Those Democratic Committee Chairs Aren’t COORDINATING, Are They?

Here’s a little timeline, just for fun.

May 30: Conyers troubled by McClellan’s revelations

June 3: Waxman writes to Mukasey, demanding Bush Cheney reports by June 10

June 9: Conyers schedules McClellan testimony for June 20

June 11: Mukasey has his underling reply to Waxman

June 16, 2008: Oversight subpoenas Mukasey for Bush Cheney reports

June 20, 2008: During McClellan hearing, Conyers announces he’s going to request the Bush Cheney reports

June 23, 2008: Due date on Oversight subpoena

June 24, 2008: DOJ tells Oversight to fuck off

June 26, 2008: HJC votes to subpoena Mukasey for a laundry list of documents

June 27, 2008: HJC delivers subpoena, including demand that Mukasey turn over the FBI reports on the Bush and Cheney interviews

June 27, 2008: Oversight requests documents from Fitzgerald

July 3, 2008: Due date for documents from Fitzgerald

July 7, 2008: Due date on HJC subpoena

Now, far be it for me to suggest that Henry Waxman and John Conyers–members of the same political party (!)–are in cahoots. In fact, all my experience with the Democrats since they’ve been in the majority makes me believe that the chances they’re working in tandem here are extremely small.

But still. Look at the dates. HJC only voted to subpoena Mukasey for the Bush and Cheney interview reports (and a laundry list of over materials) after Mukasey had already told Waxman to fuck off. And conveniently, Waxman has given Fitzgerald a deadline that comes before Mukasey’s deadline to hand over the reports to HJC.

You see, I can’t help but think that Oversight has a relatively weak claim to those interview reports. Ostensibly, they have asked for the reports to answer the following questions:

(l) How did such a serious violation of our national security occur? (2) Did the White House take the appropriate investigative and disciplinary steps after the breach occurred? ‘ And (3) what changes in White House procedures are necessary to prevent future violations of our national security from continuing?

In other words, Waxman has described the rationale of his request in terms of strict oversight roles–ostensibly to prevent someone else–besides the Barnacle, I guess–from outing CIA spy with impunity. DOJ has allowed Oversight to see (but not keep) interview reports showing clearly that Bush and Cheney not only didn’t launch an investigation into the leak. They obstructed justice, by exonerating Rove and Libby publicly. But if, given what Mukasey has seen and we haven’t seen, Bush and Cheney can claim they had declassified Plame’s identity before Libby and everyone else leaked it, well, then, the whole question of why they didn’t do an investigation is moot. Ditto the question of why they didn’t discipline Libby for leaking they had ordered and sanctioned. Furthermore, since Bush (and, the Barnacle would argue, Cheney) have absolute authority to declassify, it’s not like Oversight has a clear cut interest in seeing those interview reports.

Okay, I don’t buy that argument. But I channeled Steven Bradbury for a few minutes, and that’s what I came up with.

But HJC’s subpoenaing those documents pursuant to its inquiry into whether or not Bush’s Libby commutation was an improper attempt to cover up his own role in the outing of Valerie Wilson. If it was–as Kagro reminds us–it would constitute something our Forefathers found to be unacceptable.

The 1974 post-Watergate report of the House Judiciary Committee sez:

In the [Virginia constitutional ratifying] convention George Mason argued that the President might use his pardoning power to "pardon crimes which were advised by himself" or, before indictment or conviction, "to stop inquiry and prevent detection." James Madison responded:

[I]f the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty…63

And footnote 63?:

3 Elliot 497-98. Madison went on to [say] contrary to his position in the Philadelphia convention, that the President could be suspended when suspected, and his powers would devolve on the Vice President, who could likewise be suspended until impeached and convicted, if he were also suspected. Id. 49

And not only does HJC have oversight authority over DOJ–including the pardon authority. But HJC also happens to be the proper place to investigate just these kinds of abuses of authority. In fact, if HJC would just entertain the notion of impeaching Bush and Cheney for commuting Libby’s sentence so as to cover up their own role in the leak of Valerie Wilson’s identity, then they would have a rock solid case for those reports. As it is, they have a much stronger case for the reports than Oversight.

At least that’s what I conclude when I’m channeling Steven Bradbury.

Now, like I said, I don’t tend to see much evidence of coordination between committees in this Congress. And I don’t yet know precisely how Mukasey worded his "fuck off" response to Oversight–and specifically, whether he challenged Oversight’s rationale for requesting the documents. But if he did question their rationale, having HJC make their own request might be a sound strategy.

If you were part of an organized political party, that is.

Update: Additions to timeline per WO and WO.

35 replies
  1. victoria says:

    That is what really bothers me during these House committee investigations. There seems to be a total lack of coordination. Rather than develop a series of questions designed to meet specific goals these clowns would rather take up half their time extolling the virtues of their friends across the isle and preening in front of the camera before launching into unrelated questions rather than following up on the previous ones. Feh!

  2. MadDog says:

    OT – From Scotusblog:

    Circuit Court: No detention based on “bare assertions”

    In a significant rebuff of Pentagon policy on detainees, the D.C. Circuit Court has ruled that individuals cannot be labeled as enemies of the U.S. based on “bare assertions” not supported by “independent sources” that would make the claims reliable. Explaining a decision that it had reached on June 20, but released Monday only in a heavily edited form to protect secrets, the Circuit Court was sharply critical of the information contained in a handful of intelligence documents used to justify keeping a Chinese national imprisoned at Guantanamo Bay, Cuba…

    …The Circuit Court’s opinion, though omitting almost all of the specifics of the Pentagon’s evidence against Parhat because it is classified, did reveal that much of its information that suggested he had ties to a terrorist group came from “four U.S government intelligence documents, one from the Department of State and three from components of the Department of Defense.” The Circuit Court said, however, that Parhat’s lawyers had offered “substantial support” that the ultimate source of key claims in those documents came from China’s government, and that “Chinese reporting on the subject of the Uighurs cannot be regarded as objective.”

    The Circuit Court rejected two arguments that government lawyers had made to treat the evidence as reliable: first, that the evidence was asserted in three different documents, and, second, that the State and Defense Departments would not have put the information in intelligence documents without being satisfied that it was reliable.

    To this first, the panel, contrasting its views with those of author Lewis Carroll in his wry comment that saying something three times made it true, said it was not persuaded. “Many of those assertions,” it said, “are made in identical language, suggesting that later documents may merely be citing earlier ones, and hence that all may ultimately derive from a single source.”

    To the second, the panel said the argument “comes perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court.”

    Decision here.

  3. Leen says:

    Appreciate your timelines. “weak claim to those interview reports”

    Do we ever hear anything about the CIA’s damage report as a result of the Plame outing brought up?

  4. bmaz says:

    I guess the argument against the 1974 HJC paper channeling Madison (which I have long agreed with Kagro on, this is for the sake of argument) is that is they did declassify, then there is no crime in relation to Valerie that they are obstructing. Now, for impeachment, I don’t think it need be a form statutory crime (it doesn’t), and I guess this really only would take IIPA out anyway, could still leave treason I suppose. I dunno, being political, the mess always comes back to the same root answer: Impeachment is the proper remedy and Pelosi, Hoyer and Emmanuel will not permit it under any circumstance.

    • emptywheel says:

      Right. Either they outed a NOC out of spite, which is an egregious abuse of the executive’s absolute authority to declassify. Or they commuted someone to hide their own abuse of absolute declassification authority, which is an egregious abuse of the executive’s absolute authority to pardon.

    • earlofhuntingdon says:

      Sadly, that sounds right to me. If the President de-classified the identity of a covert intelligence agent, and agreed to the release of her identity and that of her cover, then doing so may not be a crime if the President’s classification authority, like his pardon authority, is unlimited.

      Doing so at all, and certainly without warning to the CIA, was reckless, in fact, it intentionally harmed the national security of the United States for personal partisan gain. That’s a crime of judgment and politics, which I think lies among the “high crimes and misdemeanors”. Congress is the best place to try such “crimes” and it refuses to do so for its own reasons, which equally disregards national security and common sense. The Democrats even refuse to call it that, as if refusing to call a lie a lie makes it the truth.

  5. bmaz says:

    Heh, you are asking me? I dunno, but I do know where the world’s greatest Plameologist hangs out. But bring an ice chest, cause the fridge is on the blink, and Sears ain’t getting with the program.

  6. Tross says:

    But does anything we’ve seen from HJC or Oversight indicate that they have any intention of following through on any of this?

    To my knowledge, all these requests and subpoenas are the equivalent of pissing in the wind since there is absolutely no chance that DOJ or the White House will give up anything unless forced.

    And we know ”the table” STILL has not been set.

  7. WilliamOckham says:

    The timeline should start earlier. This latest round came from McClellan’s publication.

    May 30: Conyers troubled by McClellan’s revelations.

    June 3: Waxman writes to Mukasey, demanding Bush Cheney reports by June 10.

    June 9: Conyers schedules McClellan testimony for June 20

    June 11: Mukasey has his underling reply to Waxman. [caution pdf link]

  8. alank says:

    And not only does HJC have oversight authority over DOJ–including the pardon authority. But HJC also happens to be the proper place to investigate just these kinds of abuses of authority. In fact, if HJC would just entertain the notion of impeaching Bush and Cheney for commuting Libby’s sentence so as to cover up their own role in the leak of Valerie Wilson’s identity, then they would have a rock solid case for those reports. As it is, they have a much stronger case for the reports than Oversight.

    This is rather compelling. Channeling certain has that effect.

    Btw, the more precise characterization of Mukasey response would be summed as a FOAD.

  9. Leen says:

    Whistleblower: FISA ‘compromise’ advances police state agenda
    By Nick Langewis | Uncategorized | Sunday, 29 June 2008

    Retired AT&T engineer Mark Klein has condemned the Senate’s Wednesday cloture vote on the FISA Amendments Act of 2008.

    • bmaz says:

      That letter is bull. They do NOT formally assert any privilege, nor any other substantive basis for refusal to produce. They allude to, without really saying it per se, executive and deliberative privilege, but in a diffuse manner. Probably because it is a total petulant ruse. Their arguments on separation of powers and all that baloney do not appear legitimate in the first instance had they asserted them to avoid talking to Fitz; come on, if they has had a leg to stand on, do you think they would have talked to Fitz in the first place? No. They made the least obtrusive deal they could with him and did it; but in so doing, they waived all these BS assertions (which were invalid to start with). At this point, I have seen NOTHING that places the portion of the evidentiary record in the investigation in United States v. Libby that concerns Bush and Cheney in any different posture than any other witness or investigative lead. Congress needs to win or go home.

      • WilliamOckham says:

        I agree. I wonder what they think is going to happen when Obama becomes President. Do they think he’ll refuse to turn them over? Past Presidents can’t invoke executive privilege, they depend on the current President to do that for them (like Bush did in the Judicial Watch case).

  10. WilliamOckham says:

    Here’s the nut ‘graph:

    There is an admirable tradition, extending back through Administrations of both political parties, of full cooperation by the White House with criminal investigations. In keeping with this tradition, the President and the Vice President (as well as the White House staff) cooperated voluntarily with the Special Counsel’s leak investigation and agreed to be interviewed informally outside the presence of the grand jury. Were future Presidents and Vice Presidents (or their staffs) to perceive that providing such voluntary interviews would create records that would likely be made available to Congress, there is a clear and unacceptable risk that they might limit the scope of any voluntary interview or insist that they will only testify pursuant to a grand jury subpoena and subject to the protection of the grand jury secrecy provision, Rule 6(e) of the Federal Rules of Criminal Procedure. Thus, if the Department were to make available records of voluntary interviews with the President and the Vice President (or release copies of the interview reports of senior White House staff), this precedent could create an unfortunate disincentive for voluntary cooperation with future Department criminal investigations involving official White House actions. Such a result would significantly impair the Department’s ability to conduct future law enforcement investigations where such investigations would benefit from full White House cooperation.

    • BayStateLibrul says:

      The DOJ is disappointed with the subpoena, then they go on to shove it
      up Waxman’s arse.
      Was this ghost written by our friend Fielding?

      • Helen says:

        Had to have been. It’s all about internal deliberations and executive privlege. Interestingly they also cite their concern that if the interviews are made public then maybe future presidents and VPs would not “voluntarily” talk to investigators. They may have to testify before a grand jury. So? I thought it was Fitz who made the accomodation, not the other way around.

        Oh and just for added fun. Clinton was “different.”

  11. Mary says:

    15 – when Democrats are running the show, it really doesn’t pay to be a whistleblower, does it?

  12. Mary says:

    4/18 – I think that declassification would get him out from under on the issue of an espionage act claim, but not an Intelligence Identities Protection Act claim.

    For the Espionage Act, the issue is revelation of information selected by the President to be kept “classified.” But for IIPA, there is no requirement that Executive Branch classification have been invoked, only that a covert identity is leaked. IOW, for IIPA, Congress picked the information that could not be leaked, while for EA, the President can pick the information.

    • bmaz says:

      Yeah, I dunno. Under IIPA, the government has to be taking active measures to conceal identity; if the President is declassifying and instructing his staff to disclose the name, sure seems like that element of the charge arguably fails.

  13. Mary says:

    2 – thanks for the links.

    This phrasing from the court is interesting in light of the “Set Obama’s Telecoms Free” legislation now pending:

    To affirm the Tribunal’s determination under such circumstances would be to place a judicial imprimatur on an act of essentially unreviewable executive discretion.

    You know, like a President’s exercise of discretion to tell a telecom to engage in warrantless spying on US citizens on US soil. The next sentence, then, become instructive:

    That is not what Congress directed us to do when it authorized judicial review of enemy combatant determinations under the Act.

    Oh. OK. Well, since that is exactly what the Democrats in Congress are directing the courts to do – give a judicial imprimatur of propriety to what was solely an Executive maldecision – at least we know that the Democrats with their FISA legislation are better at drafting Bush CYA than the Republicans were.

    Sometimes that silverlining is just the interior of the coffin.

  14. Mary says:

    27 – I think that’s why there was all the back and forth on whether or not CIA said she was covert at the time of the disclosure.

  15. RevBev says:

    In case anyone has been listening to the Hersh conversation: My Modest Proposal. For an act of radical favoritism, can we prevail on Pres. George Herber Walker Bush to call for the Impeachment of Pres. W, #43. Maybe we can get the good partnership of the Sr. Bush with Pres. Clinton to coordinate the effort. 43 has Iran in its sites; looking for a bogus excuse to go in. Of course without Congressional support or oversight. This is the perfect opportunity for the Sr. Bush to come to the aid of his country. LTEs? All the blog world. Let’s prevail on Pres. Bush 41 to speak truth to his tragically inept son in order to spare our country. Ideas?

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