman made the suggestion to leak information about Joe Wilson’s trip, Scooter Libby first revealed to Judy Miller that Valerie Plame worked at the CIA.

But Edelman is not the only one of Cheney’s thugs bewailing leakers: (h/t Laura Rozen, who follows BabyDick so I don’t have to)

Romney today at VFW on contemptible conduct of Obama White House leaking classified info for political gain. Must read. http://tinyurl.com/bw4s4lt

Now, to be fair to dear BabyDick, unlike Edelman she has not been directly implicated in her father’s deliberate exposure of a US CIA officer working to stop nuclear proliferation. Unlike Edelman, she was not protected from legal jeopardy by Scooter Libby’s lies.

But she did co-author her father’s book, which was a whitewash of his treachery (even if it did reveal that Cheney had a second interview with Pat Fitzgerald, one treated as a grand jury appearance, just around the time Fitzgerald subpoenaed Judy Miller. BabyDick Cheney is complicit in the lies the Cheney thugs have used to hide what a contemptible leak for political gain the Plame leak was.

And now she thinks she should lecture others about far less treacherous leaks?